The Harm Principle states that interference in self-regarding conduct is illegitimate except where that conduct may cause harm to others. Mill’s statement of this principle explicitly rejects other possible reasons for intervention:
His own good, either physical or moral, is not a sufficient warrant. He cannot rightfully be compelled to do or forbear because it will be better for him to do so, because it will make him happier, because, in the opinions of others, to do so would be wise, or even right. 1.9
This passage refers to two further legal justifications: paternalism (‘because it will be better for him to do so’) and moralism (‘to do so would be wise, or even right’). Mill denies that either provides sufficient reason to interfere with an individual’s freedom. This is one of the more radical aspects of Mill’s position in On Liberty. Social morality has, throughout history, been considered a significant factor in the legitimacy of the law.
The likings and dislikings of society, or of some powerful portion of it, are thus the main thing which has practically determined the rules laid down for general observance, under the penalties of law or opinion. 1.7
Mill, however, defines the boundaries of liberty without reference to the prevailing morality. This is not because Mill lacked moral conviction: on the contrary, he was not afraid to judge certain private actions as immoral. He was, however, unwilling to use such judgements as a guide to society’s jurisdiction. In some ways, Mill believed in the value of customary social values: the traditional moral rules against theft, adultery, violence and so on have considerable utility. They can also act as a yardstick for judging when other-regarding actions deserve public disapproval:
On questions of social morality, of duty to others, the opinion of the public, that is, of an overruling majority, though often wrong, is likely to be still oftener right; because on such questions they are only required to judge of their own interests; of the manner in which some mode of conduct, if allowed to be practised, would affect themselves. 4.12
But this is restricted to other-regarding conduct involving ‘duty to others’. Moral judgement of self-regarding actions – such as taking offence at personal choices – cannot justify interference.
... the opinion of a similar majority, imposed as a law on the minority, on questions of self-regarding conduct, is quite as likely to be wrong as right; for in these cases public opinion means, at the best, some people’s opinion of what is good or bad for other people; while very often it does not even mean that; the public, with the most perfect indifference, passing over the pleasure or convenience of those whose conduct they censure, and considering only their own preference. 4.12
Moral preferences are not sufficient grounds for society to intervene in private activity. Mill defends this principle vigorously and objects outright to any form of legal moralism. Some thinkers, however, have judged that the Harm Principle excludes too much, and that governments can legitimately exercise authority over individuals for other reasons.
Legal moralism is the view that the law may prohibit behaviour in conflict with society’s collective moral judgements, even when that behaviour does not lead to perceptible harm. Over the years, and in different countries, such a position has justified the criminalisation of homosexuality, prostitution and pornography. It seems that sex draws the moralists’ ire more than anything else.
If it could be shown that all immoral conduct is harmful, then immoral conduct would not be protected by the Harm Principle. But this seems unlikely. Although extreme transgressions like rape, murder and theft cause harm to others, it does not necessarily follow that all immoral conduct does so. Some have claimed that immorality necessarily harms the agent, but even if that were so, such conduct is (in the absence of victims) properly self-regarding and therefore protected by the Harm Principle.
The most famous statement of legal moralism was Lord Devlin’s 1958 essay Morals and the Criminal Law. This was written in part as a response to the Wolfenden Report of the previous year which had recommended the decriminalisation of homosexuality. Of course, homosexual acts between consenting adults fall squarely within Mill’s protected zone of harmless and self-regarding behaviour, and the Wolfenden report defended this position robustly:
... there must remain a realm of private morality and immorality which is, in brief and crude terms, not the law’s business. §62
Devlin disagreed strongly with this conclusion and insisted that morality is the law’s business since it is fundamental to a society’s existence that it has some moral conformity:
... society may use the law to preserve morality in the same way as it uses it to safeguard anything else that is essential to its existence.
The morality that Devlin defends is of a relativist strain – that held by ‘the man in the Clapham omnibus’ who, probably, would have found homosexuality abhorrent in 1957. If a society has no moral aversion to homosexuality, then the law has no business prohibiting it. But in a society whose ‘public morality’ opposes such conduct, the law can be used to reinforce that opposition. There is no contradiction, therefore, in neighbouring countries having different laws regarding the same action, if those countries also have different moralities.
Of course, there are plenty of examples in history of societies defending entrenched moral values that we now see clearly as misguided, even wrong: think of apartheid, religious inquisition or the suppression of women’s rights. Given the shifting nature of public morality, it seems an unsuitable grounds for legislation. The Wolfenden report was strongly defended by H L A Hart who offered Millian arguments in its support, and the homosexual law was finally repealed a decade later by the Sexual Offences Act of 1967.
Nevertheless there are still certain acts that seem to be susceptible to legal prohibition on purely moral grounds (since they cause no perceptible harm). Examples include actions that fail to reach their end, like attempted murder; certain sexual practices like incest; and offences against non-living (desecration of the dead) and non-human (bestiality) targets. While most people would find such actions morally repugnant, to insist that they should also be illegal is to reject Mill’s argument for liberty which insists that moral feeling has no role to play in legislation.
That is exactly what James Fitzjames Stephen argued in his rejection of Mill’s position. For Stephen, ‘gross licentiousness, monstrous extravagance, ridiculous vanity, or the like’ are indeed a danger to society:
If, however, the restraints on immorality are the main safeguards of society against influences which might be fatal to it, why treat them as if they were bad? Why draw so strongly marked a line between social and legal penalties? ch 1
Mill’s insistence that immorality should not be considered ‘harmful’ in the sense that his principle requires is based on a clear distinction between self-regarding and other-regarding conduct. Stephen objects, perhaps too strongly, that this distinction is groundless:
Yet from one end of his essay to the other I find no proof and no attempt to give the proper and appropriate proof of it. ch 1
Legal paternalism is the view that the law may legitimately prohibit self-regarding conduct if it is in the agent’s best interests to do so – for example, to prevent individuals hurting themselves. On the surface, this seems to be an acceptable extension of state authority: it lies behind the laws regarding the compulsory use of seat belts and motorcycle helmets, and compulsory education for minors (which was also championed by Mill himself). The arguments for paternalistic intervention are persuasive: since rational individuals seek certain goods like health and education, it is therefore reasonable for the state to use its authority to protect and promote such goods.
Mill acknowledges these arguments quite openly:
If gambling, or drunkenness, or incontinence, or idleness, or uncleanliness, are as injurious to happiness, and as great a hindrance to improvement, as many or most of the acts prohibited by law, why (it may be asked) should not law, so far as is consistent with practicability and social convenience, endeavour to repress these also? 4.9
This is not a simple question of infringing on an individual’s liberty. Mill is also concerned with situations where a person’s liberty remains unaffected. In all such cases, he wonders:
... whether the government should do, or cause to be done, something for their benefit, instead of leaving it to be done by themselves, individually, or in voluntary combination. 5.16
As his support of compulsory education suggests, Mill allowed for a degree of paternalism over the young and over uncivilised peoples, since the Harm Principle would not be in their best interests. Otherwise Mill was opposed to legal paternalism and presents three arguments to support his claim.
First, there are many cases where individuals simply do the job better than the state could: the prime example here is that of business, where people have a personal stake in the best outcome. Second, even in situations where the state may act more effectively, there is much to be gained from allowing individuals to shoulder the burden. People benefit from the experience of governance and their faculties are stretched and strengthened: Mill is thinking here of jury duty, local government and volunteer organisations. Such roles are another opportunity for individual and social progress and suit Mill’s progressive aims. Third, paternalistic intervention is a slippery slope that, over time, increases the scope of government authority and deprives the public of their independence. A bloated bureaucracy – as in Tsarist Russia – is inimical to individual ambition and leads to social stagnation:
Every function superadded to those already exercised by the government, causes its influence over hopes and fears to be more widely diffused, and converts, more and more, the active and ambitious part of the public into hangers-on of the government, or of some party which aims at becoming the government. 5.20
More generally, however, Mill firmly believed that individuals are a better judge of their own good than governments are:
... with respect to his own feelings and circumstances, the most ordinary man or woman has means of knowledge immeasurably surpassing those that can be possessed by any one else. The interference of society to overrule his judgment and purposes in what only regards himself, must be grounded on general presumptions; which may be altogether wrong, and even if right, are as likely as not to be misapplied to individual cases, by persons no better acquainted with the circumstances of such cases than those are who look at them merely from without. 4.4
All of these arguments are ultimately justified in consequentialist terms. In each case, greater utility is gained by the government’s not interfering. At the end of the latter paragraph, Mill states explicitly:
All errors which he is likely to commit against advice and warning, are far outweighed by the evil of allowing others to constrain him to what they deem his good. 4.4
Plausible as this is, it presents a problem. Mill argues that freedom from intervention increases utility. But what if paternalism were successful? What if, by interfering here and there in people’s lives with the best of intentions, the state succeeded in making people safer and happier? This is the objection raised by James Fitzjames Stephen, who argued pessimistically that ordinary people are not best served by freedom:
... there are and always will be in the world an enormous mass of bad and indifferent people—people who deliberately do all sorts of things which they ought not to do, and leave undone all sorts of things which they ought to do. Estimate the proportion of men and women who are selfish, sensual, frivolous, idle, absolutely commonplace and wrapped up in the smallest of petty routines, and consider how far the freest of free discussion is likely to improve them. The only way by which it is practically possible to act upon them at all is by compulsion or restraint. Whether it is worth while to apply to them both or either I do not now inquire; I confine myself to saying that the utmost conceivable liberty which could be bestowed upon them would not in the least degree tend to improve them. ch 1
The Hobbesian tone of Stephen’s attack may be distasteful but the central claim is at least plausible. Successful paternalism, which increases general wellbeing, seems fully justifiable in utilitarian terms; and extended liberty will not in every case provide the best outcome.
Many people feel that we have the right to make mistakes in our lives, that there is a value even to those bad choices. That right can, indirectly, be defended in utilitarian terms. For Mill, self-determination brings its own rewards: the exercise of autonomy, even if done unwisely, will always outweigh any short-term advantage brought by paternalistic intervention. Throughout On Liberty freedom appears as the greater good in many unexpected situations, and it is worth asking whether Mill – despite his utilitarian intentions – elevates autonomy over happiness, and whether freedom and utility are, in fact, as closely connected as Mill would like to think.