Harm Principle
Harm Principle Meaning
When looking at Law and Morality the harm principle arises out of the dominant influence of one particular person – John Stewart Mill “On Liberty”. John Stewart Mill was concerned with the notion of what is now called the majoritarian difficulty; that is, how individual liberty can be protected in the face of democratic institutions and more specifically, the rule of the majority. Overall, the harm principle is an important ethical and legal concept that seeks to balance individual freedom and social welfare.
It essentially has two parts:
The first part relates to how human beings should act in society. Mill argues that individuals should be permitted to act as freely as they want, up to that point at which their freedom inflicts a harm on another person – you can do what you want as a free human being endowed with rationality and free will, up until the point at which your liberty infringes on the liberty of someone else by inflicting harm on them. The most important part for Mill was this notion of how individuals react to each other in society.
The second part of the harm principle is the question of what this rule means and how it is translated into rules of government and law in particular. The answer to this is that the role of law is to do two things:
permissive - It promotes liberty by enabling people to make rational free choices.
prohibitive - it prohibits people from harming others.
In theory, the government has these two primary roles. This is used as a normative basis for discussing whether a law is a good law or a bad law, which makes it closer to natural law theories.
Problems with the Harm Principle
This becomes problematic when people opposed to this particular notion argue against it:
Who is this free rational human being who is making these free choices to promote liberty? Historically, this was a white male of a certain age and class – the fully emancipated human. The ‘individual’ did not represent the majority.
Implicit in this there is some notion that people make rational choices.
The next level of difficulty in constructing this individual is the assumption that the individual is isolated from development.
It may be difficult to see who falls into the category of human beings – are children human beings? There are many legal prohibits which prevent children from doing something, which could be interpreted as something which limits their liberty and is thus a bad law. The problem in relation to some of these categories is that the law has tended to operate for some groups only in one particular way, e.g. children. Children are legal subjects and their rights to liberty are protected by legislation – you cannot hit a child. However, while they are protected, they do not have permissive liberty – they cannot vote or drive until they reach a particular age.
who is a legal subject?
The first problem we have is identifying who a legal subject is. If the of the individual falls into either side of the line, you may or may not come afoul of the harm principle.
For example:
There is a state which says that prisoners on death row are not entitled to the same rights, liberties and protection of life as the rest of society. The only way the liberty theory will evade this is if you get around the first hurdle of falling into the catorgey of person enjoying that right (to which the theory offers no answer).
If the state determines this, you have done nothing but adopt legal positivism as a foundational norm. As a result, any prohibition of a prisoners right to life is an infringement of liberty and justified.
Defining harm
The second problem lies in defining harm. Presuming you can do this, you also have to consider whether it is the only possible definition of it.
For example:
Animal rights. According to Mill and liberty theory, animals do not have rights as they are not human beings. At this level, you can inflict whatever you want on an animal. Indeed, this may be a good thing – maybe you can argue that because individuals obtain pleasure from eating meat, and because pleasure is an expression of individual liberty then the state should not only permit this to happen but could encourage it, because it increases public happiness and allows for more liberty.
So, if you are a Mill follower who does not like torturing animals, you must create an argument that this act of torture inflicts harm on someone else, e.g. by killing animals you are offending the sensibilities of someone who doesn’t find it pleasurable.
This brings us to the basic problem of what harm is.
Does it encompass physical injury, economic deprivation, social stigmatization or all of the above?
Can you say that the contract between the owner of a business and the worker of a business (on the surface, an expression of free will) should be prohibited because work inflicts harm on those who have to work?
Should the state criminalize work and enable everyone to get money to do what they want?
The response to this from libertarians is that:
the original contract is an exercise of freewill for mutual benefit, and that
the only permissible infringement on liberty isn’t just this notion of inflicting harm on others but that you can decide to have harm inflicted on you, i.e. you can freely decide to give up your liberty.
Taking this into account, can the state prohibit a contract for slavery for which the slave will be paid? Essentially, this is a contract entered into by free will for the mutual benefit of both.
Does this libertarian analysis allow you to say that what was done was right or wrong? (e.g. torture a la 24!) or do you need a basic ethical position which was enforced by some natural law understanding of right and wrong? Do you need utilitarian view? Does torturing a terrorist produce good for society?
Liberty v. Harm
The problem, at a conceptual level, in the second part of this theory is that once you get beyond this notion that the individual does has this freedom to which there is no harm done to another, there may at some point in time be a conflict between the promotion of positive liberty and the prohibition of harm.
In order to prevent harm, the state may have to infringe on the liberty of an individual.
The public interest v. liberty
If you see Millsian jurisprudence purely on terms of free rational human beings exercising their own personal preferences, you will have to inflict harm on some individuals in order to promote the liberty of other individuals. If you look at things purely as Mill does, in terms of society as nothing more than a conglomeration of individuals exercising their rational frees choice. There is no basis on which you can do this.
The consequence of this public/private distinction is that the question that has to be answered is where, if at all, is there a duty on the state in relation to its citizens to allow them access to public facilities in relation to private choice?
The argument here is that there is no public to which the state owes a duty – there are only individuals. If so, you need a more sophisticated argument in relation to the relationship between the public interests and liberty. The problem is that at this stage you have these problems in relation to defining harm – if the public becomes a legally relevant creative fiction, there will always be a public interest. If you have a public interest analysis, you no longer have liberty.
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