Political Philosophy II: Theories of Freedom

John Stuart Mill's On Liberty is one of the foundational defenses of liberal, democratic government. According to Mill, there are certain core principles "that should regulate how governments and societies, whether democratic or not, can restrict individual liberties."[footnoteRef:1] Mill wrote that regardless of whether a monarch, dictator, or even a democratic majority governed, the only reason to deprive others of their liberties was what he called the harm principle, namely, that "a harm, an action must be injurious or set back important interests of particular people, interests in which they have rights" and "justifies restricting liberty to prevent harm to others."[footnoteRef:2] In defining the harm principle, Mill's intentions were clearly noble in that he wished to prevent the illegitimate use of power by the state to restrict free speech, sexual behavior, or other personal, private choices. However, since Mill wrote, even a number of sympathetic philosophers have found the harm principle to be problematic because of its failure to consider social consequences of apparently self-injurious activities. [1: David Brink, "Mill's Moral and Political Philosophy," The Stanford Encyclopedia of Philosophy, 2016, https://plato.stanford.edu/archives/win2016/entries/mill-moral-political/>.] [2: Ibid.]

Further Elucidation of the Harm Principle

First and foremost, to critique the harm principle, it is essential to understand what constitutes harm in Mill's estimation. A harm is something far more serious than what Mill categorizes as a "mere offense;" rather while "offenses tend to be comparatively minor and ephemeral," a harm is "an action [that] must be injurious or set back important interests of particular people, interests in which they have rights." [footnoteRef:3] A distinction between harm and offense is critical, given that many personal decisions may give offense to someone but not do them any harm. For example, it might offend me that my neighbor engages in sexual activity outside of marriage, but this does me no real harm. Mill notes that it might give him offense that certain individuals prefer certain types of literature and music over others but the fact that some people do not is not an actual harm to himself. [3: Ibid.]

The harm principle does not only refer to actions which take place after the fact. "In many cases all we could reasonably know is that a given action risks harm."[footnoteRef:4] Thus, an individual driving while intoxicated would still be violating the harm principle even if he or she did not injure another individual because this is still known, risky behavior towards other drivers. Similarly, a decision by a company to disregard basic safety principles in producing toys for children would also be regarded as a violation of the harm principle given that this could feasibly result in deaths, even if no actual deaths are reported. The state has a legitimate interest in outlawing such activities on the basis of their potential risk. [4: Ibid.]

On the other hand, Mill always wishes to err on the side of not regulating; in a stance commensurate with his utilitarian principles articulated elsewhere, Mill is intent upon doing the greatest good for the greatest possible number of people. Regulation... If the regulation is more harmful than the behavior in question, it may be best not to regulate, despite the pro tanto case for regulation"[footnoteRef:5] It is here the challenges ensue of weighing the different rights of one individual versus another or against society as a whole arise. For example, mandating that health insurance be provided for all employees by employers who possess businesses of a certain size (say over fifty people) is designed to prevent the harm of leaving persons uninsured. But mandating coverage may cause harms to a business owner because of the expense and to the public when additional costs are passed on to consumers. The question of whether the regulation is more harmful than the benefit accrued by the regulation is less obvious. In some instances, such as legalizing gay marriage, any potential harms (supposed infractions of individual's religious beliefs) may seem obviously outweighed by the benefits of according full liberties to gay and lesbian people. But with other decisions, the cost-benefit analysis of the harms of regulation versus not regulating are not so obvious. [5: Ibid.]
Of course, Mill himself was cognizant of this fact, as an inhabitant of a capitalist society. Capitalism by its very nature has a divide between the haves and the have nots. Mill supports this, given his view that "there are some actions which harm others, but which should nevertheless be allowed."[footnoteRef:6] Economic competition is not the same as fraud because "allowing economic competition, Mill thought, contributes more to the general welfare of society than preventing it."[footnoteRef:7] Commensurate with his utilitarian principles, Mill did not view liberty and the harm principle as an expression of individual rights as much as he saw it as furthering the good of society. [6: Michael Lacewing, "Mill's harm principle," Routledge, 2-3. http://documents.routledge-interactive.s3.amazonaws.com/9781138793934/A2/Mill/MillHarm.pdf] [7: Ibid.]

Restricting Pork and Other Example

Mill himself, even when he wrote On Liberty, was cognizant of objections to his harm principle. One example he notes is that of the prohibition to the consumption of pork in Muslim countries. According to the harm principle, Mill asserts that this merely restricts liberty and forces individuals to conform to religious dictates. "It is, in the first place, an offence against their religion . . . that peculiar character, resembling an instinctive antipathy, which [is] the idea of uncleanness . . . "[footnoteRef:8] For Mill, the prohibition of pork is solely rooted in religious prejudice and thus cannot be defensible. The result is merely the restriction of liberty and harm is done to others and there is no rational benefit accrued to the majority. It is analogous to the Puritans banning the practice of the theater. "Wherever the Puritans have been sufficiently powerful . . . they have endeavored, with considerable success, to put down all public, and nearly all private, amusements."[footnoteRef:9] [8: John Stuart Mill, On Liberty, Project Gutenberg, https://www.gutenberg.org/files/34901/34901-h/34901-h.htm 161] [9: Ibid., 164]

Mill notes that the same is true with prohibition of alcohol…