Saturday, September 27, 2003
J.S. Mill's Harm Principle
Yesterday I suggested that for day-to-day regulation of cocaine (and similarly for heroin and
marijuana and the other currently illegal drugs), the criminal law is an improper tool. This position
has a long pedigree, first receiving a systematic treatment in John Stuart Mill's On Liberty,
published in 1859. Today I thought I would expound a bit on Mill and his "harm principle."
The question Mill asked himself was, under what conditions should the government (or society
more generally) intervene in the activities of individuals? Mill's answer has become known as
the "harm principle":
...the only purpose for which power can be rightfully
exercised over any member of a civilised community,
against his will, is to prevent harm to others. His
own good, either physical or moral, is not a sufficient
Social coercion exercised over you for your own good, in the absence of "harm to others,"
violates your liberty. Of course, Mill quickly offers the requisite qualification, "that this doctrine
is meant to apply only to human beings in the maturity of their faculties."
Most vice is what Mill referred to as "self-regarding" conduct, which does not directly harm
other people, though it may harm the person engaging in it. And so the harm principle
presents a barrier, though not necessarily an insuperable one, to the societal regulation
of vice or other types of self-regarding conduct.
This is all fine and good, but Mill's principle is tricky to apply in practice, because the line
between self-regarding behavior and other-regarding behavior is murky. Mill gave many
examples, however, to help delineate where he thought the boundary is located. Mill's harm
principle seems to rule out general prohibitions against adult indulgence in most vices:
there would be no such thing as an illegal drug, for instance, were a straightforward
interpretation of the harm principle the guiding force underlying our vice laws. Likewise,
prostitution and all other forms of consensual sex involving adults would not be criminal
matters. Drugs and sex could still be regulated, and perhaps even regulated quite strictly,
under the standard established by the harm principle, but the private use of drugs
and private exchanges for sex could not be forbidden to adults.
The harm principle continues to hold some appeal, not least because once it is
discarded, it looks as if anything a majority (or the relevant ruler) dislikes
can be banned. In Uzbekistan, billiards are prohibited; in Turkmenistan, opera
and ballet are outlawed; and rock music has been banned in more than one
Muslim society. If you don't adopt the harm principle, you have a hard time
providing a principled argument against the propriety of these sorts of bans.
So drug prohibitionists rarely say that they are not beholden to the harm principle.
(Some do eschew the harm principle, however.) Rather, they tend to point to three of
the three and one-third standard vice concerns (kids, addicts, externalities)
to argue that drug use is not self-regarding behavior. This is generally (not always) an
incorrect claim -- Mill was explicit in saying that a ban on alcohol would not be consistent
with the harm principle -- but I will postpone further discusison on that. I will repeat,
however, that though the harm principle would generally rule out broad bans on vicious
activity, many quite stringent regulations would be acceptable, even to a committed Millian.