Mill’s Applications of the Harm Principle

Here the liberty of individuals flows naturally into their freedom to interact for mutual benefit, but that doesn’t mean our social relations are always frictionless, or our free actions never have considerable negative effects on third parties. Matters are less straightforward than free trade when it comes to public decency, crime prevention, contractual limits, and compulsory education.

Mill observes that the preventive function of government is far more likely to be abused, to the prejudice of liberty, than the punitive function.² Any freedom could be put toward bad purposes, but using this possibility as an excuse to call for preemptive restraint would bring an even greater threat: social and legal authoritarianism pervading every aspect of our lives. Stopping my action on the remotest chance that I may act harmfully to others would likely be more harmful since my action is more likely to be neutral or beneficial to myself or others.

That said, society can place limits on the kinds of behavior people might engage in publicly, when it causes, or has a substantial risk of causing, harm or offense to others. Mill affirms that every adult has the presumptive liberty to engage in private vices. For instance, he defends a strong presumption in favor of the liberty for people to drink, even to excess, but this presumption is not unqualified. Those who have demonstrated a propensity to commit crimes when drunk may face special legal restrictions on their imbibery. “The making himself drunk, in a person whom drunkenness excites to do harm to others, is a crime against others.”³ Here we may not be able to separate the vice from the (risk of) crime. A modern-​day analogue involves operating a motor vehicle while intoxicated. Some libertarians may argue that motorists shouldn’t be charged with DUI unless they cause actual damage, but the fact remains that there is a qualitative difference in the risk of harm to others between being drunk in one’s home and choosing to be drunk behind the wheel of a deadly machine.

In addition to behavior that can pose harm to others, Mill defends restrictions on freedoms to commit public offensive acts contrary to good manners.⁴ Much of what constitutes “good manners” depends on social conventions and may vary by locality. Public nudity may be acceptable in some societies but not others, for instance. But the key element for allowing restriction is the public nature of the offense. People are still free to do what they wish in their private spheres. Moreover, legally actionable responses only apply to offensive acts, not offensive opinions. Presumably there is much greater social consensus on what constitutes offensive behavior, such that it can be rightly subject to legal sanction, but much less consensus on the opinions which some cherish but others find revolting, and which anyway never call for legal sanction. Mill doesn’t go into much detail about this act/​opinion distinction, however.

Mill argues that liberties to engage in self-​regarding harmful actions should be immune from coercion and reprobation, but not immune to advice or remonstration from those who disapprove of those actions. After all, they have a like freedom to express their disapproval, provided this avoids coercion. Conversely, “bad” advice to engage in disapproved activities is also allowed. Interestingly, though, Mill contends that legal and moral coercion are permissible for disapproved activities “when the instigator derives a personal benefit from his advice … to promote what society and the State consider to be an evil.”⁵ Fornication and gambling must be tolerated, “but should a person be free to be a pimp, or to keep a gambling house? The case is one of those which lie on the boundary line between two principles [liberty and harm to others], and it is not at once apparent to which of the two it properly belongs.” State or society can’t be wrong “in endeavoring to exclude the influence of solicitations which are not disinterested.”⁶

Nothing is lost “by so ordering matters that persons shall make their own election, either wisely or foolishly, on their own prompting, as free as possible from the arts of persons who stimulate their inclinations for interested purposes of their own.”⁷ Private gambling is permissible, but public gambling houses are not.⁸ One suspects that Mill would defend regulation of advertisements or algorithms that nudged people to make imprudent decisions.

However, it is unclear how the self-​serving motives of pimps, bartenders, or casino owners compromise or undermine the agency of a person inclined to engage in the relevant activities. The degree to which advertising or exhorting makes a given person act differently than they otherwise might act, solely by their own prompting, is difficult if not impossible to estimate. After all, we are always shaped but not determined by social influences. The matter which most concerns us involves someone who wouldn’t act viciously but for the influence of pimps and barkeeps. Still, there’s no evident fact of the matter: it’s not clear how we could determine that this person wasn’t inclined to act merely because a temptation wasn’t present, or whether they would be inclined to act when the temptation was present, or whether they would actively seek the temptation out of frustration at its absence! Revealed preferences are all we have as external observers, a point Mill would seem to appreciate.

If anything, given Mill’s emphasis on the virtue of individuality, resistance to the temptation of “instigators” would be an avenue for people to build character rather than relying passively on legal restrictions of vice merchants. He goes on to mention that it’s often better to let citizens govern themselves even if government experts could do better because this is a mode of strengthening their active faculties and exercising their judgement.⁹ Besides, what would drive someone to fornicate, quaff, or gamble in the first place if it weren’t from awareness of these options made possible by those with an interest (not always monetary) in promoting such activity? All it might take to initiate a lifetime of debauchery is that one fraternity guy who invites you to pledge at his keg party. If Mill thinks “pushers” should be prohibited from influencing choosers, why not defend prohibiting bad peer influence all the way back to one’s formative years, when one was likely more vulnerable to such influences?

It’s not that drawing a line between permissible liberty and harm to others is sometimes difficult and perhaps arbitrary in edge cases—rather, it’s unclear why any line needs to be drawn here unless “vice profiteer” influence diminishes the consumer’s agency on a par with how force, fraud, and coercion do so. Mill hasn’t shown that to be the case.

With this anomalous departure aside, Mill quickly returns to justifications of liberty restrictions solely on grounds of public not private good. States may tax alcohol for revenue purposes, just like any other commodity, but not with the justification of directly controlling consumption. They may also restrict the operation of drinking houses to “persons of known or vouched-​for respectability of conduct”¹⁰ in order to uphold public peace and order, not in order to treat the laboring class like savages and children who need the state to save them from their own imprudence. Here Mill departs from some contemporaries such as T.H. Green, who argued for prohibition of drinking houses so that laboring classes would not be tempted to sacrifice their positive freedom and autonomy for drunkenness.

Mill argues that people can’t be forced to stay in contracts that are injurious to themselves, but they may be required to pay damages for breach of contract. Voluntary slavery contracts, however, are non-​starters and unenforceable. By selling himself for a slave, a person “abdicates his liberty; he foregoes any future use of it beyond that single act. He therefore defeats, in his own case, the very purpose which is the justification of allowing him to dispose of himself.” Mill holds that he is no longer free, “but is thenceforth in a position which has no longer the presumption in its favour that would be afforded by his voluntarily remaining in it … It is not freedom to be allowed to alienate his freedom.”¹¹

One wonders, though, if Mill’s argument against voluntary slavery forces him to concede liberty restrictions in other areas. After all, the freedom to abuse substances—or commit suicide on a whim—also defeats the very purpose of allowing people to dispose freely of themselves since they are damaging or destroying their agency without compensating benefit. Indeed, perhaps any sufficiently agency-​diminishing action could in principle be subject to prohibition or restriction for the same liberty-​based considerations Mill offers against voluntary slavery.

Now Mill’s argument isn’t the only available one against slavery contracts. A Kantian view might hold that it’s conceptually impossible for a person to have a moral obligation to respect the terms of a contract that, by definition, strips him of all moral standing as an enslaved person. He can’t just will away his moral status through expressing consent to such an arrangement—the directive force of contracts presupposes that all parties are equal members of the moral community. A person may (de facto) act as if he were another’s slave, but his consent only lasts as long as he wills it, and contracts can’t intercede to continue the arrangement should he remove his consent. However, it’s unclear Mill can help himself to arguments like this without departing from his utilitarian commitments in an ad hoc manner. But if he can use this argument without philosophical conflict, he could avoid the above concerns about conceding far more infringements on liberty of self-​regarding decisions.

Regardless, some arrangements of his time amounted to slavery contracts, including the unequal standing of married partners. “The State, while it respects the liberty of each in what specially regards himself, is bound to maintain a vigilant control over his exercise of any power which it allows him to possess over others.” But this obligation is almost entirely disregarded in the case of family relations, “a case, in its direct influence on human happiness, more important than all others taken together.”¹² Husbands and fathers shouldn’t have despotic control over their wives or their children even if contracts at the time allowed such.

Slavery “contracts” fail to instantiate moral equality among the parties. By contrast, a valid marriage contract is an agreement between equals, one that (as Wilhelm von Humboldt argued) should be dissolved if at least one of the parties no longer finds the arrangement worth continuing. Issues may get complicated when children are involved, but the happiness of the parents in ending the marriage has some weight when balanced with the interests of children in the marriage staying intact. Indeed, depending on the nature of the situation, divorce may sometimes be beneficial for the children too.

Mill argues, somewhat datedly, that the state has the right and obligation to approve marriages only when the partners can afford to provide for any future children.¹³ While this may strike us as a bizarre prerogative for a liberal to endorse, since not all married couples aim to have offspring, we should remember he wrote at a time when reproductive freedoms were nowhere near the level we enjoy today. Mill hoped to avoid the societal harms of children born into misery and poverty, and the ensuing obligation of society to care for these orphans and homeless kids. Parents have no right to burden others through their own irresponsibility, but a prevailing attitude among many is that parents have carte blanche to bring as many children as they wish into existence, regardless of their subsequent condition. Mill thus wryly observes the odd inversion these attitudes reflect: “When we compare the strange respect of mankind for liberty with their strange want of respect for it, we might imagine that a man had an indispensable right to do harm to others, and no right at all to please himself without giving pain to anyone.”¹⁴

Mill argues that parents have positive obligations to provide the means for a minimally adequate education for their children, and he chides prevalent attitudes for not acknowledging these duties as obvious. “It still remains unrecognized that to bring a child into existence without a fair prospect of being able, not only to provide food for its body, but instruction and training for its mind is a moral crime, both against the unfortunate offspring and against society.”¹⁵Parents should be required to pay for their children’s education if they can, and the State should force those who are able but refuse to pay. Society should foot the bill otherwise.

Crucially, however, “the objections which are urged with reason against State education do not apply to the enforcement of education by the State.”¹⁶ The state itself should not determine the content of education but only ensure that a minimally decent education is provided, such as basic literacy and numeracy. Going beyond the fundamentals invites trouble, since “all that has been said of the importance of individuality of character, and diversity in opinions and modes of conduct, involves, as of the same unspeakable importance, diversity of education.” A general state-​run education would only mold people to be exactly like one another, and so state education should, at most, exist as one among many competing experiments.¹⁷

Minimal education adequacy should be tested by required exams on facts and positive science, but exams on disputed topics, like religion and politics, should be voluntary. Furthermore, the latter exams should not turn on the truth or falsehood of opinions but only on the examinee’s display of familiarity with the arguments for and against such opinions.

Mill concludes the book with some observations about the government’s relation to citizens. As a liberal, he looks askance at centralization for the most part. We should restrict the interference of government not only to allow individuals and civil societies to develop their own solutions to social issues, but to avoid adding power beyond what is necessary for government bureaucracy. Government operations tend to be everywhere alike. With individuals and voluntary associations, on the contrary, there are varied experiments and endless diversity of experience.¹⁸ Bureaucracy tends to work for its own interests, as no reform can be effected which is contrary to the interest of the bureaucracy. On every decree, it has a tacit veto by merely refraining from carrying it into effect.¹⁹

Mill also fears a government that attracts all the best and brightest citizens, leaving no equally talented minds to monitor government from the outside as commentators and voters. The “absorption of all the principal ability of the country into the governing body is fatal, sooner or later, to the mental activity and progressiveness of the body itself.” This is due to the institutional incentives of bureaucracy, which “necessarily proceeds in a great measure by fixed rules” and thus tempts members of the official body to sink into indolent routine.²⁰ While not using the term, Mill exhorts the talented to focus their efforts on entrepreneurial activity and decentralized experimentation rather than all running to be civil servants.

However, Mill also acknowledges the advantages of centralization, especially as a source of compiling and dispersing information received from diverse regional and local forms of governance. But the danger is this centralized institution then overriding polycentric orders, taking itself to be the one expert on how to govern, rather than letting decentralized institutions experiment and learn from publicly available information about other institutions. One of the most difficult and complicated questions in the art of government is how to secure “as much of the advantages of centralized power and intelligence as can be had without turning into governmental channels too great a proportion of the general activity.” Mill seeks the “greatest dissemination of power consistent with efficiency; but the greatest possible centralization of information and diffusion of it from the centre.”²¹

Mill concludes by observing that the whole point of states and governments is to serve the function of allowing individuals to actively flourish. The worth of a state is the worth of the individuals composing it. A state which postpones the mental expansion and elevation of its own employees to little more than administrative skill will leave them unable to govern responsibly. A state “which dwarfs its men, in order that they may be more docile instruments in its hands even for beneficial purposes—will find that with small men no great thing can really be accomplished.”²² The same goes with the citizens of such a state.