The Harm Principle of John Stuart Mill - Essay Example

John Stuart Mill's Harm Principle of Institute] John Stuart Mill's Harm Principle Similarly, in an early essay in 1973 en d Moral Enforcement and the Harm Principle--an essay which would sketch the contours of his later four-volume treatise on The Moral Limits of the Criminal Law--Professor Joel Feinberg rehearsed Mill's harm principle and he, too, pared the principle down to its original, simple formulation Mill, the prevention of harm is commonly thought to delimit the extent of permissible political interference with a person's liberty1. This view is put forward in his famous harm principle, the principle that, ". the only purpose for which power can be rightfully exercised over any member of a civilized community, against his will, is to prevent harm to others." The problem with applying Mill's principle is determining what is to count as a harm1. If we count mere hurt, offence, annoyance, and mental distress as harms, the principle will countenance political interference with nearly every activity, and liberty will amount to naught. On the other hand, if we count only physical damage to persons as harm, most every activity will be permitted and there will be little scope for the political protection of persons. (Kernohan, 1993, 2-5) Certain harms, however, had an interesting structure which straddles these extremes; sometimes activities which, individually, are merely annoying, innocuous, or even beneficial add up to doing physical damage or severe harm. Following Feinberg, R.V Brown call these "accumulative harms," and argue that, even on a stringent conception of harm. Mill's harm principle should be interpreted as requiring political interference to prevent them. There is a related ambiguity in the interpretation of the harm principle. Should the principle offer protection against harms or only against harmful conduct Harmful conduct is activity done either maliciously or recklessly that causes harm to others. (Kernohan, 1993, 2-5) The harmful conduct interpretation fits most naturally with the background, individualist assumption of our legal system regarding the assignment of blame and responsibility to individuals. Harms must be assigned to individuals in order for legal mechanisms of guilt and liability to work1. Hence individual harmful conduct must be identified in order to use the harm principle. Harms, though, are setbacks to people's interests whether or not brought about by harmful conduct. All harmful conduct, by definition, results in harm, and, most often, harms result from harmful conduct. But these two notions come apart in the prevention of accumulative harms. An accumulative harm is a harm done by a group, not to a group. It is a harm to another person brought about by the actions of a group of people where the action of no single member of that group is sufficient, by itself, to cause the harm. Most often, an accumulative harm will also be a public harm, a harm which cannot be done to one individual without at the same time being done to a whole community or populace, but there is no conceptual necessity to this fact; accumulative harms may be serious individual harms. (Kernohan, 1993, 2-5) Feinberg describes the accumulative harm of air pollution like this: Sometimes one individual source of pollution may cross the threshold into harm all by itself, but often many sources are needed. The accumulative harm cases, however, cannot be said to involve harmful conduct; no individual, maliciously or recklessly, causes the accumulative harm2. Protection, therefore, against the tyranny of the magistrate is not enough; there needs protection also against the tyranny of the prevailing opinion and feeling, against the tendency of society to impose, by other means than civil penalties, its own ideas as rules of conduct on those who dissent from them. Public opinion, ostracism, harassing environments, and pornography are all accumulative harms. In this essay R.V Brown mostly focus on forms of pollution as examples of accumulative harms. (Harcourt, 1999, 10-14) This is because R.V Brown had in mind defending the accumulative interpretation of the harm principle from the position most antithetical to it, libertarianism. Libertarians work with a very stringent notion of harm; only harms to liberty, property, and personal security count. So pollution from a single source is a harm, even for the libertarian2. The trick will be to show that even in situations where a share in the harm of pollution cannot be imputed to any individual, the libertarian has no argument against government interference to prevent the accumulative harm. To the libertarian, all types of government intervention criminal prohibition, legislative regulation, fiscal discrimination or environmental education can only be permitted by the harm principle; broader liberty limiting principles, like, for example, the offence principle, cannot justify government intervention. If the accumulative interpretation can be defended to the libertarian, it should be defensible to anyone. Accumulative Harms and Harmless Effects Let me begin by describing how accumulative harms can arise out of otherwise harmless activities. To prevent an easy misunderstanding, let me reiterate that R.V BROWN is talking here of harms by collections of people, not of harms to collections of people. (Harcourt, 1999, 10-14) Harms to collectivities are a species of public harm. A public harm, done by an individual or by a group, is a harm that cannot be done to an individual without at the same time being done to the whole group. A public harm can take two forms: Either it is a harm to the interests of individual members of the group, or it is a harm to the group's interests that is not a harm to the interests of any individual member3. The latter, a harm to a collectivity, is the sort of harm that could give rise to what are often called collective rights. For example, Raz characterises a collective right as a right whose correlative dudes are justified by the interests of individual members of a group in a public good where " the interest of no single member of that group in that public good is sufficient by itself to justify holding another person to be subject to a duty." A harm by a collective, what R.V Brown is going to call an accumulative harm, is the converse of a harm to a collective. (Harcourt, 1999, 10-14) An accumulative harm is done when the actions of a group of people bring about a harm to another person, but where the actions of no single member of that group is sufficient, by itself, to bring about that harm. In such cases, there are no reasonable grounds for saying that any particular source of pollution has caused the harm. Consider the harm done to the mental development of children by the accumulation of lead in the household3. The lead accumulation is brought about by the burning of "regular" or leaded gasoline in automobile engines. Serious harms had been done to individual children, but there is no way to see any individual automobile driver as causing this harm. No individual driving is sufficient to bring about the harmful accumulation. No individual driving is necessary for the harm to occur; the accumulation would had happened anyway whether any one individual drove or not4. No driving is a sine qua non of the harm. No driving is an insufficient but necessary part of an unnecessary but sufficient condition of the harm (an INUS condition). The marginal contribution of any individual driver to the risk of harm is so minimal as to be insignificant. Not even the threshold driver is the proximate cause of harm, because that driver's doing harm depends on the simultaneous voluntary acts of thousands of other similar drivers. There likely is no threshold driver. There may be a threshold point in time when the accumulation of lead began to do harm, but no doubt there were many, many individuals driving their cars at that instant. (Gal , 2002, , 5-7) As well, this threshold point is not likely to be a clearly defined instant, if anything, it is going to be an extended period of time with fuzzy boundaries. Even if there were a determinate threshold driver, there is no reason in principle to think that we could ever know who it was4. We may well be in the situation of knowing a relatively easy way to prevent the harm (banning leaded gas) without ever being able to know who was doing the harm. Accumulative Harms and the Harm Principle The existence of accumulative harms challenges simple views of liberty. The prevention of harm to others is commonly thought to delimit a person's liberty. The harm principle, we can see, admits of two possible interpretations. On the one hand, we had the more usual interpretation, the individual harm principle: The activity of an individual may be regulated only if it is, by itself, causing harm to others. On the other hand, we had an interpretation suggested by the pollution case, the accumulative harm principle: The activity of an individual may be regulated only if either (1) it is, by itself, causing harm to others or(2) it is part of an accumulative activity which brings about harm to others. Each polluter can admit that pollution is harmful while arguing that his own individual activities are not causing harm5. It might seem that a pollution case would require weighing the interests of polluters in their commercial freedoms against the interests of potential victims in their personal security. But "Not so," claims the polluter, "My little source of pollution by itself causes no harm to others and by the individual harm principle, their interests are of no relevance to my freedom to make a living." (Gal , 2002, , 5-7) The accumulative interpretation of the harm principle would block this argument. The task of this paper will be to see what can be said in defence of the accumulative interpretation. There is no conceptual connection between fault and harm, though there is between fault and harmful conduct5. A harm is something like Feinberg's "setback to interests," not a "setback to interests which has a certain genesis." It is true that, in most familiar cases, harms and faults go together. But this is an empirical matter. In most cases where an individual causes harm, the causal connection between the individual's activity and the harm will be commonly known, and the individual may reasonably be blamed for not foreseeing the causal consequences of the activity. There is, however, a conceptual connection between fault and the activity of harming. For instance, Feinberg thinks that the definition of "A harms B" must include reference to both fault and harm. (Gal , 2002, , 5-7) A must act " with the intention of producing the consequences for B that follow, or similarly adverse ones, or with negligence or recklessness in respect to those consequences," and A's action must be " the cause of a setback to B's interests." For Feinberg, the state may only limit liberty to stop the activity of harming, not to prevent harms. On the other hand, the accumulative harm principle implies that the state may only limit liberty to prevent harmful consequences; it does not matter that the activities which generated the harm were themselves neither faulty nor the cause of the harm. Feinberg's harm principle, accordingly, cannot handle cases where individually harmless acts of polluting bring about harm only when a threshold of accumulation is crossed5. "The harm principle in that case is of no use at all." (Jill , 1997, 11-13) His harm principle cannot tell us whether a legislature is permitted to regulate a polluting activity like copper refining because it is only against the background of a pre-existing scheme of regulation that polluting acts can be seen as harmful. He writes: The accumulative harm principle has a familiar analogue in utilitarian thought. How do you prevent harm to a city lawn, where each would be better off if he or she could walk on it, but all would be worse off if the lawn were destroyed An individual act of walking on the grass will cause no appreciable harm to the lawn6. The grass will recover very quickly after it is crossed. Only after a certain threshold rate of grass crossing is reached, a rate which depends on the season of the year, the amount of rainfall, and so forth, will the lawn be damaged. Each individual actutilitarian may reason that, since his or her walk across the lawn will cause no damage, he or she is free to do so. The result will be no lawn. A society of ruleutilitarians will make out better. Reasoning that obedience to a rule such as, "Keep off the grass," will had overall best consequences, the ruleutilitarian will not walk on the grass even though by doing so he or she would cause no harm. The example of the utilitarian and the lawn can be made to illustrate a very important point about accumulative harms7. Sometimes on city lawns you see "Keep off the grass" signs, sometimes you see no sign at all, and very occasionally you see the sign, "Please walk on the grass." (George , 2002, 3-9)The latter signs are put up by city officials (ones with a sense of humour) in large, little utilized parks where few enough people come that it is a shame if their city habit of keeping off the grass prevents their harmless enjoyment of walking on it. We must study the social circumstances of the case to determine what harm is done and what must be done to alleviate it. Accumulative harms are tied to their historical and social contexts8. What starts out as innocuous (say, the burning of coal to heat a house) becomes collectively harmful (the London fogs of the Victorian era). (Bernard , 1999, 6-13) Regulation becomes, in that context and at that time, permissible by the accumulative harm principle. But that, too, may change; London houses now had other forms of heating, there are few working fireplaces left; coal is expensive, difficult to handle, difficult to get. Perhaps, now, what little coal would get burned will do no harm With hindsight, the proliferation of harm arguments could had been predicted. The notion of harm, standing alone, was not the only critical principle at play in Mill, Hart, or Feinberg. Yet the original, simple statement of the harm principle attempted to bracket out normative values other than harm9. By paring the harm principle back to its original formulation, progressive theorists actually undermined its critical potential. References Kernohan, Andrew, 1993. Accumulative Harms and the Interpretation of the Harm Principle , Social Theory & Practice, Vol. 19, Issue 1, 2-5. Harcourt, Bernard E., 1999. THE COLLAPSE OF THE HARM PRINCIPLE. Journal of Criminal Law & Criminology, Vol. 90, Issue 1 , 10-14 Gal Gerson, 2002. From the State of Nature to Evolution in John Stuart Mill. The Australian Journal of Politics and History, Vol. 48, 5-7. Jill Gordon, 1997. John Stuart Mill and the "Marketplace of Ideas."; Social Theory and Practice, Vol. 23, 11-13. George W. Carey, 2002. The Authoritarian Secularism of John Stuart Mill, Humanitas, Vol. 15, 3-9. Bernard E. Harcourt, 1999. The Collapse of the Harm Principle; Journal of Criminal Law and Criminology, Vol. 90, 6-13. Bibliography John Stuart Mill, On Liberty , chap.1, 4 & 5 John Cristmas (ed.), The Inner Citadel : Essays on Individual Autonomy. John Dunn, ' Liberty as a Substantive Value ' in his Interpreting Political Responsibility. Ronald Dworkin, Taking Rights Seriously, chap. 10 & 11 Gernald Dorkin , 'Paternalism', in Sartorius (ed.) Paternalism John Gray, Mill On Liberty : a Defeence , chap . 1m 12, 14 & 15 David Richards, 'Right of Autonomy ' in Ethics , 1981 Alan Ryan , Mill, chap .5 Aalan Ryan , The Pjilosophy of John Stuart Mill, chaps 11-13 Read More