The Harm Principle by John Stuart Mill
John Stuart Mill’s Harm principle remains one of the most serious cornerstones in the history and philosophy of criminal law. Whenever the Harm principle is mentioned or applied, researchers and scholars display serious disagreement regarding the consequences and legal implications of the Harm principle in liberal societies. Nevertheless, democracies view Mill’s Harm principle as the essential component of individual autonomy, and thus as the foundation for the stability and objectivity of all criminal, legal, and democratic initiatives. Moreover, not equity of individual freedoms, but limiting the freedoms and powers of specific individuals shapes the vision of absolute autonomy in liberal societies.
In his work “On Liberty” John Stuart Mill wrote:
“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. His own good, either physical or moral, is not a sufficient warrant. He cannot rightfully be compelled to do or forebear… because in the opinion of others to do so would be wise or even right” (Wlison 19).
These words have come to represent one of the essential principles of contemporary criminal law – the Harm principle; moreover, the Harm principle has come to represent the distinctive feature of modern liberal states, where individual autonomy and the right for self-freedom is positioned over other individual and group values.
For liberal states, as well as for the criminal law, Mill’s Harm principle has the two far-reaching philosophic implications. First, a liberal state has the right to criminalize the conduct which causes harm and limits other citizens’ freedoms. Second, the state’s interference should be kept to a minimum, with the state as the primary guarantor of individual autonomy. On the one hand, avoiding excessive interference is the necessary prerequisite of liberalism in general, and quality liberal relationships between individuals and the state, in particular. On the other hand, based on the Harm principle, states find it impossible to minimize the incidence and fight the crimes which do not cause direct harm. Wilson is correct: “there is a scope of criminal activities, as a last resort, which provoke serious offence, for example, although the conduct does not involve a substantial set-back to interests” (34). Moreover, with the need to criminalize activities which cause direct harm and limit one’s freedoms Mill’s principle risks distorting the benefits of the state’s limited interference. Nevertheless, liberal states adhere and actively defend Mill’s Harm principle on the premise that individual freedom from coercion is the key element of sustainable democracy and predetermines the success of all anti-criminal initiatives.
Certainly, criminalization is one of the most serious issues in the harm principle domain; the way the Harm principle justifies criminalization of individual or group conduct is one of the major problems, which democratic commitment to individual autonomy conceals from the public eye. The fact is that in case of indirect (or remote) harms, the Harm principle cannot readily determine the boundaries of state coercion or the extent, to which each particular act can be criminalized. The acts similar to “sexual immorality, say adultery, conduces to harmful consequences and the likelihood of such consequences occurring are relatively high” (Wilson 22). Moreover, instead of grading offences democratic states create and follow a system of examples, which makes it difficult to measure the gravity of new crimes.
Nevertheless, the Harm principle should not always be viewed through the prism of criminalization risks, which democratic societies are not always able to avoid. For liberal regimes, the Harm principle does not lead to criminalization but makes the law honest. True, not the Harm principle but granting individuals with equal right for freedom undermines the effectiveness of all anti-criminal interventions. It would be correct to say that “the only grounds for interfering with one person’s ability to set and pursue his or her own purposes is the need to protect the freedom of others” (Feinberg 11). The principles of freedom and equity become particularly relevant when it comes to judging and evaluating remote harms, which pose one of the most serious problems in liberal societies; here, limiting one’s freedom for causing indirect or remote crime is impossible without state coercion. In simpler words, whether individuals pursue the ends which fit to societal and criminal law expectations can only be decided by state. Finally, against traditional beliefs, the Harm principle and individual sovereignty are closely intertwined, and whether states possess sufficient powers to defend the freedoms and rights of their citizens depends on the states’ ability to limit freedoms and rights of separate citizens for the sake of creating an atmosphere of absolute autonomy and complete liberalism.
The Harm principle remains one of the philosophical cornerstones in the present day criminal law. The prevailing majority of contemporary democracies view the Harm principle as the foundation for sustainable liberalism and individual autonomy. The problem is however, in that state coercion and the absence of strict boundaries of harm may readily turn into the source of excessive criminalization; but although democratic states fail to avoid the criticism regarding the risks of criminalization and the negative implications of the Harm principle, not equity of freedoms, but the state’s right to regulate these freedoms determines, whether individuals are granted sufficient rights and opportunities to pursue their ends.
Feinberg, J. Freedom and Fulfillment: Philosophical Essays. Princeton University Press,
Wilson, W. Criminal Law: Doctrine and Theory. Pearson Education, 2008.