J. S. Mill on Liberty: The Harm Principle

"Self-protection" and "harm to others." The only admissible ground.

"His own good is not a sufficient warrant." This is the exclusion of paternalism, and it is the most contested part of the principle.

"Remonstrating, reasoning, persuading, entreating." Mill is not saying you must be silent about somebody's conduct. You may argue with them, avoid them, warn others. What you may not do is compel.

"Over himself, over his own body and mind, the individual is sovereign." The sentence that makes it a principle of liberty rather than a rule about the scope of legislation.

The self-regarding and other-regarding distinction

Self-regarding conduct affects only the person acting, or affects others only with their free and informed consent. Here society has no jurisdiction at all.

Other-regarding conduct affects others without their consent. Here society may consider whether to interfere, and the harm principle then applies.

The obvious objection, and it must be stated. No conduct is purely self-regarding. A person who ruins their health burdens their family, their employer and the public hospital.

Mill's answers. First, remote and indirect effects are not harm in the relevant sense; if they counted, nothing would be left of the principle. Second, where a person fails in a distinct and assignable obligation to another, they may be dealt with for that breach, and not for the self-regarding conduct that led to it: a person who neglects their children is punished for the neglect and not for the drinking.

The three exceptions Mill states

The principle applies, Mill says, only to human beings in the maturity of their faculties, and he is explicit about three limits.

Children and young persons below the age the law fixes must be protected against their own actions as well as against external injury.

Those in a state requiring care by others.

And a third, which an Indian answer should confront rather than omit. Mill excludes what he calls backward states of society in which the race itself may be considered as in its nonage. This is a claim about civilisation and it was written by a man who spent his working life in the East India Company's administration. It should be stated, and it should be criticised: the exception has no support in the argument that produces the principle, and it was used to justify precisely the rule without consent that the essay's own reasoning condemns.

The three departments of liberty

Mill sets out what the principle protects.

Liberty of thought and feeling, including absolute freedom of opinion and sentiment on all subjects, and the freedom of expressing and publishing opinions, which he treats as practically inseparable from it.

Liberty of tastes and pursuits, of framing the plan of our life to suit our own character, and of doing as we like subject to such consequences as may follow, without impediment from others so long as we do not harm them.

Liberty of combination, the freedom of individuals to unite for any purpose not involving harm to others.

The argument for free discussion

Mill's defence of free speech is the most quoted part of the book and is a separate argument from the harm principle. Silencing an opinion is wrong, he argues, whatever the opinion is.

If the opinion is right, those who silence it are deprived of the opportunity of exchanging error for truth.

If it is wrong, they lose the clearer perception and livelier impression of truth produced by its collision with error.

If it is partly right, which is the commonest case, the prevailing opinion contains only part of the truth and the suppressed one supplies the remainder.

And even a wholly true opinion, if not contested, is held as a dead dogma rather than a living truth, so that those who hold it do not know why.

The criticisms

Harm cannot be defined. Everything from physical injury to offence to economic loss has been called harm, and the principle is only as determinate as the word. Mill's own restriction to direct harm and to assignable obligations narrows it and does not settle it.

Offence is not harm, and yet societies protect against it. Almost every legal system restricts obscenity, blasphemy and insult, which the principle as stated does not permit.

Paternalism is sometimes right. Compulsory seat belts and helmets, restrictions on dangerous drugs, and rules against selling oneself into slavery are widely accepted, and Mill himself refused to allow a person to sell themselves into slavery, on the ground that the principle of freedom cannot require that a person be free not to be free.

Consent is not always real. The self-regarding category assumes free and informed consent, and consent given by a person with no alternatives is exactly the modern liberal problem of chapter 580.

It presupposes a developed individual. Mill assumes a person capable of forming a plan of life, which is a capacity produced by education and security, and his own civilisational exception shows how badly the assumption can be used.

A worked example

A city considers three measures.

One, requiring helmets for motorcyclists. Purely paternalistic on its face: the person harmed by not wearing one is the rider. On Mill's principle this is not permitted, and this is the case that shows how demanding the principle is. Two answers are available inside it: the harm to dependants and to the public health system is a distinct assignable obligation, which is a stretch; and Mill's own limit on selling oneself into slavery suggests a category of decisions so destructive of future choice that they may be restricted, which is a better fit for a fatal head injury.

Two, prohibiting loud amplified music after eleven at night. Straightforwardly permitted. The noise reaches people who have not consented, so it is other-regarding, and the only question is proportion.

Three, prohibiting a play that many people find blasphemous. Not permitted. Offence at what others say or perform is precisely what Mill's argument for free discussion is directed against, and the fact that the offence is deeply felt does not convert it into harm. The remedy available on Mill's principle is not to attend, and to argue against it.

The three together show the principle's shape: it is permissive about the first and third and is entirely comfortable with the second, and the disagreements about it in modern law are almost all about the first and third.

Distinctions that carry marks

What Mill is NOT saying

He is not saying society may say nothing. Remonstrating, reasoning, persuading, entreating and avoiding a person are all permitted; compulsion is not.

He is not confining the principle to the state. The moral coercion of public opinion is expressly within it, and Mill regarded it as the greater danger.

He is not defending harm. The principle protects conduct that harms nobody but the actor, which is a different thing.

He does not treat liberty as an end in itself. He was a utilitarian, and his argument is that liberty produces the best consequences in the long run, for individuals capable of development. That is why chapter 650 belongs with this one.

Quick revision

1. One very simple principle: the sole end for which mankind are warranted in interfering with the liberty of any of their number is self-protection, and the only purpose for which power may rightfully be exercised over a member of a civilised community against his will is to prevent harm to others.
2. His own good is not a sufficient warrant. The permitted responses are remonstrating, reasoning, persuading, entreating, not compelling.
3. Over himself, over his own body and mind, the individual is sovereign.
4. The principle limits society as well as the state, expressly including the moral coercion of public opinion.
5. Self-regarding conduct is outside society's jurisdiction; other-regarding conduct may be interfered with. The objection that nothing is purely self-regarding is met by excluding remote effects and by punishing breach of a distinct and assignable obligation.
6. Three exceptions: children, those requiring care, and, notoriously, backward states of society, which an Indian answer should state and criticise.
7. Three departments: thought and feeling with expression; tastes and pursuits; combination.
8. Free discussion: a silenced opinion may be true, may be partly true, and even a true opinion uncontested becomes a dead dogma.
9. Criticisms: harm is undefined; offence is excluded though every system restricts it; some paternalism is accepted, and Mill himself refused to permit selling oneself into slavery; consent is not always real; and the principle presupposes a developed individual.

Test yourself

1. State Mill's principle in his own terms. That the sole end for which mankind are warranted, individually or collectively, in interfering with the liberty of action of any of their number is self-protection, and that the only purpose for which power can rightfully be exercised over any member of a civilised community against his will is to prevent harm to others. A person's own good, physical or moral, is not a sufficient warrant; he cannot rightfully be compelled because it would be better or wiser for him. Those are reasons for remonstrating, reasoning, persuading or entreating, not for compelling. Over himself, over his own body and mind, the individual is sovereign.

2. Why does the principle limit society and not only the state? Because Mill applies it to the dealings of society with the individual by way of compulsion and control, whether the means used is physical force in the form of legal penalties or the moral coercion of public opinion. He regarded the second as the greater danger in his own time, since a law can be challenged in a court while social pressure operates continuously, cannot be appealed against, and penetrates the details of life in a way legislation cannot.

3. Explain the self-regarding and other-regarding distinction and the objection to it. Self-regarding conduct affects only the actor, or affects others only with their free consent, and society has no jurisdiction over it. Other-regarding conduct affects others without their consent, and society may then consider interference subject to the harm test. The objection is that no conduct is purely self-regarding, since a person who ruins their health burdens family, employer and public services. Mill answers that remote and indirect effects are not harm in the relevant sense, since counting them would destroy the principle, and that where a person breaches a distinct and assignable obligation they are dealt with for that breach rather than for the self-regarding conduct behind it.

4. Set out Mill's argument for free discussion. That a silenced opinion may be true, in which case those who silence it are deprived of the chance to exchange error for truth. That if it is false, its suppression costs the clearer perception and livelier impression of truth produced by collision with error. That most commonly it is partly true, the prevailing opinion holding only part of the truth and the suppressed one supplying the rest. And that even a wholly true opinion, if never contested, comes to be held as a dead dogma rather than a living truth, so that those who hold it no longer know why.

5. How should an Indian student treat Mill's exception for "backward states of society"? By stating it accurately and criticising it. Mill confines the principle to human beings in the maturity of their faculties and excludes children, those requiring care, and societies he regarded as in their nonage. That third exception has no support in the argument that produces the principle, which turns on the individual's sovereignty over their own body and mind, and it was written by a man employed in the East India Company's administration. It was used to justify precisely the government without consent that the essay's own reasoning condemns, and an answer that omits it treats the text less carefully than it should.