The Harm Principle

In one line

The harm principle holds that 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, so that a person's own good is never a sufficient warrant.

The proposition

The principle associated with John Stuart Mill's essay on liberty has a familiar form. The sole end for which mankind are warranted in interfering with the liberty of action of any of their number is self protection; power may rightfully be exercised over a member of a civilised community against his will only to prevent harm to others; and his own good, physical or moral, is not a sufficient warrant.

Three exclusions follow from it, and naming them is the whole examinable content.

One. Paternalism is excluded. The state may not criminalise conduct in order to protect the actor from himself.

Two. Moralism is excluded. The state may not criminalise conduct merely because it is thought immoral, where no one else is harmed.

Three. Offence is excluded, or at least is not harm. That other people are shocked, disgusted or affronted is not, on this principle, a harm to them in the relevant sense.

The principle is therefore not a rule about what is wrong. It is a rule about what the state may punish, and a person may accept it and still think the conduct in question deeply wrong.

What counts as harm

The principle is only as clear as the word harm, and this is where its critics attack.

Physical injury and damage to property are clearly within it.

Financial loss is generally accepted.

Risk of harm is usually included, which is what justifies offences of dangerous driving and of possessing weapons.

Harm to institutions and to public goods is contested. Tax evasion harms no identified person; corruption harms the working of government rather than an individual.

Offence is the disputed category, and it is what most of the argument is really about.

And remote or diffuse harm is the widest reading, under which almost any conduct can be said to harm someone. If that reading is accepted, the principle stops excluding anything and becomes useless as a limit.

The objections

An LL.M. answer must give these, because a question that asks for the harm principle is asking whether it works.

One. The word harm is elastic. Every legislature that wants to criminalise something can identify a harm, and once indirect and social harms are admitted, the principle licenses whatever it was meant to constrain.

Two. It presupposes an individual who exists apart from society. The critic's point is that people are constituted by the communities they live in, so conduct that damages a shared moral environment is not simply private.