John Stuart Mills On Liberty

John Stuart Mill's On Liberty is one of the foundational defenses of liberal, democratic government. According to Mill, there are certain core principles "that should regulate how governments and societies, whether democratic or not, can restrict individual liberties."[footnoteRef:1] Mill wrote that regardless of whether a monarch, dictator, or even a democratic majority governed, the only reason to deprive others of their liberties was what he called the harm principle, namely, that "a harm, an action must be injurious or set back important interests of particular people, interests in which they have rights" and "justifies restricting liberty to prevent harm to others."[footnoteRef:2] In defining the harm principle, Mill's intentions were clearly noble in that he wished to prevent the illegitimate use of power by the state to restrict free speech, sexual behavior, or other personal, private choices. However, since Mill wrote, even a number of sympathetic philosophers have found the harm principle to be problematic because of its failure to consider social consequences of apparently self-injurious activities. [1: David Brink, "Mill's Moral and Political Philosophy," The Stanford Encyclopedia of Philosophy, 2016, https://plato.stanford.edu/archives/win2016/entries/mill-moral-political/>.] [2: Ibid.]

First and foremost, to critique the harm principle, it is essential to understand what constitutes harm in Mill's estimation. A harm is something far more serious than what Mill categorizes as a "mere offense;" rather while "offenses tend to be comparatively minor and ephemeral," a harm is "an action [that] must be injurious or set back important interests of particular people, interests in which they have rights." [footnoteRef:3] A distinction between harm and offense is critical, given that many personal decisions may give offense to someone but not do them any harm. For example, it might offend me that my neighbor engages in sexual activity outside of marriage, but this does me no real harm. Mill notes that it might give him offense that certain individuals prefer certain types of literature and music over others but the fact that some people do not is not an actual harm to himself. [3: Ibid.]

The harm principle does not only refer to actions which take place after the fact. "In many cases all we could reasonably know is that a given action risks harm."[footnoteRef:4] Thus, an individual driving while intoxicated would still be violating the harm principle even if he or she did not injure another individual because this is still known, risky behavior towards other drivers. Similarly, a decision by a company to disregard basic safety principles in producing toys for children would also be regarded as a violation of the harm principle given that this could feasibly result in deaths, even if no actual deaths are reported. The state has a legitimate interest in outlawing such activities on the basis of their potential risk. [4: Ibid.]

On the other hand, Mill always wishes to err on the side of not regulating; in a stance commensurate with his utilitarian principles articulated elsewhere, Mill is intent upon doing the greatest good for the greatest possible number of people. Regulation even when harm ensues is valid only when there is "a reason that might be outweighed by countervailing reasons not to regulate. If the regulation is more harmful than the behavior in question, it may be best not to regulate, despite the pro tanto case for regulation"[footnoteRef:5] It is here the challenges ensue of weighing the different rights of one individual versus another or against society as a whole arise. For example, mandating that health insurance be provided for all employees by employers who possess businesses of a certain size (say over fifty people) is designed to prevent the harm of leaving persons uninsured. But mandating coverage may cause harms to a business owner because of the expense and to the public when additional costs are passed on to consumers. The question of whether the regulation is more harmful than the benefit accrued by the regulation is less obvious. In some instances, such as legalizing gay marriage, any potential harms (supposed infractions of individual's religious beliefs) may seem obviously outweighed by the benefits of according full liberties to gay and lesbian people. But with other decisions, the cost-benefit analysis of the harms of regulation versus not regulating are not so obvious. [5: Ibid.]

Of course, Mill himself was cognizant of this fact, as an inhabitant of a capitalist society. Capitalism by its very nature has a divide between the haves and the have nots. Mill supports this, given his view that "there are some actions which harm others, but which should nevertheless be allowed."[footnoteRef:6] Economic competition is not the same as fraud because "allowing economic competition, Mill thought, contributes more to the general welfare of society than preventing it."[footnoteRef:7] Commensurate with his utilitarian principles, Mill did not view liberty and the harm principle as an expression of individual rights as much as he saw it as furthering the good of society. [6: Michael Lacewing, "Mill's harm principle," Routledge, 2-3. http://documents.routledge-interactive.s3.amazonaws.com/9781138793934/A2/Mill/MillHarm.pdf] [7: Ibid.]

Mill himself, even when he wrote On Liberty, was cognizant of objections to his harm principle. One example he notes is that of the prohibition to the consumption of pork in Muslim countries. According to the harm principle, Mill asserts that this merely restricts liberty and forces individuals to conform to religious dictates. "It is, in the first place, an offence against their religion . . . that peculiar character, resembling an instinctive antipathy, which [is] the idea of uncleanness . . . "[footnoteRef:8] For Mill, the prohibition of pork is solely rooted in religious prejudice and thus cannot be defensible. The result is merely the restriction of liberty and harm is done to others and there is no rational benefit accrued to the majority. It is analogous to the Puritans banning the practice of the theater. "Wherever the Puritans have been sufficiently powerful . . . they have endeavored, with considerable success, to put down all public, and nearly all private, amusements."[footnoteRef:9] [8: John Stuart Mill, On Liberty, Project Gutenberg, https://www.gutenberg.org/files/34901/34901-h/34901-h.htm 161] [9: Ibid., 164]

Mill notes that the same is true with prohibition of alcohol -- although there may be some benefits in doing so, the restrictions upon liberty are extensive enough and the obvious benefits are not so obvious as to justify such limitations. "But the infringement complained of is not on the liberty of the seller, but on that of the buyer and consumer; since the State might just as well forbid him to drink wine, as purposely make it impossible for him to obtain it."[footnoteRef:10] The prohibition of alcohol is done in the name of limiting social disorder but there is also harm done to the liberty of those who wish to drink. Individuals can make such a choice for themselves without restricting the liberty of others, just like people can choose to read or not read certain improving and worthy books. Mill regards this more as a question of taste. Similarly, the mandatory keeping of the Sabbath (otherwise known as blue laws) have the negative effect of limiting the freedom and mobility of non-believers with no apparent benefit. [10: Ibid, 169]

Mill believes people should have the liberty to engage in harmful actions to themselves; once again, so long it does not hurt others. He uses Mormonism, which he considers analogous to polygamy as an example of this (actual practitioners of Mormonism might disagree with Mill's interpretation, but for the purposes of his example, it is a useful one): "Still, it must be remembered that this relation is as much voluntary on the part of the women concerned in it, and who may be deemed the sufferers by it, as is the case with any other form of the marriage institution . . . it has its explanation in the common ideas and customs of the world . . . many a woman should prefer being one of several wives, to not being a wife at all."[footnoteRef:11] [11: Mill, 174]

In other words, Mill notes that although this choice may seem inexplicable to non-Mormons, it is the right of the women to make this decision, if they believe that it is better to be married to a man, any man, than not married at all. In this example the problem with Mill's assertion of the principle of self-harm becomes even more problematic. Mill's view of marriage is that women are often unfairly limited, regardless of whether the relationship is polygamous or monogamous. He acknowledges that women make this choice based upon customs and social pressures, not necessarily their own volition. But to his view, the women are still making a choice.

Yet people may make many apparently willing choices that are harmful to themselves and permitting them to make such choices does not necessarily further either their safety or benefit society as a whole. In Mill's enthusiasm to create a state which is not paternalistic, he does not acknowledge the extent to which previous social conditions may exert pressures upon certain groups. According to Mill's argument, a woman who chooses to remain with an abusive husband is making a choice which harms only herself and thus is permissible. But a woman may do so because of her fear that she will not be economically solvent without her husband and various cultural pressures which dictate that a woman cannot be seen as a worthy human being without a man. Following Mill's logic, a woman who refuses to offer evidence against her husband in a complaint of domestic violence is making a choice, albeit one that harms her, yet in reality, her actual ability to make a choice is constrained and the law arguably has an obligation to protect her and also to protect society from supporting an inequitable relationship between husbands and wives.

A similar argument could be made in regards to suicide. A strict observance of Mill's harm principle would suggest that self-harm (either suicidal or suicidal behaviors) is an acceptable but tragic liberty because it only harms the self, not others. Mill only suggests that individuals who are not competent such as children and the insane cannot make choices in regards to their future. But not all persons who are depressed are mentally incompetent and meet the legal definition of insanity. Once again, there must be some notion that the state has a legitimate role in protecting the individual from harming him or herself. Granted, that right should not be unlimited, and there must be some allowance for a person to make mistakes (once again to use Mill's example, making less-than-ideal choices in regards to romance, reading, and other acts of personal volition and leisure). But the harm principle is still extremely limiting upon the state in terms of its ability to engage in basic protections of its citizens.

Taken to its extreme, Mill's harm principle would also prohibit the state taking actions such as taxing unhealthy foods and cigarettes, incentivizing positive behaviors such as buying energy efficient-appliances, or being prohibited from driving highly unsafe cars or otherwise undertaking extremely risking activities with no apparent benefit. While certain risky activities such as, for example, climbing mountains or riding roller coasters, may be permitted because they are seen as acceptable risks with some benefits (exercise, leisure, etcetera), so long as appropriate safety precautions are taken, the notion of the harm principle would negate the state's ability to engage in risk mitigation of any kind to regulate these activities if thrill-seekers did not wish to observe them.[footnoteRef:12] [12: Lancewing, 5]