The harm principle was articulated by British philosopher John Stuart Mill. On Liberty, mill argues that the only purpose for which control can be lawfully imposed over any follower of an enlightened society against his/her will is to avoid harm to others. Mill differentiates harm and simple offense. According to Mill, not every undesirable outcome for others constitutes harm. However, offences are moderately minor and fleeting. For an action to constitute harm, it must cause a major setback to the interest of specific people. Additionally, they must have a right to these interests. He rejects the regulation of flimsy offenses, but in the harm principle, he justifies regulation of liberty if an action cause harm to others.
First, Mill argues that the individual is not responsible to society for his/her actions so long as these actions do not concern anyone's interest but himself. Society can only offer advice, persuasion, instruction or avoidance to express displeasure of an individual's conduct. However, mill points out that liberty or the actions of an individual is punishable if it is prejudicial to the interests of others. Such a person can be subjected to the legal or social punishment of the society deems that the interests require protection.
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Harm or the likelihood of harm is the only ground under which mill supports interference from the society. If an individual, in pursuit of a legitimate objective, cause injury or loss to others or interferes with a good that others had a reasonable right to receive, interference from society is justifiable. Individual gain at the loss of another is acceptable if one succeeds in a competition or an overcrowded profession. Society is only justified to interfere if the means to success is contrary to the general interests through means such a fraud, force or treachery. Furthermore, mill argues that the principle of free trade and individual liberty are similar in that restricting them is evil. However, he explains that government restriction is justifiable if they do not produce the desired outcomes.
To illustrate the harm principle and the need for regulating individual liberty, he uses the example of crime. According to Mill, the government has the responsibility of preventing crime or accident before they happen even if it entails the invasion of liberty (Mill, 1869). If a public or private entity sees a person preparing to vomit a crime, they do not remain inactive until the crime has been committed but interfere to prevent the crime.
Mill uses the examples of drunkenness and idleness to show that if an action is injurious to agents only it is not subject to restriction, but can be restricted if the action is injurious to others. If drunkenness makes a person violent to others, such a person can be placed under legal restriction. Violence against others is harm to others, and interference from the society is justifiable. Similarly, idleness is not subject to interference unless it constitutes a breach of contract or failure to perform legal responsibilities to others such as taking care of children.
Mill argued for interference when individual action cause harm to others. The principle of legal paternalism justifies interference to safeguard individuals from self-inflicted harm. In other words, the principle justifies guiding individuals way from harm towards their good whether they like or not. It can be concluded that Mill did not believe that an individual's good has enough warrant for interference from the society or the state. According to Mill, any interference when harm to others is not the outcome is evil (Mill, 1869)
However, legal paternalism justifies interference from the state of the public because in some instances a person may agree to limit his/her liberty even if the outcomes do not affect others. Humans have cognitive and emotional deficiencies, and in some cases have the propensity to act irrationally. Therefore, legal paternalism is justifiable. The justification for legal paternalism is offered using the various example such as laws requiring motorists to wear seat belts. An individual may understand the dangers of not wearing a seatbelt, but may decide against wearing one due to the inconvenience of having to wear one every time he enters a car (Dworkin, 1971). By placing a high value on inconvenience, such a person is endangering himself, which warrants laws that compel him to wear a seatbelt.
Persons may act irrationally under tow circumstances. Forts, he may act irrationally by attaching false weights to his/her values. Secondly, he may act irrationally by neglecting to act according to his actual desires and preferences. There is a justification for legal paternalism due to personal evaluative delusions that cause them to act against their actual desires and preferences. Supports for legal paternalism is also offered in situations where an action leads to irreversible results. Some actions may lead to results that make it impossible to return to the initial state or continue to make reasoned choices, laws against drug taking justify restrictions because it can damage one's physical or psychological health.
Both the harm principle and legal paternalism justify laws. Mill's harm principle provides a strong basis for laws because people should not be free to commit crimes such as murder. Doing so is equivalent to giving freedom for the sake of freedom. By failure to impose certain restrictions on personal liberty would plunge humanity into chaos and ultimately destruction. In their pursuit freedom, one should not infringe on the liberties of others, and if that happens interference is justifiable. However, the application of the harm principle is not easy due to the difficulty of defining "harm." It is possible to argue that there are two forms of harm. The first form of harm would be private harm, which constitutes harm against others such as mugging, assault or rape. The second type of harm would be public harm, which constitutes actions that harm the interests of others such as vandalism of public property and fly tipping. Furthermore, "harm" can be broadened to include taking risky undue risks such as speeding of keeping a pit-bull dog because it possesses a danger to other than the perpetrator.
The other central argument by Mill is that restricting liberty for a person's good is evil and is not justifiable. According to the harm principle, individual actions that do not harm others should not be restricted by any entity. If a person decides to be an alcoholic, the society is not obliged to intervene regardless of the damage because they would be infringing on personal liberty (Mill, 1869). It can be concluded that the harm principle supports the idea of "self-harm" because it does not hurt other people. Mill's argument in the harm principle is centered on the notion that individuals can act without harming others.
However, that is not true. For example, a person is entitled to enjoy drug use because it is their right and cannot harm people's liberty. However, the use of addictive drugs is not only harmful to the user, but also to others indirectly. Others such as a younger sibling or a friend may follow the example of a drug user; therefore, their choice to use a drug may harm other indirectly. Additionally, the use of addictive drugs affects a person's health, which exerts pressure on the health system and social services. Another example is the consumption of violent pornography. According to the harm principle, it is a personal choice that is not harmful to others. However, violent pornography increases the likelihood of such attacks, which means it affects the freedoms of others, albeit indirectly.
The weaknesses in Mill's harm principle contributed to the principle of legal paternalism. As noted, mil argued that if individual action cause harm to himself alone, it does not warrant interference, the principle of legal paternalism deviates from Mills argument because it supports state interference to prevent self-inflicted harm. Legal paternalism has formed the basis for laws such as those requiring motorists to wear seat belts or cyclist to wear helmets. It is also the basis for laws requiring people to take mandatory health insurance. It can be argued that these laws infringe on liberty because people are capable of making rational choices that enhance their self-interests. However, it is not the case in all situations. It has been shown that even rational people can make irrational decisions such a failure to wearing a seatbelt because of the inconvenience of wearing it. Furthermore, individual decisions can have far-reaching and irreversible outcomes in the future, which warrants interference from others (Dworkin, 1971).
In conclusion, the harm principle safeguards individual liberty from infringement by the society of the state. However, it is clear that no one can exist in isolation since the individual action can have indirect consequences on others. Limitations of the harm principle should be imposed, but mil failed to do so. There should be criteria for limiting freedom that is based on harm, but mill failed to provide one. It is the presence of contraction is the harm principle that gives rise to legal paternalism, which protects individual from self-inflicted harm. It is apparent that individuals are capable of making irrational choices; therefore, legal paternalism is justifiable.
References
Dworkin, G. (1971). Challenges to Self-Determination: Legal Paternalism and Legal Omission. Belmont: Wadsworth Publishing Company.
Mill, J.S. (1869). On Liberty . London. Longman, Roberts, & Green Co.
