The law is reluctant to criminalize an act unless it can be framed in terms of the harm the act causes to others. Although this principle is often credited to John Stuart Mill, he does not deserve the credit. Versions can be found in Aristotle in the fourth century B.C., and in Thomas Aquinas in the high middle ages.
The difficulty is that many different versions of harm principle compete in the public square, and each gives a different answer to questions such as what sort of act is really harmful and how harmful it is. Mill was the author, not of the generic harm principle, but of an influential, dangerous, and highly misleading brand of harm principle.
How did he promote his brand? Mainly by pretending that it was the only one on the shelf. Consider his arguments against Lord Stanley, who wanted to prohibit the sale of strong liquors. Just for the record, I disagree with Lord Stanley concerning the prohibition of alcohol. However, I think arguments like Stanley’s should be answered, not merely ruled out of order, as Mill tries to do.
For the truth is that both men couched their arguments in terms of harm. As Mill's own quotations make clear, Stanley held that the sale of strong liquors harmed him as a representative citizen in four ways: (a) by endangering his security, (b) by creating a misery that he was taxed to support, (c) by tempting him to conduct which would threaten his moral and intellectual development, and (d) by weakening and demoralizing society, from which he had a right to claim mutual aid and intercourse. Now there are many legitimate ways to argue against Stanley. For example, one might argue that in this particular case, prohibition would cause greater harms than it prevented. Yet Mill pretends that Stanley was not speaking of harms at all – that he merely demanded the right “that every other individual act in every respect exactly as he ought.”
How could Mill get away with such preposterous misrepresentation? By definitional sleight of hand. Mill thinks there is a large, easily identifiable class of acts which have no effects on other people at all. The way he arrives at this conclusion is simply to redefine most harms – including those which Stanley mentions -- as non-harms. For in most cases (he is a bit inconsistent), Mill assumes:
- That the harm of undermining mores essential to human flourishing is not a harm;
- That the harm of seduction to evil is not a harm;
- That harm to which a person consents is not a harm (he does make a large exception for voluntary slavery);
- That the harm of giving offense is not a harm;
- That the harm of destroying one’s abilities to fulfill his obligations to others is not a harm; and
- That the risk of harm, distributed in such a way that we do not know who will be hurt, is not a harm.
Although all of these harms are real, Mill persistently resorts to the fiction that he is mapping out "that portion of a person's life which affects only himself."
By the way, he also ignored the troublesome fact that harms cannot be weighed in a vacuum. Just how much harm a particular line of conduct is likely to bring about depends on the context in which it takes place. For instance, how much harm might be caused to others by my riding a motorcycle without a helmet? That depends on such things as whether I have a family that counts on me for love, counsel, and financial support, what other duties I may have that my death would prevent me from fulfilling, whether I pool my risks with others through private or social insurance, and whether those who see me injured are ethically bound to render aid.
Mill’s latter-day followers go much further than he did. As we have seen he opposed only the criminalization of so-called self-regarding acts. Our would-be Millians oppose “judging” or discouraging them in any way. On this point, surprisingly, he was on the side of moral conservatives. Not only did he admit that some of the acts he called self-regarding may be morally wrong, but he thought that morally wrong self-regarding acts may and even should be discouraged, and in all sorts of ways.
For example, he thought that we should be far more willing to argue with those who commit them than common notions of courtesy permit; that we may avoid the society of such persons; that we may warn others against them; that we may give them last place in the distribution of those benefits to which nobody is entitled as a matter of right; and that we may warn them ahead of time that this will be one of the consequences of our disapproval. Today’s Millians tend to forget all of this.
But that is what happens when one reasons recklessly. Careless arguments do not attract followers through what is careful in them, but through what isn’t. Is it surprising, then, that each new wave of followers is more reckless than the one before?