VICE, CRIME, AND AMERICAN LAW

John Stuart Mill: On Liberty (1859)

"If any one does an act hurtful to others, there is a prima facie case for punishing him,
by law..."

This is Mill's conclusion for what the state may consider a crime. This in itself may sound obvious to us, but as we shall see, the real issue is in what Mill has left out by this statement of crime. Mill provides a robust view of liberty which serves to restrict what can be considered a crime. Mill's view of liberty, commonly referred to as the harm principle , can be seen in his opening statement:

The object of this Essay is to assert one very simple principle, as entitled to govern absolutely
the dealings of society with the individual in the way of compulsion and control, whether the
means used be physical force in the form of legal penalties, or the moral coercion of public
opinion. That principle is, 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.
That the only purpose for which power can be rightfully exercised over any member of a
civilized community, against his will, is to prevent harm to others. His own good, either
physical or moral, is not a sufficient warrant. He cannot rightfully be compelled to do or
forbear because it will be better for him to do so, because it will make him happier, because in
the opinions of others, to do so would be wise, or even right. There are good reasons for
remonstrating with him, or reasoning with him or persuading him, or entreating him, but not
for compelling him, or visiting him with any evil, in case he do otherwise. To justify that, the
conduct from which it is desired to deter him must be calculated to produce evil to some one
else. The only part of the conduct of any one, for which he is amenable to society, is that which
concerns others. In the part which merely concerns himself, his independence is, of right,
absolute. Over himself, over his own body and mind, the individual is sovereign. 

There is a lot going on in Mill's statement of liberty here.

• First , Mill is claiming that paternalism can never be a justification for criminalizing behavior.
  
  
• Second , Mill is giving a nod to Aristotle by holding that we have reasons to persuade people towards virtues and against vices, but he rejects Aristotle's contention that the law can be used to do this for paternalistic reasons.
  
  
• Third , Mill is setting out a requirement that any crime must be shown to cause or threaten harm (evil) to an identifiable person or persons; otherwise, it is no crime.
  
  
• Fourth , Mill is giving a nod to the libertarian principle of self-ownership by holding that we, to some extent, are our own independent sovereigns.

Yet, Mill does not grant this liberty to everyone. Who does Mill exclude from the above?

. . . this doctrine is meant to apply only to human beings in the maturity of their faculties. We
are not speaking of children, or of young persons below the age which the law may fix as to
that of manhood or womanhood. Those who are still in a state to require being taken care of by
others, must be protected against their own actions as well as against external injury.

Three areas of liberty that derive from Mill's harm principle are:

1. " Liberty of thought and feeling; absolute freedom of opinion and sentiment on all subjects. . . The liberty of expressing and publishing opinions may seem to fall under a different principle, since it belongs to that part of the conduct of an individual which concerns other people; but, being almost as much importance as the liberty of thought itself, and resting in great part on the same reasons, is practically inseparable from it."
   
   
2. ". . . liberty of tastes and pursuits; of framing the plan of our life to suit our own character: of doing as we like, subject to such consequences as may follow; without impediment from our fellow-creatures, so long as what we do does not harm them, even though they should think our conduct foolish, perverse, or wrong."
   
   
3. ". . . the liberty within the same limits, of combination among individuals; freedom to unite, for any purpose not involving harm to others: the persons combining being supposed to be of full age, and not forced or deceived."

Of these three liberties Mill says:

No society in which these liberties are not, on the whole, respected, is free, whatever may be its
form of government; and none is completely free in which they do not exist absolute and
unqualified. The only freedom which deserves the name, is that of pursuing our own good in
our own way, so long as we do not attempt to deprive others of theirs or impede their efforts to
obtain it. Each is the proper guardian of his own health, whether bodily, or mental and
spiritual. Mankind are greater gainers by suffering each other to live as seems good to
themselves, than by compelling each to live as seems good to the rest.

Mill allows that any behavior that adversely impacts the interests of others in society can be made a crime if doing so leads to greater utility than not doing so. This admits that some things may harm the interests of others, but that utility is best maximized by allowing moral pressures and individual actions to deter the behavior rather than the force of state criminalization. This will be key as it requires two things in order to justify criminalization of an action. First , the act must harm the interests of non-consenting parties. Second , the harms associated with state criminalization an action do not exceed the harms prevented by the action's criminalization. This two stage requirement for criminalization is held both by utilitarians such as Mill and also libertarians.

How does Mill support this view of liberty?

Mill seems to provide two independent methods of justifying the harm principle. The first, and primary justification, is found in the following statement:

The only freedom which deserves the name, is that of pursuing our own good in our own way,
so long as we do not attempt to deprive others of theirs, or impede their efforts to obtain it.
Each is the proper guardian of his own health, whether bodily, or mental and spiritual.
Mankind are greater gainers by suffering each other to live as seems good to themselves, than
by compelling each to live as seems good to the rest. . . .

In other words, Mill supports the harm principle because by upholding this view of liberty we will achieve the utilitarian goal of promoting the greater happiness for everyone. A secondary support for the harm principle is found in Mill's nod to the libertarian notion of self-ownership. This secondary support, though not as prominent in Mill, may not sound controversial but the consequences of such a premise can be quite so. If I own me, then in terms of liberty I can do what I determine is right. The only limitation to this is that I cannot harm others. Self-ownership clearly limits paternalism because if I own me, then what right do you have to interfere with what is not yours (and is not harming you)? If you qualify for self-ownership, not only can we not interfere with actions that are not harming others, but you are also then responsible for your own health, actions, and well being. The individual is free to pursue a life of vice so long as it does not harm others. To recap, the two supports for the harm principle are:

1. A utilitarian argument that the harm principle is the most practical way to achieve happiness because it prevents harm to others and enables each person to seek their own happiness. 
   
   
2. Even if we reject the utilitarian argument, there is the principle of self-ownership in which rational adults are in charge of their own lives and therefore are free to act as they choose so long as they do not harm others.

Utilitarians can accept the first reason. Libertarians, and others, can accept the second However, unlike libertarians, Mill's view of liberty is not a right because liberty is not an end in itself:

. . . I forgo any advantage which could be derived to my argument from the idea of abstract
right, as a thing independent of utility. I regard utility as the ultimate appeal on all ethical
questions; but it must be utility in the largest sense, grounded on the permanent interests of
man as a progressive being. . .

This is where Mill departs from libertarians as they hold that liberty is a right or end in itself whereas Mill holds liberty is a means to happiness. 

As mentioned above Mill's harm principle thus rules out paternalistic laws (which often focus on what are called "victimless crimes") because paternalism is not preventing harm to others but is preventing harm to self (which Mill thinks is none of society's business). Mill does think that we can always try to persuade someone to act differently, but that is the limit of what we can do for their own good. Where Aristotle thought the role of government was to promote the good or virtue in citizens, Mill takes a far different approach. Mill views the role of the state as to protect the liberty of citizens and to protect citizens from being harmed against their will. By doing these two things, the state will enable each person to pursue their happiness without preventing others from pursuing theirs.

 

Who can best determine happiness, the individual or the state/society? How we answer this question may depend upon how it is phrased. For instance, if I ask you, "Who can best determine your happiness, you or the United States government?" I'm fairly certain that you would say you are the best determiner of your happiness.

However, in fairness to Aristotle, we ought to phrase the question in such a way as to de-personalize it. After all, the fact that you are in college indicates that you are more rational, intelligent, and responsible than the average person (a scary thought indeed). Consider the whole of society including all those who are less responsible and intelligent than yourselves. Think of all the people who consistently make bad decisions for themselves financially, personally, or otherwise and ask: "Is the average person a better determiner of their own good than the collected wisdom and experience of society?"

Now that we have established the basics of Mill's view of liberty, we can explore a distinction commonly made by other philosophers as an easy way of understanding the harm principle.

 

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