Part 2: Self-Regarding vs. Other-Regarding Actions
. . . there is a sphere of action in which society, as distinguished from the individual, has, if any, only an indirect interest; comprehending all that portion of a person's life and conduct which affects only himself, or, if it also affects others, only with their free voluntary and undeceived consent and participation. When I say only himself, I mean directly, and in the first instance: for whatever affects himself, may affect others through himself; and the objection which may be grounded on this contingency, will receive consideration in the sequel.
One other issue Mill incorporates into his harm principle is what to do about harms between consenting adults. Mill concludes that if rational adults consent to harm one another, this is not considered a harm to others. A harm to others would then mean a harm to some unconsenting party. For instance, if you, a rational adult, consent to box Mike Tyson, society has no right to interfere; and when Mike Tyson knocks you out, it does not constitute a harm to others (because you consented to it) and therefore society has no right to intervene.
Partly due to this incorporation of consent into the harm principle, philosophers since Mill have used the following distinction to help explain when society can justifiably interfere in our liberty and when it cannot. The distinction is between self-regarding and other-regarding actions.
Self-regarding actions are actions that only harm yourself or, if it also harms others (rational adults), it does so with their free, voluntary, and undeceived consent and participation.
Other-regarding actions are those that harm others who are not rational, free, undeceived, consenting adults.
Mill claims that we cannot interfere with self-regarding actions under any circumstances. Society can interfere with other-regarding actions if it chooses. Note: Mill does not suggest that we must interfere with other-regarding actions, only that we can be justified in doing so. For example, second-hand smoke is often an other-regarding action, but this only means we can interfere, not that we must prevent the harm.
The Big Question...
Okay, we get the idea of what Mill is saying, but what exactly qualifies a harm? This is the big question, and it is a tricky one, for Mill.
Let's start with what is not a harm. Offense is not a harm. This means that no matter how much my behavior and my words offend you, this offense does not qualify as a harm. In this sense Mill grants us a "right to offend others" without fear of punishment. Of course, this also means others have a right to offend us (and by offending them this becomes more likely).
What is clearly a harm? Physical assault , or damage to one's property (theft, vandalism, etc.) are clear harms. Still, this does not give a precise determination of what a harm is. Unfortunately, Mill himself does not give us a precise determination. Beyond what I have said above, Mill provides two other general criteria for determining a harm.
- A violation of someone's rights is a harm (though this only begs the question to what rights do we have).
- Actions that prevent us from living up to our obligations towards others is a harm.
Objection: Hey, is anything really self-regarding?
How (it may be asked) can any part of the conduct of a member of society be a matter of indifference to the other members? No person is an entirely isolated being; it is impossible for a person to do anything seriously or permanently hurtful to himself, without mischief reaching at least to his near connections, and often far beyond them. If he injures his property, he does harm those who directly or indirectly derived support from it, and usually diminishes, by a greater or less amount, the general resources of the community. If he deteriorates his bodily or mental faculties, he not only brings evil upon all who depended on him for any portion of their happiness, but disqualifies himself for rendering the services which he owes to his fellow-creatures generally; perhaps becomes a burden on their affection or benevolence; and if such conduct were very frequent, hardly any offense that is committed would detract more from the general sum of good. Finally, if by his vices or follies a person does no direct harm to others, he is nevertheless (it may be said) injurious by his example; and ought to be compelled to control himself, for the sake of those whom the sight or knowledge of his conduct might corrupt or mislead.
And even (it will be added) if the consequences of misconduct could be confined to the vicious or thoughtless individual, ought society to abandon to their own guidance those who are manifestly unfit for it? If protection against themselves is confessedly due to children and persons under age, is not society equally bound to afford it to "persons of mature years who are equally incapable of self-government?"
Why not make gambling, drunkenness, and other moral vices which lead to unhappiness criminal activities? Mill answers this question when he says:
No person ought to be punished simply for being drunk; but a soldier or a policeman should be punished for being drunk on duty. Whenever, in short, there is a definite damage, or a definite risk of damage, either to an individual or to the public, the case is taken out of the province of liberty, and placed in that of morality or law.
For instance, if I have two small children and I gamble away all of my money such that they are not fed or clothed, have I harmed them? Mill would say I have harmed them by failing to live up to my obligation towards them. This too begs the question of what obligations do I have to others. However, this does provide a roadmap to determine what is and what is not a harm.
Mill rejects the "Some people can't handle it and will harm others, therefore the action should be restricted for everyone" type of justification for a crime.
In further response to the above rejection, Mill says that when the harm to society in general (as opposed to a harm to a specific person) ". . . the inconvenience is one which society can afford to bear, for the sake of the greater good of human freedom." Society has already had absolute authority over each individual in their childhood. If that failed to bring them to live virtuously, then why would we think treating them as children now (by punishing them for the harms to themselves) would do any good? The natural consequences of their actions and moral disapproval of society is the best motivator here and not the force of law. Even if we tried law, there is the "they will do it anyway" claim, which purports to show that criminalization (and the harms that come with it) is causing more harm than good.
To argue from a position of majority moral authority is also flawed. If the majority of people are Muslim, does this mean that a law criminalizing the eating of pork is just? Or if the majority is Hindu, can we criminalize the eating of beef or killing of a cow? Mill argues that these actions are offensive and not harmful . To move beyond a harm principle to an enforcement of a maximal moral code (one that tells us how to live in all aspects of our lives) opens the door to wide interpretation, maximal oppression of individuality, and terrible consequences for happiness over time. Mill favors informing law with a minimal moral view based upon harms to persons. If Mill errs here, it is in being to minimal in his construal of harm.
Next, we will apply the Harm Principle to some cases to see how Mill's view resolves questions of liberty.