The harm principle is a principle of liberty articulated by British philosopher, economist, and politician John Stuart Mill (1806–73) in his book On Liberty, first published in 1859. In this work, Mill attempted to define the moral limits of the state’s power over the individual; that is, how far can the state go in limiting an individual’s freedom of thought and behavior? Mill’s answer was “not very far.” As long as individuals do not cause harm to others, they should be at liberty to do whatever they please, even if what they are doing is injurious to themselves. It is Mill’s conception of harm that has been the basis for debating the limits of societal tolerance in academia and in the courts ever since its publication.
According to Mill, individuals should enjoy the liberty to swing their arms in any and all directions, and the liberty to do so should only be constrained by force of law when a person’s arms connect with someone else’s nose. This is one of the core principles of libertarianism: If a person pulls his or her own arm out of joint swinging it, that person has only harmed his- or herself, and that should be no business of anyone else. To have the government intervene to protect people from harming themselves (for instance, banning “supersized” sugary beverages to try and curb obesity, as done in New York in 2012) leads to a “nanny state” and to the loss of individuality. The harm principle is a principle of negative liberty (as opposed to positive liberty), which is freedom from external interference and restraint. The individual is sovereign over his or her own mind and body, and activities that pose no threat to others are no business of the state. The principle is part of Mill’s belief in utilitarianism—the greatest good for the greatest number.
The harm principle is obviously a principle of major interest in criminal justice. Many current or former statutory crimes are in violation of it. So-called vice crimes are in this category. Some people view vice crimes as acts freely undertaken by all parties involved, and thus should be outside the purview of state interference. Such current and former vice crimes as drug sales, adultery, sodomy, illicit gambling, prostitution, and pornography were condemned on moral grounds rather than on harm grounds in former times. Because traditional morality does not resonate as strongly today as in the past, debates on these activities now focus on harm. The shift of emphasis from morality to harm leads to a key term—consensual—being included in the definition of a vice crime. In other words, parties in the above activities have freely agreed to take part in them because they find them pleasurable or rewarding in one way or another. Because these acts are consensual, some prefer to refer to them as victimless, since any harm that may arise from such activities supposedly accrues only to those who choose to engage in them. If the law interferes with those engaging in such activities, the harm principle condemns it as an unwarranted and patronizing infringement on their liberty.
The term victimless is popular among advocates of the decriminalization of vice crimes. But the term invites rancorous debate because no vice crime is entirely victimless. Leaving aside the fact that vice crime participants may be harming themselves, those who oppose legalization argue that the real victims are often third-party innocents, and the distinction between harm and morality is a false one since the harm argument is simply a subcategory of a moral argument. The man who brings a sexually transmitted disease back to his wife after visiting a prostitute, or who gambles away the family’s money, and the woman who takes illicit drugs during pregnancy or has an adulterous affair are all causing harm to others. It may be argued that vice crimes may be better conceptualized as consensual mala prohibita acts that always have the potential for causing harm to others as well as to the person engaging in them. Many debates about such activities thus become debates about definitions of “harm.”
The issue of harm revolves around questions such as: “Who is harmed?” “What is the nature of the harm?” and most important, “Is the harm caused by criminalizing the act worse than the harm caused by the act itself?” If it is the case that vice crimes always harm people other than the participants, the debate becomes one of whether the harm caused by criminalizing such acts and enforcing their prohibition is greater than the harm caused by the acts themselves. Few people would deny that drug abuse, for instance, is terribly destructive to both the individual and to society, but the cost of enforcing illicit drug laws in terms of financial cost, police corruption, and the swamping of America’s courts, jails, and prisons is a “harm” that is perhaps many times worse than the problem it attempts to stamp out. The United States found this out with the prohibition of alcohol in the early 20th century.
- Harcourt, Bernard. “The Collapse of the Harm Principle.” Journal of Criminal Law and Criminology, v.90 (1999).
- Mill, John Stuart. On Liberty. London: Longmans, Green, and Co., 1913.
- Stuntz, William. “Self-Defeating Crimes.” Virginia Law Review, v.86 (2000).
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