The Harm Principle, Again

Today is the 200th anniversary of the birth of John Stuart Mill, author of the seminal essay, On Liberty, in Chapter 1 of which we find the lodestone of libertarianism, the harm principle:

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. These 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.

I addressed the harm principle recently, in “The Harm Principle” and “Footnotes to the Harm Principle.” Joe Miller of Bellum et Mores has done me the honor of commenting on “The Harm Principle” at his blog and in a post at Catallarchy, which post is an entry in a Mill-fest organized by Joe in honor of the Millian bicentennial.

What Joe has not done, in either of his commentaries on my post, is address my underlying objections to what I call “the superficial . . . interpretation of [Mill’s] words by most adherents of ‘liberalism’.” Why superficial? The answer is found in my series “The Meaning of Liberty,” which I incorporated by reference into my post, “The Harm Principle.” Specifically, it is found in the installments entitled “Liberty as a Social Compact” and “Social Norms and Liberty,” from which I quote at length:

Liberty arises from a social compact, it is not in our genes and does not flow from heaven like manna. The social compact — in its simplest terms — is this: Each of us may do as he or she pleases as long as what we do does not bring harm to others. But that formula (essentially John Stuart Mill’s “harm principle“) is misleadingly simple.

Liberty requires a consensus about harms and the boundaries of mutual restraint — the one being the complement of the other. Agreed harms are to be avoided mainly through self-restraint. Societal consensus and mutual restraint must, therefore, go hand in hand.

Looked at in that way, it becomes obvious that liberty is embedded in society and preserved through order. There may be societally forbidden acts that, to an outsider, would seem not to cause harm but which, if permitted within a society, would unravel the mutual restraint upon which ordered liberty depends. . . .

What happens to self-restraint, honesty, and mutual aid outside the emotional and social bonds of family, friendship, community, church, and club can be seen quite readily in the ways in which we treat one another when we are nameless or faceless to each other. Thus we become rude (and worse) as drivers, e-mailers, bloggers, spectators, movie-goers, mass-transit commuters, shoppers, diners-out, and so on. Which is why, in a society much larger than a clan, we must resort to the empowerment of governmental agencies to enforce mutual restraint, mutual defense, and honesty within the society — as well as to protect society from external enemies.

But liberty begins at home. Without the civilizing influence of traditional families, friendships, and social organizations, police and courts would be overwhelmed by chaos. Liberty would be a hollower word than it has become, largely because of the existence of other governmental units that have come to specialize in the imposition of harms on the general public in the pursuit of power and in the service of special interests (which enables the pursuit of power). Those harms have been accomplished in large part by the intrusion of government into matters that had been the province of families, voluntary social organizations, and close-knit communities. . . .

In sum, liberty is not an abstract ideal. Liberty cannot be sustained without the benefit of widely accepted — and enforced — social norms. A society that revolves around norms established within families and close-knit social groups is most likely to serve liberty.

Social norms can and do evolve. Moreover, in a society with voice and exit they will evolve toward greater liberty, rather than less, if exit is not mooted by legislative and judicial imposition of common norms across all segments of society. . . .

Social norms may evolve beneficially, but they are overthrown by legislators and judges to the detriment of society. . . .

Social norms may be consistent with the abstract idea of liberty — that one may be left alone if one leaves others alone — but they necessarily go beyond that generality to set specific limits on acceptable behavior. Behavior that strays beyond those limits is that which may lead to the subversion of liberty, either through the direct harms it may cause or through its subversive effects on social cohesion. (Such prospects underlie much of the opposition to legislatively or judicially imposed abortion rights and same-sex marriage, for example. . . .)

The point is that liberty and happiness cannot be found in the abstract; they must be found in the real world, among real people (or totally apart from them, if you’re inclined to reclusiveness). Finding an acceptable degree of liberty and happiness in the real world means contending with many subsets of humankind, each with different sets of social norms. . . . It is unlikely that any of those sets of social norms affords perfect liberty for any one person. So, in the end, one picks the place that suits one best, imperfect as it may be, and makes the most of it. Sometimes one even tries to change it, but change doesn’t always go in the direction one might prefer.

Think of the constrasting visions of liberty and happiness represented in a hippie commune and a monastic order. The adherents of each — to the extent that they are free to leave — can be happy, each in his and her own way. The adherents of each are bound to, and liberated by, the norms of the community, which set the bounds of permissible interaction among the adherents. Happiness is not found in the simplistic “harm principle” of John Stuart Mill; happiness is not found in a particular way of life; happiness is found in the ability to choose (and exit) a way of life that, on balance, serves a person’s conception of happiness.

In sum, there is no escaping the fact that the attainment of something like liberty and happiness requires the acceptance of — and compliance with — some social norms that one may find personally distasteful if not oppressive. But it is possible — in a large and diverse nation where each social group is free to establish and enforce its own norms — to find a place that comes closest to suiting one’s conception of liberty and happiness. The critical qualfication is that each social group must free to establish and enforce its own norms, as long as those norms include voice and exit.

I summarize at the end of the final installment, “Finding Liberty“:

The bottom line of this series:

  • Liberty suffers when a central government does more than make war, conduct foreign affairs, and regulate inter-State commerce for the sole purpose of ensuring against the erection of barriers to trade.
  • Liberty suffers when a central government imposes rules on all at the instigation of the majority or coalitions of minorities.
  • Liberty thrives when the rules that govern relations among the members of a group are agreed among the members of the group — even if those rules vary from group to group. One group’s liberty may be another group’s strait-jacket, and vice versa.

It is easy to say that liberty consists of doing what we please as long as what we do does not bring harm to others. It is very hard to say what will and will not do harm. Socially evolved norms offer the best guide. We ignore and summarily reject those norms at great peril to liberty.

The simplistic definition of liberty — do as you please but do no harm to others — is superficially appealing. But it glides over the definition of harm, which may vary widely from group to group. Those who advocate abortion and same-sex marriage, for instance, may see those practices as harmless, but they fail to take into account the downstream effects of those practices on civility, without which life would be “solitary, poor, nasty, brutish, and short.”

Those who wish to live the simplistic libertarian life of “do no harm to others” are welcome to it, if they can find it in a group of like-minded persons. There is no such thing as a neutral or objective definition of “harm.” Simplistic libertarians merely have a particular conception of “no harm” that they should not be able to impose on others who disagree with that conception. I, for example, do not wish to be bound by the simplistic libertarians’ blind adherence to the non-aggression principle, which is both fatuous and suicidal. (See this, this, this, this, and this.)

That is why it is so important to devolve most governmental power to small groups. Doing so enables exit and makes it more likely that leaving will be rewarded by finding membership in a more congenial group. (For that reason I would constrain the size and membership of each zone of liberty, creating more of them instead of allowing any one of them to grow beyond the size of a small village — perhaps not exceeding a population of 150.)

In conclusion, true liberty can be found in these four rules:

  1. A group’s behavior must be governed by norms that have evolved among its members, rather than being forced on them through executive, legislative, or judicial edict. (Though legislation, if backed by a super-majority of the populace, may reflect evolved norms.)
  2. The norms must be susceptible of further, unforced change.
  3. Dissidents must be free to state their dissent openly, without fear of coming to physical harm at the hands of society or the state. (One must accept the possibility of disapproval, and even ostracism, but disapproval and ostracism are much less likely if one begins as an accepted member of a social group.)
  4. Dissidents must be free to leave, without paying any penalty other than the cost of leaving.

What I have done is craft a richer version of the harm principle, a version that recognizes the realities of human co-existence, the difficulty of defining harm, and the possiblity (under the proper system of federalism) of finding one’s niche, according to one’s particular vision of the “good life” (which necessarily requires compromises involving myriad “goods” and “harms”).

Joe nevertheless dismisses my richer version (if he ever really considered it) by saying that

the sorts of things that . . . [he] point[s] to as the dangers of permissive individual liberty [e.g., state sponsorship of abortion and same-sex marriage] are not at all obviously bad. Maybe it’s true that . . . dudes marrying dudes will destroy society. More likely, though, is that allowing . . . gay marriage will undermine one possible society, not the very possibility of society. But whether that one possible society is the one at which we all ought to aim is a matter of debate. Here’s Mill again:

On questions of social morality, of duty to others, the opinion of the public, that is, of an overruling majority, though often wrong, is likely to be still oftener right; because on such questions they are only required to judge of their own interests; of the manner in which some mode of conduct, if allowed to be practised, would affect themselves. But the opinion of a similar majority, imposed as a law on the minority, on questions of self-regarding conduct, is quite as likely to be wrong as right; for in these cases public opinion means, at the best, some people’s opinion of what is good or bad for other people; while very often it does not even mean that; the public, with the most perfect indifference, passing over the pleasure or convenience of those whose conduct they censure, and considering only their own preference.

It’s hard to imagine what could possible be more self-regarding than whom one marries. . . . This brings us to Mill’s “experiments in living.” . . . Mill would, at the very least, probably endorse something like the Massachusetts experiment with legalized gay marriage. If Massachusetts collapses as a result, then we’ll know better than to repeat that particular experiment. When, as I think likely, the great Massachusetts experiment ends with lots of gays and lesbians living happily together (and, more than likely, an almost equal number divorcing and living happily with someone else), well then there won’t be all that much reason for other states to resist following suit.

Close, Joe, but no cigar. First, there’s the question of self-regarding conduct — what it is and what it isn’t. Joe doesn’t address abortion, but abortion cannot be seen as self-regarding conduct unless one is willing to accept the propagandistic view that a fetus is “merely” part of a woman’s body and not a human life. Even a simplistic interpretation of the harm principle might (should) lead one to conclude that abortion is wrong. (For much more, read this.) That is to say, the notion of self-regarding conduct — like the harm principle — is a misleadingly simple formulation that masks a plethora of difficult issues.

Joe confines himself to the seemingly more clear-cut examples of pornography (not my issue) and same-sex marriage. He dismisses my indictment of same-sex marriage — which I indict on libertarian grounds (spelled out at length, here) — by invoking self-regarding conduct (even though marriage is a social institution, not self-regarding conduct) and Mill’s notion of “experiments in living.”

The problem with “the great Massachusetts experiment” in same-sex marriage is this: A long-standing law, rooted in longer-standing social norms, has been overthrown not by the further evolution of those social norms but by four justices of the Massachusetts Supreme Judicial Court (Goodridge v. Department of Public Health), just as abortion was legalized throughout the United States by seven justices of the U.S. Supreme Court (Roe v. Wade), based in part on poor constitutional reasoning and in part on a bogus history of abortion in the United States.

It is true that both court decisions (and others of their ilk) overturned laws that were made by “mere” majorities of legislatures, but those laws, in fact, arose from evolved social norms — unlike the decisions that overturned them. Moreover, whether “gays and lesbians liv[e] happily together” is not the issue. The issue is the effect of same-sex marriage on the societal cohesion that underlies liberty, and how the state’s effective denigration of heterosexual marriage — which is the central civilizing influence in our society — will affect that social cohesion. Joe dismisses that possibility, but I cannot. As I say here,

I do not find it a coincidence that loud, loutish, crude, inconsiderate, rude, and downright foul behaviors seem to have become the norm since the the end of World War II. Such behaviors have risen in parallel with the retreat of most authority figures in the face of organized violence by “protestors” and looters; with the rise of political correctness; with the perpetuation (in deed if not word) of the New Deal and its successor, the Great Society; with the erosion of swift and sure justice in favor of “rehabilitation” and “respect for life” (but not for potential victims of crime); and with the legal enshrinement of infanticide and buggery as acceptable (and even desirable) practices.

People respond to signals. The state’s signals are drowning out the signals that used to be transmitted primarily by voluntary social institutions: family, friendship, community, church, and club. (Again, go here for the full treatment.)

The disagreement between Joe and me is (I think) a disagreement about means, not ends. Joe rightly views the state as a threat to liberty, and so he celebrates those actions by the state that seem to be liberating because they comport with his reading of the harm principle. What he seems to overlook, or to credit insufficiently, is the dependence of liberty on civil society, and the dependence of civil society on evolved social norms. I, too, view the state as a threat to liberty, in many ways (e.g., through taxation and regulation). But the state also threatens liberty when it undermines civil society by overthrowing laws that reflect evolved social norms. The only social norms that the state should overthrow, for the sake of liberty, are those that deny voice and exit.

Recommended reading:

Thoroughly Modern Mill,” by Roger Scruton at OpinionJournal
Happily Burying Bentham,” by Max Borders at TCS Daily
The Family vs. the State,” by Arnold Kling at TCS Daily