From the harm principle to harm decisionism: Hart, Feinberg, and the eclipse of Millian ambiguity

Abstract

From the harm principle to harm decisionism:Hart, Feinberg, and the eclipse of Millian ambiguity Bernard E. Harcourt (bio) 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.1 This simple sentence from John Stuart Mill’s “Introductory” to On Liberty—pulled out of context and denuded of Mill’s sophisticated philosophical treatment—became a foundational reference of Anglo-American criminal law and helped shape the course of penal legislation, enforcement, and theory during the twentieth century. Known as the “harm to others” principle—or “harm principle” for short—Mill’s simple sentence emerged, in the hands of H. L. A. Hart, Joel Feinberg, Herbert Wechsler, and other liberal legal thinkers at mid-century, as the critical principle used to shield individuals from the legal enforcement of morals legislation—including, most notably, penal laws against homosexual conduct, commercial sex, illicit drugs, and other behaviors that came to be known as “moral vices” for some and “victimless crimes” for others. “Harm to others” became, in the 1970s and 1980s, the defining criteria of liberal thinkers in the debate over the proper scope of the criminal law and the legitimate reach of the State—as evidenced, perhaps most notably, by the lead volume of Feinberg’s magisterial and influential treatise on The Moral Limits of Criminal Law, titled “Harm to Others,” published in 1984. As Mill himself had recognized in his sophisticated analysis of the “harm to others” language in later chapters of On Liberty, however, the simple notion of “harm to others” was far too crude a criterion to [End Page 185] withstand the pressure of majority opinion—far too vulnerable to the rhetorical ploys and charismatic interventions that shape mass public sentiment—which was precisely what Mill was trying to rein in. The advent of liberal democracy in the nineteenth century, Mill explained in framing On Liberty, had raised a new set of concerns, not only about representation, but also about “social tyranny.”2 In the emerging liberal democracies, Mill wrote, the problem was no longer, or not only to protect against “the acts of the public authorities,” but also to guard against the tidal wave of public opinion that could so easily encroach on individuality and self-development: “Protection, therefore, against the tyranny of the magistrate is not enough; there needs protection also against the tyranny of the prevailing opinion and feeling, against the tendency of society to impose, by other means than civil penalties, its own ideas and practices as rules of conduct on those who dissent from them…”3 Mill was rather explicit in his criticism of public opinion, which, he observed, “now rules the world” and reflects “the tendencies and instincts of the masses,” which he expressly equated with “collective mediocrity.”4 Mill was by no means opposed to liberal democracy, to majority rule, nor to the extension of suffrage—in fact, he was an outspoken advocate of women’s suffrage and defended universal suffrage5—but he was deeply concerned about the potential impact of mass popular opinion on individualism. He did not resist, but sought instead to mediate the emerging defects of the more generalized suffrage by refining democratic theory. And he did so, in part, by advocating leadership by the more enlightened few: I am not complaining of all this. I do not assert that anything better is compatible, as a general rule, with the present low state of the human mind. But that does not hinder the government of mediocrity from being mediocre government. No government by a democracy or a numerous aristocracy, either in its political acts or in the opinions, qualities, and tone of mind which it fosters, ever did or could rise above mediocrity except in so far as the sovereign Many have let themselves be guided (which in their best times they always have done) by the counsels and influence of a more highly gifted and instructed one or few. The initiation of all wise or noble things comes and must come from individuals; generally at first from some one individual.6 From this perspective, evidently, the simple notion of...