Mill’s On Liberty and the Modern “Harm to Others” Principle

Abstract

Abstract John Stuart Mill’s famous statement of the harm principle in his “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, Mill’s simple sentence emerged, in the hands of Hart, Feinberg, 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. In an article published in 1999, titled “The Collapse of the Harm Principle,” I argued that the modern harm principle, had collapsed under the weight of its own success and no longer serves, today, as a limiting principle on the legal enforcement of morality. This chapter returns to the argument to draw an important distinction and clarify a central point. The thesis of collapse continues to shed light on contemporary debates over the legal regulation of morality. Today, the hegemony of the modern harm principle, developed by liberal legal thinkers at mid-twentieth century, continues to generate a proliferation of harm arguments, and the competing claims of non-trivial harms have effectively neutralized the limiting function of the harm principle. It demonstrates the continued vitality of the argument by exploring the recent Supreme Court decision on same-sex marriage, United States v Windsor, which, is argued, reflects perfectly the collapse of the harm principle.