Mill's Harm Research Articles

Disgust, Offensiveness and the Law

abstract Martha Nussbaum's concern is to limit the role that emotions can legitimately play in the definition of the criminal law. She would allow nuisance laws to curtail the occasioning of disgust but only disgust of a certain kind. Problems arise for her account when she extends this analysis to the prevention of offensiveness. Unavoidable is an evaluation of those beliefs subscription to which explains the taking of offence. Hence the principal problem for a liberalism of the kind Nussbaum defends is how to combine Mill's harm principle with a Rawlsian understanding of the reasonableness of belief.

J. S. Mill and the American Law of Quarantine

This paper looks at the American law of quarantine in light of the teachings of John Stuart Mill, whose harm principle has often been used to justify the practice of isolating and/or quarantining individuals to prevent the spread of an infectious disease. The paper shows that despite important parallels between quarantine law and both the authorizing and prohibitive aspects of Mill's harm principle, the contemporary law of quarantine does not reflect either Mill's concern for the potential abuse of executive authority nor his recognition that quarantine is only ethically justified when the broader public health policy environment in which quarantine is applied is itself ethically sound.

Moral, Prudential, and Political Arguments about Harm Reduction

A May 28, 2007 New York Times story profiled Ron Daniels, director of Prevention Works, a syringe exchange in Washington, DC. The front-page story depicted Daniels' journeys through low-income neighborhoods in his Winnebago van, as he distributed sterile syringes and other supplies to injection drug users. Himself infected with HIV from a contaminated syringe, Daniels was operating Washington's only syringe exchange. Local health clinics had provided similar services until 1998, when Congress, which enjoys special authority over the United States' capital city, explicitly forbad the DC government from financing these services.* Defending such stringent policies, Missouri Congressman Sam Groves stated: We need to fight drugs, not show people they can be used in a safe manner.1Why is the United States so resistant to public health strategies that find wide acceptance in many other wealthy democracies? This old question remains pressing. More important, given our history of missed opportunities to reduce the harms connected with HIV/ AIDS, can we do better?In part, American resistance reflects stringent views towards foundational questions of drug policy. Federal sentencing guidelines consider a 5-gram sale of crack to merit greater penalty than attempted second-degree murder that results in serious injury to the victim.2 In some cases, nonviolent firsttime offenders receive mandatory minimum sentences of 25 years or more that exceed penalties imposed for homicide, attempted hijacking, and other violent offenses.34Although few ballot initiatives to allow medical marijuana or to overturn harsh sentencing laws ultimately succeed, their continued popularity suggests that many voters believe that American drug policy has lost its way. So, in more quiet ways, do the majority arguments in recent Supreme Court rulings that grant judges greater discretion to depart from federal guidelines in sentencing crack offenders.5Some critics go further. Mill's harm principle can (but does not have to) be interpreted to support principled objection to government regulation of drug use.67 Most academic researchers are critical of punitive drug policies, but nonetheless accept the right of government to outlaw or to stringently regulate some substances likely to cause severe and likely harm.689Under any feasible policy regime, some citizens will consume heroin, cocaine, or other intoxicating substances. Whether such consumption occurs inside or outside legal boundaries, societies have strong practical reasons to address the accompanying harms. Striking the right balance between deterrence and compassion is an enduring tension in drug policy.This article considers how the public health community might better-address this tension, given the embattled politics that surround efforts to assist substance users. This article mainly focuses on the United States. Several other wealthy democracies have achieved greater success in similar policy domains. I hope that this article reflects lessons learned in European, Canadian, and Australian settings, and that some insights presented here may be useful for other settings. Detailed analysis of harm reduction outside the United States is beyond the scope of the current article.Drawing on terminology advanced by MacCoun and Reuter, this article first describes the term harm reduction, and some of its accompanying complexities. It then describes the political controversy over needle/syringe distribution programs (NSPs) within the United States, and why the term harm reduction and accompanying interventions have proved so politically embattled in this country. It suggests that the public health community has stumbled in its efforts to sidestep the moral and cultural politics of harm reduction, and that more explicit arguments rooted in the humanity of drug users are essential to enact more reflective and humane public policies.Much confusion arises because the single term harm reduction connotes several different things to different authences: a guiding set of questions for policy analysis, a convenient moniker for particular HIV prevention interventions, a unifying slogan of a disparate political movement of activists, public health practitioners, and scholars seeking less punitive drug policies. …

Rhetoric, Harm, and the Personification of Progress in Mill's On Liberty

Abstract. On Liberty was written to influence the future of democratic government. To that end Mill employed rhetoric, particularly through the use of personifications, to persuade the mid‐nineteenth century British electorate to embrace the cause of civil liberty. His more subtle argumentation was directed to the intelligentsia (both his contemporaries and subsequent generations). Mill's harm principle, perhaps the most influential idea in On Liberty, undergoes a significant qualification in the scope of its application in the last chapter because of the dual argumentative strategy. This has been overlooked by Mill's American interpreters who use the harm principle to justify the judicial activism of the American Supreme Court. Further, the judicial restraint of recent Supreme Court of Canada decisions can be reaffirmed through a scrutiny of Mill's rhetorical agenda.

VALUE AND INTELLIGENT COLLEGIATE DEPRESSION

Abstract: Philosophy teachers converse with troubled students who suffer from what I dub “intelligent collegiate depression” (ICD): a lack of self‐esteem, feelings of futility and pessimism about their futures, a distrust of academic values, and a lack of conviction that their lives matter. Students express their values and their resignation with what approaches conventional wisdom for them: They must be allowed to act as they wish so long as they do not hurt anyone; otherwise it does not matter what they do with their lives. I argue here that students' endorsement of this near‐nihilistic version of Mill's harm principle shows that they are committed to believing in more values than they realize. I then show how to parlay this commitment into a rejection of the worst effects of ICD—all the while holding in abeyance the question of metaethical objectivism vs. subjectivism. My approach shows that accepting a popular ICD premise logically undermines much of the unhappy ICD worldview.

RESPONSIBILITIES FOR HATEFUL SPEECH

This essay consolidates some fragments of the contemporary theory of expressive freedoms, bringing together scattered conceptual distinctions (e.g., hurting and harming, tolerating and legitimating) and moves (e.g., the need to rectify hateful speech and to constrain harmful actions legally) into an account that is sensitive to the needs of abused groups but faithful to the libertarian tradition associated with Mill's harm principle. Accepting this principle as the fundamental condition warranting legal control of action, we explore legislative responsibilities for protecting expressive freedoms through three additional presumptions. The chief of them is an expectation of epistemic rationality that limits occasions of harm requiring legal action. A presumption of enablement over punishment shows that criminal sanctions for hateful speech are almost never appropriate. A presumption of multiple responsibilities accepts that social sanctions may be appropriate where political coercion is not.

John Stuart Mill and Unassimilated Subjects

Mill's harm principle declares that one's liberty of action may be interfered with by the state only if one has caused harm to others. Cases of culture clash involve unassimilated subjects, be they citizens, aliens, immigrants or national minorities, who violate the law while engaging in a practice that is a prevalent and legitimate part of their native culture or religion and which they do not regard as harmful. A Millian approach to the punishment of unassimilated subjects is explored by examining Mill's views on whether there is an objective standard of harm and Mill's discussions of free will, moral responsibility and the respect due to native cultures.

From Harm to Robustness: A Principled Approach to Vice Regulation

John Stuart Mill's harm principle maintains that adult behavior cannot justifiably be subject to social coercion unless the behavior involves harm or a significant risk of harm to non-consenting others. The absence of harms to others, however, is one of the distinguishing features of many manifestations of vices such as the consumption of alcohol, nicotine, recreational drugs, prostitution, pornography, and gambling. It is therefore with respect to vice policy that the harm principle tends to be most constraining, and some current vice controls, including prohibitions on prostitution and drug possession, violate Mill's precept. In the vice arena, we seem to be willing to accept social interference with what Mill termed self-regarding behavior. Does consistency then imply that any popular social intervention into private affairs is justifiable, that the government has just as much right to outlaw skateboarding, or shag carpets, or spicy foods, as it does to outlaw drugs? In this paper I argue that advances in neuroscience and behavioral economics offer strong evidence that vices and other potentially addictive goods or activities frequently involve less-than-rational choices, and hence are exempt from the full force of the harm principle. As an alternative guide to vice policy, and following some direction from Mill, I propose the robustness principle: public policy towards addictive or vicious activities engaged in by adults should be robust with respect to departures from full rationality. That is, policies should work pretty well if everyone is completely rational, and policies should work pretty well even if many people are occasionally (or frequently) irrational in their vice-related choices. The harm and robustness principles cohere in many ways, but the robustness principle offers more scope for policies that try to direct people for their own good, without opening the door to tyrannical inroads upon self-regarding behavior.

Do We Live in an Unjust World?

Many unjust relationships continue to exist among peoples as well as among individuals. Perhaps there are so many of them that their sum total supports the verdict that we live in an unjust world. Yet this study asks whether the global order as such is unjust, and seeks to give a partial answer to that question by showing that at least some prominent ways of arguing that it is fail. That question must seem hopelessly amorphous. Yet not only do we have to ask it, we will also mean something reasonably precise by it. We must ask it since the unit of political discourse becomes ever more the world as such. Globalization is a household world. So we must ask a question in the global context that we have asked all along about relationships among individuals and societies, namely, is it just? This question has great practical import: if the global order is unjust, the culprits will have duties in justice to rectify the situation, duties that could not simply be subordinated to domestic concerns. To make our question more precise, I adopt a minimal conception of justice and ask whether the global order as such is unjust in that sense. I ask whether there is a straightforward sense in which the global order harms the poor. Much intricacy is tied to the idea of harming, as we know from the debate about Mill's Harm Principle (just what counts as 'harming'?). The sort of harm that is beyond this inquiry is vulnerability, the fact (rather than the harmful exercise) of domination, harm done because some people's needs remain unsatisfied, or because some deserve more than they own and harm done by the mere omission of bringing about a better state of affairs, and so is any injustice characterized along such lines. Adopting this minimal conception entails that we will be able to provide but a partial answer to the title question if a broader conception of justice at the global level can be made plausible.

Liberal Pornographic Rights

The conservative antipornographic premise (defined and connected) should be faulted for its groundlessness. Thus, conservative state censorship should be challenged by liberal individual rights to pornography and further by the value of moral harm. Along with the spirit of J. S. Mill's harm principle, the right to free speech, including of course pornographic right, must prevail. And a number of feminist challenges to free pornographic rights are replied to in a variety of ways by some liberal thinkers who believe in the supremacy of the First Amendment in the Bill of Rights of the U.S. Constitution. The concept of neutralizability may be added among those replies. Liberal pornographic rights prevail these days.

No Harm, No Foul

Christianity is generally thought to entail a pro-life position on abortion rights. Since the fetus is a person, on this view, from the moment of conception, abortion is murder and hence should be legally prohibited. In this essay, I will concede for the sake of argument the claims that the fetus is a person and that abortion is murder, but I will argue that a Christian can coherently hold that abortion should be legally permitted anyway. The argument will principally be based on claims regarding the ultimate fate of moral innocents and certain commonly accepted liberal normative philosophical views on what behaviors may be legitimately criminalized. In particular, I will assume, as an illustration of how one can hold morally pro-life views and legally pro-choice view, on Mill's harm principle, and argue that, on the assumption that children get a free pass to heaven if they die before reaching the age of reason. I ground the conclusion in something resembling an original position argument with respect to a fetus, and the fact that on most mainstream versions of Christianity, comparatively few people achieve heavenly bliss.

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The article assesses the legitimacy of criminalizing drugs on the basis of relevant liberty-limiting principles. Where appropriate, empirical findings about drugs, drug use and drug policies are used to make the assessment. John Stuart Mill's harm principle is the pivotal element of this exploration and Joel Feinberg's framework of the moral limits of criminal law is used as a heuristic. First, the article considers whether legal moralism or legal paternalism provide arguments convincing enough to justify the criminalizing of drugs. Second, it explores whether individual conduct that does not harm others but causes harm to society by accumulation provides sufficient justification. The article concludes that drug use falls within the jurisdiction of individual choice that Mill identifies in his principle of liberty and the ‘accumulative harm’ perspective does not carry enough weight to justify their prohibition, and therefore society is not morally authorized to criminalize drugs.

‘A Single Truth’: Mill on Harm, Paternalism and Good Samaritanism

On Liberty provides the classic defence of what has come to be known as Mill's harm principle and yet that principle is commonly believed to be at odds with Mill's equally famous discussions of paternalism and good samaritanism. Moreover, the alleged inconsistencies are often said to expose the inadequacies not only of Mill's antipaternalism and good samaritanism but his harm principle as well. This paper offers a re-interpretation of these three aspects of On Liberty. It attempts to show both the unity of Mill's thought and how the contemporary relevance of his ideas has been misunderstood.

Mill and the Value of Moral Distress

People are sometimes distressed by the bare knowledge that lifestyles are being practised or opinions held which they take to be immoral. Is this distress to be regarded as harm for the purposes of Mill's Harm Principle? I argue, first, that this is an issue that is to be resolved not by analysis of the concept of harm but by reference to the arguments in On Liberty with which the Harm Principle is supported. Secondly, I argue that reference to those arguments makes it clear beyond doubt that, since Mill valued moral confrontation and the shattering of moral complacency as means to social progress, he must have regarded moral distress as a positive good rather than as a harm that society ought to intervene to prevent. Thirdly, I relate this interpretation to Mill's points about temperance, decency and good manners. I argue, finally, that my interpretation is inconsistent with Mill's underlying utilitarianism only if the latter is understood in a crudely hedonistic way.