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THE HARM PRINCIPLE

NILS HOLTUG

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THE HARM PRINCIPLE

ABSTRACT. According to the Harm Principle, roughly, the state may coerce a person only if it can thereby prevent harm to others. Clearly, this principle depends crucially on what we understand by ‘harm’. Thus, if any sort of negative effect on a person may count as a harm, the Harm Principle will fail to sufficiently protect individual liberty. Therefore, a more sub- tle concept of harm is needed. I consider various possible conceptions and argue that none gives rise to a plausible version of the Harm Principle. Whether we focus on welfare, quan- tities of welfare or qualities of welfare, we do not arrive at a plausible version of this prin- ciple. Instead, the concept of harm may be moralized. I consider various ways this may be done as well as possible rationales for the resulting versions of the Harm Principle. Again, no plausible version of the principle turns up. I also consider the prospect of including the Harm Principle in a decision-procedure rather than in a criterion of rightness. Finally, in light of my negative appraisal, I briefly discuss why this principle has seemed so appealing to liberals.

KEY WORDS: autonomy, harm, liberalism, liberty, utilitarianism, welfare

1. INTRODUCTION

In On Liberty, John Stuart Mill famously argued that “the only purpose for which power can be rightfully exercised over any member of a civi- lised community, against his will, is to prevent harm to others”. 1 This principle, sometimes referred to as the Harm Principle, continues to attract much attention amongst contemporary liberals and to find able defenders. 2 It also seems well suited to explain the generally liberal attitude both ordinary citizens and policy-makers in western demo- cratic societies take towards the treatment of individuals. None of this is very surprising since the Harm Principle expresses a deep concern for individual liberty and toleration. Consider, for instance, the issue of whether homosexual acts should be subject to criminal sanctions. Liberals hold that if men choose to have sex with men or women with women, that is their business, not the law’s; and they often defend this view by arguing that those who find homosexuality offensive are not harmed by it. Indeed, this argu-

1 Mill (1962), p. 165. 2 For recent defences of the Harm Principle, see, e.g., Hart (1963), Feinberg (1984), and Raz (1986), Chapter 15.

Hart (1963), Feinberg (1984), and Raz (1986), Chapter 15. Ethical Theory and Moral Practice 5 :

Ethical Theory and Moral Practice 5: 357–389, 2002. © 2002 Kluwer Academic Publishers. Printed in the Netherlands.

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ment played an important political role in the decriminalization of ho- mosexuality in England. As Herbert Hart points out, when the Commit- tee on Homosexual Offences and Prostitution argued in the Wolfenden Report in 1957 that homosexual acts between consenting adults should no longer be a crime, it was on the basis of principles strikingly simi- lar to Mill’s. 3 Interestingly, the Harm Principle has recently been invoked in vari- ous contexts in bioethics. For instance, Max Charlesworth has argued that the law should not prevent any mode of family formation that does not directly harm others, 4 including IVF and surrogate motherhood. 5 He also suggests that, since they do not directly harm others, the law should not prevent suicide and euthanasia. 6 More generally, bioethics seems to be one of the main fields in which liberals and conservatives clash these days. The Harm Principle is also implicit in the way many issues of state regulation are dealt with. Consider, for instance, the highly controver- sial issue of genetically modified (GM) food. Within the European Union GM foods are required to undergo a risk assessment involving the measurement of potential negative effects on the environment and human health. After favourable assessments of this kind the foods are declared marketable. It is presumably felt that, as long as food manu- facturers do not harm anyone, their liberty to produce and sell, as well as the liberty of consumers to buy, need not be interfered with. Many citizens, on the other hand, have reservations about GM foods that have nothing to do with harm or risk. In this paper I offer a negative appraisal of the Harm Principle. The precise content and implications of the principle are in many ways un- clear, so I begin by developing an interpretation of it. I then focus on what seems to me to be the main critical question about the principle, namely: what constitutes harm? Having considered a number of pru- dential and moral conceptions of harm, I conclude that none can be used to state a plausible version of the Harm Principle. Finally, I briefly consider why the Harm Principle has seemed plausible to so many liberals when, in the end, it should be rejected.

3 Hart (1963), p. 14. 4 Charlesworth (1993), p. 66. 5 Charlesworth (1993), p. 74. 6 Charlesworth (1993), p. 39.

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2. DIMENSIONS OF THE HARM PRINCIPLE

An initial suggestion as to how the Harm Principle should be formu- lated is this:

(1) The state may intervene in the life of an individual against his will only if by doing so it will prevent or reduce harm (risk) to others.

Immediately, I need to make a number of clarificatory comments. (i) Although, importantly, the Harm Principle rules out paternalis- tic intervention in an individual’s life, this is not the aspect of the prin- ciple with which I shall be primarily concerned. My main topic is how, and to what extent, effects on others justify interference. 7

(ii) I shall take the Harm Principle to limit the state’s intervention

in the lives of its citizens and ignore its application to the activities of other institutions.

(iii) The sort of intervention it applies to is coercion. Clearly, a good

deal could be said about what qualifies as coercion and what does not, but for present purposes I shall operate with an intuitive understand- ing of this concept. Intuitively, for example, legal sanctions, the con-

fiscation of property and mandatory taxation to which the taxee does not agree amount to coercion, whereas information campaigns about the risks of smoking do not.

(iv) If the state is to be justified in coercing a person to prevent harm

to others, the relevant coercion needs to be necessary in order to pre- vent the harm – or at least morally superior to alternative ways of

avoiding it. If the state could prevent a person from harming others simply by asking him nicely, then it should not coerce him.

(v) There are both ex-ante and ex-post versions of the Harm Princi-

ple. According to an ex-post version, coercion is justified only if it in fact prevents or reduces harm. According to an ex-ante version, coer- cion is justified only if it prevents or reduces risk. 8 Consider a case in which a doctor in a medical experiment exposes a research subject to a drug that has a fifty percent chance of curing her and a fifty percent chance of killing her. Suppose also that, luckily, she is cured. Whereas an ex-ante version of the Harm Principle is compatible with state co-

7 For discussion of the former part of the principle, see e.g., Dworkin (1972). 8 For the view that the state may coerce a person merely to prevent or reduce the risk he poses to others, see e.g., Mill (1962), p. 213, and Feinberg (1984), pp. 190–193.

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ercion to prevent the doctor from conducting the experiment, an ex- post version is not. Note that when the state coerces an individual, it may reduce risk at different locations so to speak. Perhaps the state succeeds in suitably modifying a person’s behaviour, such that it is less risky. But suppose instead that the state does not succeed in modifying it. Its coercive meas- ures may still reduce risk and so be justified on an ex-ante version of the Harm Principle, assuming that there was some probability that they would have brought about the appropriate changes in him. Proponents of the Harm Principle usually prefer an ex-ante read- ing, according to which coercion can be justified only if it reduces risk. In what follows I shall, then, assume an ex-ante reading, but for

the sake of simplicity, I shall sometimes speak as if it is only preventions of harm that can justify coercion. Nevertheless, when I first formulate the principles I consider I shall formulate them such that they allow both ex-ante and ex-post readings. 9 (vi) What the Harm Principle provides is a necessary, not a suffi- cient condition for state intervention. If a person poses no risk of harm to others, the state is not justified in interfering, but even where she does pose such a risk, it does not follow from the Harm Principle that the state is justified in coercing her.

(vii) The Harm Principle is normally taken to determine the condi-

tions under which the state is justified in coercing a person in order to prevent the very same person from harming others. Let us call versions

of the principle requiring the person from whom the threatened harm originates and the person that is coerced to be identical origin-centred. Some arguments for the Harm Principle require it to be origin-centred. Others, however, as I explain later, support an origin-neutral version. According to the latter, the state may coerce a person to prevent the harmful agency of others, or to prevent what we may call natural harms, i.e. harms caused by no one. A person might, perhaps, be forced to be, respectively, a soldier or a blood donor assisting haemophiliacs.

(viii) I shall assume that the Harm Principle applies to harms brought

about both by acts and omissions – i.e. harms done and allowed. 10 A person may do harm to another (e.g. by shooting him). Alternatively, she might merely allow another to be harmed (e.g. by failing to pre-

9 To illustrate this point, note that (1) refers to the “harm (risk)” the state may prevent or reduce. An ex-ante version results if we delete ‘harm’ and an ex-post version results if we delete ‘risk’. 10 See e.g., Feinberg (1984), pp. 171–181.

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vent him from drowning). Presumably the Harm Principle should apply to both of these forms of involvement in another’s harm. At least, we should consider whether the state is entitled to impose a penalty on, say, a person who refuses to help the victim of a traffic accident when he could save the victim’s life at very little cost to himself. Coercion, like harming, can be achieved both by action and inac- tion – through doing and allowing. Suppose, for instance, that a gov- ernment decides that hospitals should not treat patients who refuse to be organ donors. While the hospital, as an agent of the state, does not do anything to these patients (rather, it leaves them untreated), the patients are clearly coerced. The Harm Principle should address such cases of coercion through inaction. (ix) There is an issue of whether the Harm Principle is absolute, as Mill would have it, 11 or whether it admits of exceptions in the sense that, in extraordinary circumstances, it is permissible for the state to intervene in the life of an individual against her will although it does not prevent harm to others, but realizes some other goal – say, pre- vents the coerced individual from seriously harming herself. While the Harm Principle is usually considered to be incompatible with state paternalism, perhaps there are cases in which the harm a person is about to inflict on herself is so severe that coercion is warranted and should not be ruled out by the principle. It is clear, at any rate, that anti-paternalistic implications of the Harm Principle can be mitigated if the principle is construed in a non-absolute manner. (To see this, consider a threshold such that paternalistic intervention is permissi- ble where the harm such an intervention would prevent a person from inflicting on himself exceeds a certain level). (x) There is also an issue of which potential victims of harm the Harm Principle applies to. Clearly, on a standard reading of the prin- ciple, a person may be coerced to prevent harm to other human be- ings. But should the Harm Principle apply to activities which inflict harm on animals? Presumably, most of us believe that it should, at least in some cases. Furthermore, we also need to know whether a person may be coerced to prevent harm to foetuses and to possible people. These, however, are notoriously difficult questions and beyond the scope of the present paper. 12

11 Mill (1962), p. 135. 12 Michael Bayles argues that the Harm Principle does not apply to possible people be- cause (a) they are unidentifiable, and (b) they cannot be harmed; see Bayles (1975–76). I try to refute both (a) and (b) in Holtug (2001).

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(xi) The Harm Principle is sometimes associated with the doctrine of state neutrality. According to this doctrine the state should be neutral between different conceptions of the good. Some proponents of the Harm Principle take it to imply that the state should not enforce any particular morality, 13 but others reject the doctrine of state neutrality, 14 and so we cannot merely assume that there is an intimate relation between the two. (xii) Some confusion has resulted from a failure to distinguish be- tween two different versions of the Harm Principle. According to Mill (as we have seen), there is only one purpose for which the state may intervene in the life of an individual against his will, namely to pre- vent harm to others. This expression makes it sound as though the state may intervene only if it actually has the particular purpose (or goal) of so preventing harm. It sounds, in other words, as though it is a necessary condition for coercion that the state’s justification for inter- vening is of a particular nature:

(2) The state may intervene in the life of an individual against his will only if it has as its actual justification that by so intervening it will prevent or reduce harm (risk) to others.

Let us call this the justification-based version of the Harm Principle. 15 It raises several problems. How do we identify the state’s justification for coercion in particular cases? If, for instance, parliament passes a law that makes cloning illegal, members of parliament may have voted for the law for all sorts of different reasons. If this were so, establish- ing that the state had (or had not) violated the Harm Principle would be very difficult, even in theory. Another problem is what to say about cases in which coercion is not justified but the state coerces and has as its justification a reason that is compatible with (2). Consider, for example, a case in which a group of innocent people are arrested because the police believe them to be terrorists, but where the police believe this only because they have not properly investigated the matter. While such conduct is not ruled out by (2), it is presumably something proponents of the Harm

13 See e.g., Hart (1963), p. 5, and Charlesworth (1993), p. 45. 14 Raz (1986), part II. 15 Roger Crisp seems to ascribe such a version to Mill; see Crisp (1997), p. 176.

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Principle will want the principle to rule out. In fact, it is a paradigm case of state violation of individual liberty. 16 This suggests that the Harm Principle does not require us to ask what justification for coercion the state has actually offered, but whether coercion is justified. Coercion is justified in this sense, of course, only if it will prevent harm (or reduce the risk) to others. This is what is claimed in (1) above. What matters on this second interpretation is simply the consequences – or the expected consequences – of acts of coercion. Therefore, let us call it the outcome-based version of the Harm Principle. 17 While it seems to me that the outcome-based version of the Harm Principle is superior to the justification-based version, the former does raise some problems. 18 The most important (and one shared by the jus- tification-based version) is that the outcome-based version may seem to place insufficient restrictions on state activity. This brings me to my final comment on how the Harm Principle needs to be clarified. Finally, then, there is the issue of what sorts of effects qualify as ‘harm’. As Mill’s critics have repeatedly pointed out, it is very seldom that an individual’s behaviour does not affect others. 19 And if all effects that are negative for some person qualify as harm, then it

16 A methodological point is in order here. There are two types of counterexample to (specific versions of) the Harm Principle. The first type consists in showing that the prin- ciple is compatible with coercion when it should in fact rule it out. The second type consists in showing that the Harm Principle rules out coercion when it should allow it. Of these, the latter does more damage. This is because the first type of counterexample only shows that the Harm Principle does not rule out coercion, which, of course, is compatible with the existence of other liberty principles that do. The proponent of the Harm Principle may com- bine different such principles. The case of the innocent people arrested is of the former type, and so the proponent of the justification-based version may argue that even if this version does not rule out coer- cion, coercion may be ruled out nevertheless. However, my guess is that typical proponents of the Harm Principle will want this principle to rule out coercion here; after all, by coercing these innocent people, the state neither prevents harm nor, in what seems to be the relevant sense, reduces risk. 17 Joseph Raz both seems to ascribe an outcome-based Harm Principle to Mill and to endorse such a version himself; see Raz (1986), pp. 412–413. 18 Of course, (1) and (2) may be combined so that it is claimed that coercion is acceptable only if (a) the state has as its justification the fact that harm (risk) will be prevented (re- duced), and (b) harm (risk) will in fact be prevented (reduced), or alternatively, that the state is justified in believing (b). However, since the problems I shall raise apply as readily to this combined view as to (1), I shall assume a (pure) outcome-based version of the Harm Prin- ciple in the following. 19 Rees (1991), p. 171.

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seems that the Harm Principle offers at best inadequate protection of individual liberty. For instance, if the fact that some people find ho- mosexuality offensive means that they are harmed, in the relevant sense, then the principle would not favour the legalisation of such acts, as it is commonly believed to do by its proponents. Likewise, if the fact that some people are disturbed by IVF were to count as a harm, then the principle could not be appealed to by apologists for this tech- nology. Clearly, then, not all negative effects on people are to be con- sidered harms in the relevant sense. The problem of defining harm seems to me to be the most impor- tant element in defining the scope of the Harm Principle, i.e. in deter- mining the range of issues over which the Harm Principle can be legitimately invoked in order to defend individual liberty. I shall there- fore call it ‘the problem of scope’. It is this problem that I shall be concerned with in the remaining part of the article. I shall assume that it should be solved in such a way that the Harm Principle’s implica- tions are at least roughly compatible with the sort of judgements lib- erals have traditionally used this principle to justify. Any ‘solution’ to the scope problem that does not satisfy this requirement will not cap- ture the purpose and spirit of the principle.

3. THEORIES OF WELFARE

It would seem that in order for a person to be harmed by some event, her life must go worse because of it. That is, her welfare must be re- duced. We therefore need a theory of welfare in order to interpret the Harm Principle; and perhaps by adopting a particular theory, we will solve the problem of scope. Consider the main theories of welfare, which I take to be hedon- ism, desire-satisfaction theories, and objective list theories. 20 According to hedonism, positive welfare consists in pleasurable mental states and negative welfare in unpleasant such states. If we were to say, then, that harm consists in a lowering in the quality of a person’s mental states, the Harm Principle would not restrict coercive activity enough. After all, since a person who is offended is normally put in an unpleas- ant mental state, this principle could not be invoked in favour of the decriminalisation of homosexuality and the legalisation of IVF.

20 For further presentation and discussion of these theories, see Parfit (1984), appendix I, Griffin (1986), and Sumner (1996).

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Nor will desire-satisfaction theories of welfare solve the problem of scope. Just as some people may feel unease at the thought of oth- ers engaging in homosexual acts, so they may desire that others do not so engage. And if a person is harmed when his desires are frus- trated, then again, the Harm Principle cannot be invoked to deter those who would criminalise homosexuality: clearly, some people would prefer it if no one practised this sexuality. It may be suggested that only self-regarding desires contribute to one’s welfare, and that a person’s desire that people refrain from ho- mosexual acts is other-regarding. It may be said that the homophobe is therefore not harmed when her desire that others practice only het- erosexual sex is frustrated. However, while she may not be harmed

by the frustration of this particular desire, she may very well be harmed by the frustration of another, namely the desire not to be in an unpleas- ant mental state. If so, she will be harmed after all. Finally, consider an objective list theory. Presumably, whatever else such a list may include, it will incorporate pleasurable mental states on the positive side and unpleasant ones on the negative side. 21 Therefore,

if harm is to consist in a reduction in welfare, thus defined, the Harm

Principle will again fail to protect individual liberty sufficiently. After all, on this approach the unease a person may feel knowing that oth-

ers engage in homosexual acts amounts to a harm. 22 In conclusion, it seems that we cannot solve the problem of scope merely by adopting

a particular theory of welfare.

4. QUANTITIES OF WELFARE

Perhaps the problem with the previous attempts to solve the problem of scope is that it leaves the Harm Principle sensitive to reductions in

the quality of a person’s life, however slight these reductions are. Thus,

it may be suggested that even if someone feels unease knowing that

other people engage in homosexual acts, or uncomfortably aware that some people use ‘artificial’ means to have children, this hardly has a

21 See e.g., Griffin (1986), p. 67. 22 Of course, an objective list theory need not count positive and negative mental states without discrimination. Thus, it may be claimed that negative mental states that result from the frustration of immoral desires – e.g. the desire that people do not engage in homosexual acts – do not make a person worse off. A moral component is then intro- duced in the concept of harm. I shall consider the idea of moralizing this concept in greater detail in Sections 7–9.

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substantial impact on their welfare. So another solution to the prob- lem of scope might be to claim that the state may use coercion only if enough welfare is under threat. 23 In other words, the suggestion is that harm, in the sense referred to in the Harm Principle, involves a mini- mum quantity of welfare. However, any proposal as to how much welfare is required would seem rather arbitrary. While, perhaps, a feeling of unease is not enough to warrant coercion, whereas intense pain is, where exactly do we draw the line? Note that the problem here is not just that any limit would be arbitrary. Rather, the problem is that such an arbitrary line would have great significance. Suppose, for example, that if a reduction of 100 units of welfare could be prevented coercion would be acceptable whereas if only 99 such units were at stake it would not. How can the mere difference of one unit make a difference in kind such that war- ranted coercion suddenly emerges? The best answer to this problem, it seems to me, is to introduce a sort of sliding threshold, such that the quantity of welfare required varies proportionally with the severity of the coercion in question. Thus, we would have to distinguish between different sorts of coercion and how much they interfere with individual liberty. A prison sentence obviously restricts personal freedom more than a small fine. 24 While much more would have to be said about how to ‘pair’ coer- cion and welfare in this way, I shall not go into greater detail here. This is because, as it turns out, this approach cannot solve the prob- lem of scope. A central problem is that, if a given level of coercion is acceptable only if a certain quantity of welfare is at stake, then pre- sumably this latter quantity need not be restricted to a single person.

23 Some proponents of the Harm Principle seem to accept such a requirement. For in-

stance, Charlesworth holds that in order for the state to be justified in legally prohibiting surrogate motherhood, “it would be necessary to show that it involved obvious and direct

harm of a serious and large-scale kind to other people

emphasis); and Feinberg suggests that “bare minimal invasions of interest just above the threshold of harm are not the appropriate objects of legal coercion either and a plausible version of the harm principle must be qualified to exclude them” (Feinberg, 1984, p. 188). 24 Actually, assuming an ex-ante reading of the Harm Principle, what the sliding thresh- old will correlate with is severity of coercion and size of risk. This means that such a thresh- old may also solve another problem – a problem that I have so far ignored. The problem is that since there is always a chance that a person, any person, will harm others, the Harm Principle seems never to rule out coercion. However, assuming a version of the principle that includes a sliding threshold, the state may only use (a particular kind of) coercion if the reduction in risk it brings about is sufficiently great.

.” (Charlesworth, 1993, p. 86, my

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Suppose, for instance, that someone inflicts pain on another, but takes care to inflict only so much that his victim is just below the level where (a given level of) restrictive coercion would be warranted. Surely it would be implausible to claim that to prevent him from slightly in- creasing the amount of pain suffered by his victim, he may be coerced, whereas to prevent him from causing each of 100 others to suffer pain of the same intensity he may not. Rather, it must be the cumulative effect on others that matters. 25 This, however, seems to imply that it may be acceptable to coerce a person in order to prevent him from causing a very small reduc- tion in the welfare of a sufficiently large number of people. Thus this Harm Principle would not rule out a ban on Salman Rushdie’s The Satanic Verses, because such a ban would protect a huge number of Muslims from suffering small individual reductions which amount to a large overall quantity of harm. But such a ban, of course, is exactly the sort of thing that the Harm Principle is supposed to rule out. 26 Thus, it seems that we must look elsewhere for a solution to the problem of scope.

25 This is not to say that the cumulative effect equals the sum of individual harms. Differ- ent kinds of functions that give weight to individual harms are possible. 26 It may be objected that even if some number of smaller individual reductions in welfare are equivalent to a single slightly greater individual reduction, as in the case of the 100 people in pain, it does not follow that some number of very small reductions (such as those suffered by Muslims) equal this same level of harm (as I said, different functions are pos- sible). In other words, perhaps there is discontinuity in the sense that reductions at (much) lower levels cannot add up to reductions at (much) higher levels. And if so, the Harm Prin- ciple discussed here may rule out a ban on The Satanic Verses after all. However, consider again the case of the slightly greater pain to one and the slightly smaller pain to 100 others. As I argued, it would be implausible to claim that the pain suffered by 100 does not amount to as much cumulative harm as that suffered by one (as far as the Harm Principle is concerned). Now compare the pain suffered by 100 to a slightly smaller pain suffered by, say, 200 others. Again, it would be implausible to claim that the pain suf- fered by the greater number of people does not amount to as much cumulative harm as that suffered by the smaller number. And obviously, this procedure of comparing slightly smaller pains suffered by a significantly greater number of people can be continued. In conclusion, there must be some number of people suffering only small reductions in welfare such that coercion (at some given level) is not ruled out by the Harm Principle. (For a criticism of the sort of transitivity assumed in this argument, however, see Temkin, 1996).

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5. VARIETIES OF HARM

There is more trouble to come for the two attempts to solve the prob- lem of scope considered thus far. These attempts both rely on a notion of ‘reduction in welfare’. However, the proponent of the Harm Princi- ple may use different such notions. Consider the following scheme:

 

Positive welfare

Negative welfare

Diminution

Loss of positive welfare

Gain in negative welfare

Increase

Gain in positive welfare Loss

of negative welfare

This scheme brings out two distinct ways in which we might try to

make the Harm Principle more protective of individual liberty and so solve the problem of scope. We might claim that the state may coerce an individual only if it thereby (a) prevents a gain in negative wel- fare, or (b) prevents a diminution of welfare. What (a) amounts to, of course, is the claim that harm, in the sense relevant for the Harm Principle, necessarily involves a gain in nega- tive welfare. And indeed, negative welfare, such as pain, seems to be

a paradigmatic case of what we ordinarily consider harm. However,

clearly a person can also be harmed by an event that causes, not an increase in negative welfare, but a loss of positive welfare. If some- one were to deliberately infect a person with a disease which – as a result, say, of a mild form of mental retardation – causes this person to experience less positive welfare, this would be an instance of harm- ing and something that the state would be justified in using coercion to prevent. So a proponent of the Harm Principle will want to include

both the addition of negative and the loss of positive welfare in her definition of harm. Thus far, when I have spoken of reductions, gains and losses in wel- fare, I have merely assumed an intuitive understanding of these con- cepts. However, we now need to consider more carefully what the relevant baseline is, i.e. what these reductions, gains and losses are variations from. It is fine to say that an event harms a person if it causes her to have more negative or less positive welfare, but more or less than what? One suggestion is that the baseline is the person’s situa- tion prior to the event. However, this suggestion will not do. Suppose

a

person’s pain would have gone away, had I not acted to ensure that

it

continues. Clearly, I harm him, despite the fact that I leave him in

no more pain than he was prior to my intervention.

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Of course, we may try to revise this baseline in order to accommo- date such cases. The baseline could, for instance, be claimed to con- sist not in a person’s situation immediately prior to the relevant event, but rather at some ‘normal’ prior moment. 27 Thus, I harm a person by continuing his pains because I render him worse off than he was when ‘normal’, prior to the onset of these pains. However, this baseline will not do either. Perhaps he has always been in pain such that there is no prior condition of his that I render him worse off relative to. Nor, for that matter, will it do to let the baseline consist in a condition that is (in some sense) normal for mankind: I may harm a person by remov- ing some of his welfare, even if he is still better off than the norm. A better suggestion is that the baseline should be set counterfac- tually, i.e. with reference to a person’s situation, had the putatively harmful event not taken place. According to what we may call the counterfactual baseline, an event harms an individual if and only if it renders her worse off than she would otherwise have been. So, in the example considered above, I harm a person when I act to ensure that his pain continues, because, had I not so acted, his pain would have gone away. Assuming this baseline, then, there are two distinct ways in which an event can cause harm to a person: by causing that person to have more negative or less positive welfare than she would have had in the absence of the event. Of course, where an increase in negative welfare is accompanied by a larger increase in positive wel- fare, or a reduction in positive welfare is offset by a larger reduction in negative welfare, no harm is done all things considered. It is where there are no such compensating effects that harming takes place. I can now address the other suggestion as to how the Harm Princi- ple can become more protective of liberty. According to this sugges- tion, the state may coerce a person in order to prevent a diminution of other’s welfare, but not in order to ensure a similar increase. How- ever, it is an implication of the counterfactual baseline that causing a gain in positive welfare can be described as preventing a loss of such welfare (and vice versa), and that causing a loss of negative welfare can be described as preventing a gain in it (and vice versa). It follows that all increases can be described as preventions of diminutions. Hence, as it turns out, this second suggestion fails to protect liberty much.

27 Feinberg seems to endorse such a baseline for cases in which a person performs an act (or omission) which impacts on another and which he has a duty not to perform; see Feinberg (1984), pp. 142–143.

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To see this, consider the following case. By giving a person an en- joyable cruise to the Caribbean, I can bring about a gain in her posi- tive welfare: she will have more positive welfare than she otherwise would have had. It is also true that, by giving her the holiday, I pre- vent a situation in which she has less positive welfare than she other- wise would have had (i.e. less than she will have if I send her on a

cruise). So I prevent a loss of positive welfare. A clear case of bring- ing about an increase, then, turns out to also be a case of preventing

a diminution. Therefore, the claim that the state may only use coercion to pre- vent diminutions of welfare does not provide a solution to the prob- lem of scope, at least not if it is combined with the counterfactual

baseline. As may be expected, this claim is compatible with state coer- cion to prevent such things as homosexual and religious practices. More surprisingly, it is also compatible with state coercion (e.g. taxation) to provide free exotic holidays for citizens. Presumably, for most propo- nents of the Harm Principle the unavailability of expensive cruises is not harmful in the relevant sense and it may even be argued that the Harm Principle should rule out coercion to secure cruises. This point, of course, does not presuppose hostility to taxation as such. One can accept it and agree that taxes should be levied to pay for, say, public healthcare and state-funded education. Now, the cruise case may seem to jeopardize an assumption that I made earlier, namely, that the Harm Principle applies to harms that result from both doings and allowings. Suppose that the state may only use coercion to prevent the doing of harm. Then, since I merely allow harm (or a diminution of welfare) when I refuse to pay for a stranger’s cruise, the state may not tax me to prevent this harm. However, for many liberals such a restriction of the Harm Principle

is unattractive, for there seem to be cases in which, intuitively, the state

should coerce individuals in order to prevent them from allowing harm (as I pointed out in Section 2). For instance, it seems that the state may coerce people into helping victims of traffic accidents when they can do so at little cost to themselves. Likewise, it seems that the state may coerce a doctor who for no good reason refuses to give a patient in a life-threatening situation antibiotics. And it seems that the state may coerce parents who refuse to feed their children. Furthermore, the intuition that the state may not coerce me to se- cure the cruise may not hinge on a distinction between doing and al- lowing. It may have more to do with the thought that the money is mine and that if others are to have a claim on it, they shall have to

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come up with a more important ‘need’ than a desire to spend time on

a cruise. I shall address such views about needs and claims in later

Sections. 28 Let me briefly consider another suggestion as to how the proponent of the Harm Principle may set the baseline for harm. This suggestion incorporates the lesson learned from the counterfactual baseline, namely

that harm should be assessed with reference to a person’s situation, had the putatively harmful event not taken place, but does not imply that I harm a person when I refuse to pay for his exotic holiday. 29 Before

I describe this baseline, consider the following case that brings out

some of the intuitions it is thought to capture. A mother sends her daughter a ticket to a cruise in the Caribbean, but I manage to inter- cept and destroy the ticket before it reaches her. Intuitively, it may seem that in this case, unlike in the original cruise case, I harm the potential beneficiary. To explain the intuitive difference between these two cases, we may appeal to the fact that in the original cruise case, I am the source of the potential benefit. After all, is me who refuses to pay for the stranger’s

28 An anonymous referee has made a suggestion that, if I understand it correctly, is simi- lar to the claim that the Harm Principle applies only to the doing of harm. According to this suggestion, the baseline for assessing harm to an individual is set (counterfactually) as this individual’s situation, had there been no intervention. If, then, I ensure that a person’s pain continues I harm her, since the pain would have gone away had I not intervened. If, on the other hand, I refuse to pay for a stranger’s holiday, I do not harm her, since she would not have been better off, had I done nothing. In order for this suggestion to work, presumably interventions must be doings and non- interventions must be allowings. To see this, compare again the case in which I ensure that a person’s pain continues and the case in which I refuse to pay for a stranger’s holiday. In both cases I render an individual worse off than she otherwise would have been. In order for the suggestion under consideration to work, then, we must claim that it is only in the former case that I render an individual worse off than if I had not intervened. And presum- ably this must be because, in the former case, the alternative to my actual behaviour is that I allow a person’s pain to go away, whereas in the latter case, the alternative to my actual behaviour is that I do something, namely buy the tickets and give to the stranger. However, this means that the suggested baseline faces problems similar to those en- countered by the suggestion that the Harm Principle applies only to the doing of harm. Consider, for instance, the case in which a doctor for no good reason refuses to give a patient in a life-threatening situation antibiotics. The alternative to this doctor’s behaviour is that he gives the patient antibiotics. But since this would be an instance of doing, it is not to be considered a non-intervention. Therefore, by refusing to administer the antibiotics, the doctor does not render the patient worse off than if he had not intervened, and so he has not harmed her. Again, the Harm Principle implausibly rules out coercion. 29 This suggestion is also due to an anonymous referee.

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holiday. In the new cruise case, on the other hand, the benefit has a different source. Here, the stranger’s mother has sent the tickets. This may suggest that the baseline should be set counterfactually with ref-

erence to the victim’s situation with respect to welfare that has a source other than the individual who (allegedly) harms her. We may then claim that, while I deprive the stranger of welfare when I refuse to pay for her cruise, I would have been the source of this welfare and therefore

I do not harm her. More generally, harm is to be characterised as a

diminution of welfare that has a source other than the individual who

performs the harmful conduct, where ‘diminution’ is cashed out coun- terfactually. Clearly, much more would have to be said about how ‘sources of

welfare’ are to be picked out, but since I believe that the suggestion under consideration has other less complicated shortcomings, I need not go into that here. First, the suggested baseline is too wide in the sense that too much is characterised as harm. Consider the following case. The stranger’s mother is about to pay for her daughter’s cruise, but I persuade the mother to give the money to Oxfam instead. Here,

it seems pretty evident that I am not (in the relevant sense) the source

of the (potential) welfare and since I render the stranger worse off than she otherwise would be, the suggested baseline implies that I harm

her. 30 But, again, this does not seem to be the sort of harm the propo- nent of the Harm Principle is after and it may even seem that this prin- ciple should rule out coercion to prevent such ‘harm’. Second, and more importantly, there is also a sense in which the suggested baseline is too narrow, since it implies that some things that should be characterised as harm are not. Consider again the person who refuses to help the victim of a traffic accident, the doctor who for no good reason refuses to give a patient antibiotics, or the parents who let their child starve. Since these individuals who refuse to help are also the sources of the (potential) welfare, assuming the baseline un- der consideration, they do no harm. Therefore, the Harm Principle inappropriately rules out coercion.

30 It may be objected that while I persuade the mother not to pay for the cruise, it is she who carries out the act (or omission) of not paying, and so I cannot be said to harm the stranger. However, surely the Harm Principle should allow for the coercion of individuals who do nothing more than affect the behaviour of others with detrimental effects on third parties. Consider a leader of a racist organization who encourages members to kill blacks. In order for the Harm Principle to be compatible with the coercion of this racist leader, his conduct must be described as harmful, even if it only leads to harm through the free agency of others.

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In conclusion, none of the baselines considered gives rise to a plau-

sible version of the Harm Principle. I should emphasize that this does not mean that none of them gives rise to a plausible conception of harm.

A conception of harm may be plausible in its own right, even if it does not render the Harm Principle sufficiently protective of liberty.

6. QUALITIES OF WELFARE

The following proposal may seem to avoid the problems we have en- countered. Suppose we were to distinguish between, not quantities, but qualities of welfare. 31 How would this help us? Consider first the need to explain the difference between taxing a person to provide medical services and to provide cruises. It may be suggested that, while both reduce welfare, disease cripples a person and has a significance for him that is quite different from not being able to go on an expen- sive holiday. Now consider the problem that many slight decreases in welfare, such as when a great number of Muslims are offended by The Satanic Verses, add up to a large total quantity of harm. If we appro- priately distinguish between different qualities in welfare, perhaps we can render such decreases irrelevant to the Harm Principle.

It seems to me that in order for this proposal to work, we need to be

able to give a general account of the sort of qualities that constitute harm. If we cannot provide such an account, and merely produce a list of exemplars, we will be left wondering why it is that these quali- ties justify coercion whereas other reductions in welfare do not. Now, while I shall consider only one such account, I believe that my criti-

cism applies to many, if not all, others. When formulating his version of the Harm Principle, Feinberg sug- gests that an event harms a person only if it sets back her interests. 32 Her interests are constituted by what we may call her basic desires or goals, where basic desires are, roughly, intrinsic, general and such as to ex- plain and give meaning to more particular desires and activities. For instance, the desire to become a novelist or to raise a family is a basic desire, whereas the desire to go fishing or to read a book is not.

A harmful event, then, must somehow frustrate a person’s basic de-

sires, typically by rendering unavailable the means required to pur-

31 Of course, the founder of the Harm Principle famously made such a distinction be- tween higher and lower pleasures: Mill (1962), p. 258. 32 Feinberg (1984), Chapter 2.

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sue these goals, e.g. health, emotional stability or financial status. Not all reductions in welfare, then, amount to harms. Thus a person may be in pain but not incapacitated in the pursuit of her basic goals (al- though, presumably, if the pain becomes severe enough, she will be so incapacitated). More to the point, diseases will typically harm peo- ple, whereas the inability to go on an expensive cruise will not. There- fore, there is a case for taxing citizens to pay for public healthcare, but no such case vis-à-vis exotic cruises. Furthermore, it may be ar- gued that being offended does not harm people, and so there is no case for banning blasphemous books, or criminalizing homosexual- ity or outlawing IVF. Nevertheless, we have yet to see a plausible solution to the prob- lem of scope. First, it seems clear that the state may coerce in order to prevent some reductions in welfare that do not set back interests. Sup- pose, for instance, that a bored housewife enjoys using a slingshot to cast stones at the legs of people passing by in the street, thereby caus- ing significant but brief episodes of pain. Clearly, although she does not interfere with their pursuit of basic goals (after all, the pain is brief), the state would be justified in preventing her from indulging in her particular idea of fun. 33 Secondly, it seems that in some cases offence may actually involve a setback of interests. Consider again the Muslims who were enraged by the publication of The Satanic Verses because they believed it to be insulting to their very way of life. It does not seem farfetched to describe this book as a threat to some of their basic goals – e.g. to the goal of furthering their religious beliefs in society. In fact, anyone who publicly questions these beliefs can be said to threaten that goal by

33 The proponent of the Harm Principle could modify her principle in the following man- ner: what may warrant coercion is a token act (or omission) of a sufficiently general type, instances of which typically induce harm. Thus, since casting stones at people typically sets back these people’s interests, the bored housewife may be coerced. There are several prob- lems with this proposal, the most important being that it is difficult to see the relevance of the fact that instances of a particular type of act will typically set back interests (or pose a risk to them) if, in a given case, it does not set them back or pose such a risk. Of course, the proposal considered here may make the Harm Principle more practical in the sense that it is easier to implement in an actual policy, but that is a different matter. Note, incidentally, that Feinberg may not be worried by examples such as this, because he holds other ‘liberty-limiting’ principles, besides the Harm Principle. Thus, he believes that while liberty may be limited in order to prevent harm, there are also other types of activity that may warrant coercion (e.g., coercion may sometimes be used to prevent (mere) offence; see Feinberg, 1985). However, here he parts company with the Harm Principle in its usual formulation, according to which coercion may be used only to prevent harm.

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potentially removing support from them. But perhaps books such as The Satanic Verses are especially ‘potent’; as Brian Barry remarks: “few people have ever been converted to or from a religion by a process of ‘examining beliefs critically’. Religious fanaticism is whipped up by non-rational means, and the only way in which it is ever likely to be counteracted is by making people ashamed of it”. 34 The point is that, once again, the Harm Principle fails to rule out a ban where it should clearly do so. Of course, it may be suggested that interests relate only to self-re- garding basic desires, and that a desire that one’s religious beliefs thrive in society does not satisfy this requirement. However, this restriction would rule out too much. Suppose a person wants to be elected for parliament only because he wants certain environmental issues to be furthered (his basic goal is then not self-regarding). Nevertheless, the state would presumably be justified in using coercion to prevent oth- ers from spreading lies about this would-be politician and thus dam- aging his career. But the judgement that the state would be justified in doing so is incompatible with a version of the Harm Principle that construes harm in terms of self-regarding basic desires. This is because his only (relevant) intrinsic desire – that the environment is protected – is not self-regarding, and his only (relevant) self-regarding desire – that his career is furthered - is not intrinsic. Therefore, none of his intrinsic self-regarding basic desires are frustrated. Perhaps this is the best place to introduce some other replies the pro- ponent of the Harm Principle may make to the charge that this princi- ple does not seem to rule out, say, a ban on The Satanic Verses. Thus, it may be suggested that (a) the ‘real’ cause of the harm suffered by Mus- lims is not the publication of the book but the reaction it got from Mus- lim leaders, or (b) the Harm Principle should include some way of balancing interests, such that while The Satanic Verses does harm some Muslims, this harm is outweighed by the severe restriction on Rushdie’s liberty caused by a ban and possibly the interests of potential readers. 35 What (a) amounts to, then, is the suggestion that it is not Rushdie but Muslim leaders who are responsible for the harm suffered by many Muslims. Thus, it may be argued that since Rushdie is not responsi- ble for the harm, a plausible version of the Harm Principle rules out that his liberty is to be interfered with. Such a version would both have

34 Barry (2001), p. 31. 35 For the suggestion that the Harm Principle should include a principle for weighing liberty-interests and other interests, see Feinberg (1984), Chapter 5. This suggestion is also involved in the idea of a sliding threshold; see Section 4.

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to be origin-centred (since it is assumed that Rushdie may only be coerced if the threatened harm originates in him), and involve a mor- alized concept of harm (since it is assumed that not only must the harm originate in him, it must also be of a kind for which he is morally re- sponsible). Now, as I shall argue in the following Sections, a version of the Harm Principle that relies on either of these features faces fur- ther difficult problems. Also, whatever we may want to say about the actual responsibility of Rushdie and Muslim leaders, respectively, surely we can conceive of variations on the actual case in which the threat to the basic goals of many Muslims is not as easily removed from Rushdie. And this is bad news for the proponent of the Harm Principle who wants to sup- port a strong principle of freedom of speech. According to (b), the Harm Principle should incorporate a mecha- nism for weighing the harm involved in restricting an individual’s lib- erty, the harm prevented by such a restriction, and possibly the interests of third parties as well. It may then be suggested that the harm to Muslims is outweighed by the harm of coercion and the interests of readers. How so? First, it may be suggested that the ‘harm’ suffered by Muslims is merely due to the ‘bare knowledge’ that others are read- ing The Satanic Verses and so is not a great harm. 36 Second, it may be suggested that interfering with liberty is a very serious harm indeed, not easily outweighed by other types of harms. And finally, it may be suggested that a great many people would be harmed by not being able to read The Satanic Verses. However, I suspect that things are much more complicated than this. While some of the harm suffered by Muslims may be due to ‘bare knowledge’, surely some of it is due to being directly confronted with The Satanic Verses in bookstores and libraries, and perhaps even the witnessing of people buying the book and people reading it in public places. Of course, it may be replied that people who are likely to take offence can try to avoid being put in such situations, but this reply should not come easy to a liberal who is, after all, in the business of securing options for people.

36 For discussion of the ‘bare knowledge problem’, see Feinberg (1985), pp. 60–71. Feinberg, it should be noted, would presumably not consider The Satanic Verses harmful in the sense relevant for the Harm Principle since, according to him, harm involves wrong- ing someone and arguably Rushdie wrongs no-one by having his book published. Never- theless, the suggestion I am considering here is simply that harm consists in a set back of interests (specified in terms of basic desires). I turn to the idea that harm includes a moral component in the next Section.

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Furthermore, on the suggestion that harm consists in the frustration of basic desires, it seems that the harm to some Muslims may be great, namely if their religious beliefs and desires are quite central in their total pattern of concerns. In fact, on this suggestion, their interests may be much stronger than the interests of potential readers of The Satanic Verses, since the interests of potential readers are not likely to be based on desires that are as fundamental for their lives. Also, while coercion may be a great harm to a person, it would be dangerous for the liberal to consider it a harm it is very difficult to outweigh, since she is likely to believe that there are many cases in which coercion is justified. Now, the point here is not that a plausible mechanism for weighing interests will speak in favour of banning The Satanic Verses (in fact, I rather doubt it would), but rather that if the liberal justifies her oppo- sition to banning it on such a mechanism, her opposition is far less principled than we were first led to believe by the proponent of the Harm Principle. Rather than simply point to out that such a book harms no one and so should not be banned, she will need to dive into the murky waters of comparing conflicting interests and their strengths. And while we may thus conclude that a version of the Harm Principle that includes a mechanism for weighing conflicting interests can be invoked to justify freedom of speech, this justification will not differ in principle from that provided by other principles that tell us how to weight interests, such as act-utilitarianism. The core idea of the Harm Principle – the idea that was supposed to justify that Rushdie should not be coerced, namely that coercion cannot be justified unless harm is prevented – contributes with nothing.

7. A MORALIZED CONCEPT OF HARM

The attempts to solve the problem of scope considered thus far have made use of prudential concepts of harm, i.e. of concepts which ex- plain why certain events are bad (or sufficiently bad, or bad in some particular way) in terms of welfare. However, perhaps this is why these attempts failed. Perhaps harm should be construed, not in prudential, or not entirely in prudential terms, but (also) in moral terms. 37 In fact,

37 It is (now) common to interpret Mill as introducing a moral component in his concept of harm: see Honderich (1974), Williams (1976), Thomas (1983), Rees (1991), and Crisp (1997), Chapter 8. For criticism of some of these interpretations, see Brown (1978). For recent defences of versions of the Harm Principle that incorporate moral compo- nents in harm, see Feinberg (1984), especially Chapter 3, and Raz (1986), Chapter 15.

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several advantages emerge when we moralize the concept of harm. For one thing, we can then explain the view – held by many liber- als 38 – that just as the state should not coerce a person to prevent her from hurting or otherwise negatively affecting herself, so the state should not coerce a person to prevent her from negatively affecting others where they consent to it. For such behaviour, when consented to, does not involve wrongdoing. Furthermore, a moralized concept of harm allows us to explain why the offence to which homosexual acts, The Satanic Verses and medical practices such as IVF may give rise, does not amount to harm. After all, these acts, books and practices do not wrong anyone, or so it may be argued. So here the Harm Principle appropriately rules out coercion. Harm, given this moralized concept of harm, essentially involves wrongdoing. A version of the Harm Principle incorporating this re- quirement thus urges us to focus on the prevention of wrongdoing, rather than simply looking at the prevention of diminutions of wel- fare. Now, let us say that whenever a person behaves wrongly towards another in such a way as to harm her, he wrongs her. We can then formulate the following version of the Harm Principle:

(3) The state may intervene in the life of an individual against his will only if by doing so it will prevent (or reduce the probability of) others being wronged.

Not surprisingly, several interpretations of (3) are possible:

being wronged. Not surprisingly, several interpretations of (3) are possible: 3 8 See, e.g., Feinberg (1984),

38 See, e.g., Feinberg (1984), p. 35.

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Using a moralized concept of harm, we may opt either for an ori- gin-centred or an origin-neutral version of the Harm Principle. On the former, the coercion of a person can be justified only if it prevents

him from wronging others. On the latter, the state may also coerce a person if that coercion will prevent others from wronging people. (Thus perhaps a judge may convict an innocent person in order to prevent a mob from hanging several people they merely suspect of committing

a crime). Defenders of the origin-centred version may urge that the state should not coerce a person to prevent others from behaving wrong- fully, because this would be to treat an innocent person as a mere means. They may add that when the state coerces a person into not

wronging others himself, it does not violate his rights, because what

it prevents him from doing is something he has a duty not to do. De-

fenders of the origin-neutral version, on the other hand, may stress the fact that, by coercing an innocent person, the state will sometimes be able to prevent much harm (harm done, perhaps, to equally inno- cent people). 39 In order to uncover the implications of a moralized concept of harm for the Harm Principle, we now need to ask: in virtue of what do acts (or omissions) wrong other people? A common suggestion, in the lib- eral tradition, is that A wrongs B in virtue of violating B’s rights. The next question, then, is how to construe such rights. Deontological and consequentialist conceptions of rights are often distinguished. Deonto- logical rights involve constraints, such that a person may not violate one right to prevent the violation of, say, two similar rights. Con- sequentialist rights, on the other hand, permit such minimizing viola- tions and, more generally, violations that promote the good. Assuming, then, that we are dealing with consequentialist rights, the state will not

39 What if we hold a prudential concept of harm, should we then opt for an origin-neutral or an origin-centred version of the Harm Principle? Here is an argument to the effect that we should accept origin neutrality. On a prudential concept of harm, harmful behaviour does not depend upon whether wrongdoing is involved. Therefore, assuming such a concept, it is compatible with the Harm Principle to coerce a person to prevent his harmful behaviour, even if it does not involve wrongdoing. But if it is compatible with this principle to coerce such a morally ‘innocent’ person, and so to use this innocent person as a mere means to prevent harm, it would seem that we cannot object to origin neutrality that it involves treat- ing an innocent person as a mere means (to prevent the harmful agency of others). (David Lyons, if I understand him correctly, opts for an origin-neutral prudential version of the Harm Principle, albeit on the basis of different argument; see Lyons, 1997). There are, however, various ways of resisting this argument, although I cannot go into them here.

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be justified in coercing a person in order to prevent him from violat- ing the rights of another if by violating her rights he promotes the good. This is because, even if he violates her rights, he does not wrong her. 40 To assess a version of the Harm Principle incorporating a moral- ized concept of harm, however, we need to know more about harm than whether it involves deontological or consequentialist rights. In fact, in order to specify these rights more fully, we need a moral theory. And this theory needs to be compatible with the Harm Principle, in the resulting version, and preferably capable of justifying it. Let us therefore examine some attempts to provide justifications for the Harm Principle and the moral component in harm.

8. A UTILITARIAN JUSTIFICATION

For the justification of the Harm Principle, we may look to Mill. While some commentators take Mill to be more concerned with freedom than with utility in On Liberty, 41 this is a rather uncharitable reading since, in this essay, he explicitly confirms his commitment to utilitarianism. 42 However, how can the Harm Principle be justified on the basis of utili- tarianism when, apparently, they yield contradictory judgements (e.g. in cases in which the state maximizes utility by being paternalistic)? If we apply standard act-utilitarianism to the issue of state coercion, we get:

(4) The state may intervene in the life of an individual against his will only if by doing so it maximizes the sum of utility. 43

But clearly (4) is not an interesting version – in fact it is no version – of the Harm Principle. 44 So consider instead:

40 Strictly speaking, even if we opt for deontological rights, some right violations may not involve wrongdoing, because these rights may have thresholds. 41 See e.g., Berlin (1991), p. 137. 42 Thus, he writes: “It is proper to state that I forego any advantage which could be de- rived to my argument from the idea of abstract right, as a thing independent of utility. I regard utility as the ultimate appeal on all ethical questions”; Mill (1962), p. 136. 43 Here, I am assuming an ex-post version of utilitarianism, and so (4) comes out an ex- post principle itself. 44 Ted Honderich has suggested that Mill’s Harm Principle just is act-utilitarianism ap- plied to the issue of (state) intervention, but he takes this principle to have a form quite different from that of (4), which is rather puzzling: see Honderich (1974), p. 467.

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(5) The state may intervene in the life of an individual against his will only if by doing so it will prevent (or reduce the probability of) a violation of the rights others would have in an optimal decision procedure.

A few remarks are needed in order to clarify this principle. Suppose

we take act-utilitarianism to be our criterion of rightness, so that an

act is right if and only if it brings about an outcome in which there is

as large a sum of welfare as in any other available outcome. We should

then eschew utilitarianism as a decision-procedure, because utility is

best promoted in the long run by adopting a different procedure. 45 Now,

it is commonly believed that an optimific decision-procedure will in-

clude some appeal to rights – for example, to the right not to be killed, injured, deceived and robbed. Violating such rights, then, is what harm consists in on this particular utilitarian version of the Harm Principle. 46 Note that although (5) may look as if it includes a moralized con-

cept of harm, it does not. For such a concept implies that harm neces- sarily involves wrongdoing, whereas a violation of the sort of rights referred to in (5) need not be wrong. For, roughly speaking, these rights are selected on the basis of their overall tendency to promote utility if accepted, not on the basis that they promote utility on every separate occasion. Nevertheless, since in (5) harm does involve a moral con- cept – the concept of a right – let us say that it includes a quasi-mor- alized concept of harm. Presumably, (5) will issue in many of the results we want the Harm Principle to deliver. For instance, since, presumably, a person does not violate another’s rights merely by offending her, this version of Harm Principle will imply that the state may not coerce in order to prevent homosexual acts, IVF etc. It may even imply that the state can tax citizens in order to pay for a public healthcare system, if people have

a

right to healthcare. So far, so good. However, we need to be careful about the status we assign not only

to

the rights included in the Harm Principle, but also to the principle

itself. Clearly, this principle cannot be a criterion of rightness, because

there will be cases in which utility is not promoted by adhering to it. This version of the Harm Principle rules out state paternalism, for ex- ample, whereas act-utilitarianism implies that such paternalism may be warranted.

45 See e.g., Mill (1962), pp. 275–276, and Hare (1981), Chapter 3. 46 Crisp persuasively argues that this is in fact how Mill conceives of harm in On Liberty, see Crisp (1997), p. 181.

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Instead, we can think of the Harm Principle as part of a decision- procedure. On this approach the Harm Principle would be justified in so far as the state promotes utility more effectively by adhering to this principle than by making use of any other decision-procedure where coercion is concerned. Actually, it seems likely that a decision-proce- dure allowing the state to sometimes depart from the Harm Principle – e.g. to prevent a person from severely injuring himself – will better enable the state to promote utility than a procedure that includes only this principle. What we may perhaps justify on the basis of utilitarian- ism, then, is a sort of mixed decision-procedure. It does not seem entirely implausible, at least, that the Harm Principle plays such a role in morality.

9. AN AUTONOMY-BASED JUSTIFICATION

Before we settle for such a limited and hypothetical role for the Harm Principle, however, let us consider another possible justification. This alternative justification relies crucially on the value of personal au- tonomy. Thus, it may be argued that, since it is valuable for a person to live his life according to his own plans and values, other people, or the state, should not interfere with his life against his will, at least as long as he does not interfere with other people’s lives. Consider, along these lines, the following version of the Harm Prin- ciple, which, I take it, will seem attractive to at least some libertarians: 47

(6) The state may intervene in the life of an individual against his will only if by doing so it will prevent him from violating other people’s negative rights (or will reduce the probability of his violating them).

Suppose that I kill or injure another person, thus violating her nega- tive rights. By harming her in this way, I set aside her plans and val- ues, i.e. her autonomy. And since to set aside her autonomy is to treat her as a means only, I also wrong her. Now, since I am not permitted to violate other people’s negative rights, the state may prevent me from doing so, even if it involves treating me as a mere means. By doing this, it does not violate my negative rights, because I have, as it were, forfeited them (or some of them) by making it necessary for the state

47 Thus, the justification offered below for this principle partly relies on points made by Robert Nozick in Nozick (1974). This, however, is not to say that Nozick would have ac- cepted the principle.

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to coerce me to prevent me from violating the negative rights of oth- ers. However, the state may not coerce anyone other than me, since it is only me who has lost the right to noninterference. This is why (6) is an origin-centred principle. Note that since, in this and similar cases, the state does not violate my negative rights by coercing me, we need not construe these rights as consequentialist rights. That is, we are not forced to claim that the state’s violation of my negative right is counterbalanced by my viola- tion of someone else’s (similar) right in order to justify coercion. And indeed, some libertarians, at least, construe negative rights as de- ontological ones, arguing that violating a person’s negative rights to promote the good would amount to treating her as a means only. 48 By opting for deontological rights, libertarians also reduce the range of cases in which the state may justifiably coerce individuals. This is be- cause the state is not entitled to violate an individual’s rights merely to promote the good. However, there is also an area in which the state’s authority is extended. This is because, if negative rights are treated as having deontological status, the state may be justified in preventing a person from violating a negative right even in cases in which such a violation is optimific. Moreover, if we construe deontological rights as absolute, (6) will include a moralized concept of harm, since it will then follow that the state may coerce only to prevent wrongdoing. If, instead, we claim that these rights have a threshold, there will be cases in which the Harm Principle does not rule out coercion even when a person has not acted wrongly (by violating a negative right). But there is, of course, still a moral component in harm, since harm essentially involves doing, if not wrong, then bad. Note also that if negative rights are designed to protect autonomy, we can explain why state paternalism is impermissible. By coercing a person, even to protect his own best interests, the state sets aside his wishes, and so, it may be claimed, treats him as a means only. However, this version of the Harm Principle will seem unattractive to most liberals, because it implies that the minimal state is the only sort of state that can be justified. Furthermore, it may be argued that if we are so concerned about personal autonomy, we ought to further it by respecting not just negative rights, but positive rights. That is, since what is supposed to be of value is leading one’s life according to one’s own plans and values, we ought to provide the conditions required

48 Nozick (1974), pp. 30–33.

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by such a life when someone cannot provide them herself. Negative rights, then, are only half the picture. Along such lines as these, Joseph Raz has defended an alternative version of the Harm Principle. His point of departure is what he calls an ‘autonomy-based doctrine of freedom’, according to which positive freedom should be promoted, where positive freedom is to be under- stood as the capacity for autonomy. The furthering of positive freedom amounts to securing for people an adequate range of options and the mental conditions necessary for an autonomous life. 49 Therefore, the state should provide these options and conditions for citizens, at least where they cannot provide them for themselves. How does this square with the Harm Principle? According to Raz, one harms a person insofar as one diminishes his prospects, i.e. decreases his range of possibilities. 50 Therefore, the state may coerce an individual to prevent a reduction in a person’s prospects, but not otherwise. Since the sort of offence to which homosexuality or The Satanic Verses may give rise does not really diminish the offended person’s prospects, the state should not interfere to protect her. On the other hand, since dis- eases are likely to diminish people’s prospects, there is a case for tax- ing citizens to pay for a public healthcare system. Consider, then:

(7) The state may intervene in the life of an individual against his will only if by doing so it will prevent (or reduce the probability of) people’s prospects being diminished.

Since the suggested rationale for the Harm Principle is that it promotes autonomy, and since coercion does the opposite, coercion can only be justified if it prevents a reduction in people’s prospects and so promotes autonomy after all. This version of the principle differs in several im- portant respects from the libertarian version suggested in (6). First, as I have already pointed out, (7) is concerned not just with negative rights, but also with securing the conditions necessary for the exercise of auton- omy. Secondly, it assumes a consequentialist view of autonomy, given which one person’s autonomy may be reduced to secure more autonomy for others. 51 Thirdly, as a consequence of this, it is origin-neutral. And finally, because it is possible for a person to diminish her own prospects, there will sometimes a case for paternalistic coercion on (7).

49 Raz (1986), p. 425. 50 Raz (1986), p. 414. 51 Raz (1986), p. 419.

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Now, since coercion can be justified only if it prevents a reduction in people’s prospects, it is crucial to know what the relevant baseline is. Raz claims that “one harms another when one’s action makes the other person worse off than he was, or is entitled to be”. 52 Here, Raz takes the baseline to be a person’s situation prior to the performance of the act. I considered such a baseline in Section 5 and argued that we should reject it. However, Raz also offers another baseline, namely, that a person is harmed if he is rendered worse off than he is entitled to be. And this baseline meets my objection. I considered an example in which a person’s pain would have gone away, had I not acted to ensure that it continues. Raz may now point out that since, presum- ably, this person is entitled not to be in pain anymore, I do in fact harm him. Moreover, by introducing a moral component in his concept of harm Raz is also able to argue that the Harm Principle is compatible with redistribution through taxation: the state may redistribute to en- sure that worse off citizens attain the opportunities to which they are entitled. 53 However, it now seems that what is doing the work is a more or less full-blown theory of justice, rather than the Harm Principle. In or- der to apply the Harm Principle, we need to know what people are entitled to. And in order to know what people are entitled to, we need

a theory of justice. Suppose, for instance, that we want to know whether it would be permissible for the state to tax the rich to provide public healthcare for the poor. In order to apply the Harm Principle to this issue, we need to know whether the poor are entitled to healthcare. And in order to know this, we need to know various facts about the poor such as how their prospects would be affected by having access to it. But this is not enough. Presumably entitlements are to be understood as legiti- mate claims. And surely one’s legitimate claims depend not just on one’s own prospects but also on the prospects of others. After all, we can hardly say that an individual has a legitimate claim on something

if the (legitimate) claims of others rule out that he should have it. 54 What this means is that, in order to know whether the poor are en-

titled to healthcare, we need to know whether the reduction in pros-

52 Raz (1986), p. 414. 53 Raz (1986), p. 416. 54 This ‘legitimate claim’ reading of entitlements is also supported by Raz’ further char- acterization of harm: “one causes harm if one fails in one’s duty to a person” (Raz, 1986, p. 416). Whether one has a duty to a person depends in part on the duties one has to others.

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pects they suffer if they do not have access outweighs the reduction the rich will suffer if they are taxed. And in order to answer this ques- tion, we need a more or less full-blown theory of justice. To see this, consider the fact that the libertarian conception of autonomy outlined above implies that the poor are not entitled to public healthcare, whereas Raz’ consequentialist view on autonomy implies that decreases in the prospects of some (e.g. the rich) can be outweighed by increases in the prospects of others (e.g. the poor). Furthermore, the theory of justice we need to be able to apply the Harm Principle seems to answer our original question, namely whether the tax is permissible. If we know what the interests of different peo- ple are and how to weigh them against each other, what more could we need (at least as long as we confine ourselves to liberal theories of justice)? It seems doubtful that there is any work left for the Harm Principle to do. The point is not just that the issue of coercion must be settled by appeal to a more general moral theory. Since we are trying to derive the Harm Principle from such a theory, this is hardly surprising. Rather, the point is that the Harm Principle cannot even be applied in particu- lar cases without considerable knowledge of the theory of justice be- ing applied. So the Harm Principle is of no use without a theory of justice, but if we have this theory, it seems that we have no need for the Harm Principle. It would seem that the theory of justice will settle the issue of coercion all by itself. Another problem with (7) is that there seem to be some diminutions of welfare that do not diminish people’s prospects but warrant coer- cion nevertheless. Consider again the case of the bored housewife who casts stones at people passing by in the street, causing them to expe- rience a brief but significant pain. Since she causes only a rather brief pain, she does not diminish people’s prospects. 55 Nevertheless, it seems that the state would be justified in coercing her. And if the state is jus- tified in doing this, we should reject (7).

10. CONCLUSIONS

I have considered various ways in which one might specify what harm amounts to and thus various ways of solving the problem of scope.

55 As Raz stresses, “pain and offence, hurt and the like are harmful only when they do affect options or projects” (Raz, 1986, p. 413, my emphasis).

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However, whether we focus on welfare, quantities of welfare, nega- tive welfare, the diminutions of welfare, qualities of welfare or intro- duce a moral component in harm, we do not arrive at a plausible version of the Harm Principle. How, then, do we account for its popu- larity amongst liberals? Of course, as I have already mentioned, the Harm Principle ex- presses a concern for important liberal values such as liberty and tolerance. We can add to this the fact that, with a few exceptions, proponents of the Harm Principle have devoted insufficient atten- tion to the question of what harm is. Perhaps there has even been an, as it were, ‘top-down’ tendency to characterize something as a harm if there seemed to be a case for coercion rather than the other way round. It is no great surprise, then, that the Harm Principle has seemed intuitively plausible. There is another aspect of the Harm Principle that may account in part for its intuitive plausibility. When it is said that the only thing that can justify coercion is the prevention of harm, coercion is justified in terms of how individuals are affected, i.e. in person-affecting terms. And indeed, on the assumption that morality exclusively concerns how individuals are affected, this is the only way in which coercion can be justified. However, the Harm Principle protects individual liberty on too nar- row a basis. While, for example, the state should not ban The Satanic Verses, this is not because this book harms no one. The book presum- ably does some harm, but so would a ban on certain kinds of litera- ture; and what justifies a policy of noninterference on this issue is the fact that other concerns outweigh the harms to which The Satanic Verses and similar books give rise. Furthermore, the Harm Principle exploits only one dimension of affect in person-affecting morality – namely, harm – and this is in part why it is indefensible. If, instead, it were claimed that coercion could be justified not only to prevent what we intuitively think of as harm, but also to provide what we think of as benefits, much would be gained. In a sense, this is what Raz claims, but he does so by modifying the concept of harm, and indeed the Harm Principle, to a point where it becomes superfluous both as a criterion of rightness and as a decision-procedure. I should, however, repeat that I have not excluded the possibility that the Harm Principle may, in some shape or form, have a role to play in morality as part of a decision-procedure. But this will be rather limited compared with the role it is usually assigned by its proponents.

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ACKNOWLEDGEMENTS

I would like to thank Roger Crisp, Kasper Lippert-Rasmussen, Pe-

ter Sandøe and two anonymous referees for valuable comments on

a previous version of this article. Thanks are also due to the Danish Research Councils for financial support.

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Department of Philosophy University of Copenhagen Njalsgade 80 Copenhagen 2300, Denmark E-mail: nhol@hum.ku.dk

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