Chapter 4, part 2, of the author's Mill on Liberty, which Clarendon Press published in 1980. It has been included in the Victorian Web with the kind permission of the author and of the Clarendon Press, which retains copyright.
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ill's concept of harm has to be pieced together from some of his general remarks, and from the examples he gives of conduct harmful to others. Apart from the infliction of bodily injury, the sorts of harmful conduct that Mill has in mind seem to involve the infringement of certain rules. Thus he writes about the person who has "infringed the rules necessary for the protection of his fellow-creatures, individually or collectively" (On Liberty, p. 136). The rules in question do not just protect individuals directly, but also via the protection of society. In Utilitarianism Mill says that "a human being is capable of apprehending a community of interest between himself and the human society of which he forms a part, such that any conduct which threatens the security of the society generally, is threatening to his own." (p. 48.) There too he traces the "sentiment of justice" to the idea of a harm to society: "just persons resenting a hurt to society, though not otherwise a hurt to themselves, and not resenting a hurt to themselves, however painful unless it be of the kind which society has a common interest with them in the repression of" (p. 48). In On Liberty he regards many of our duties to others, which are enforceable by law or social disapprobation, as arising out of our having received the protection of society.
Though society is not founded on a contract, and though no good purpose is answered by inventing a contract in order to deduce social [55/56] obligations from it, every one who receives the protection of society owes a return for the benefit, and the fact of living in society renders it indispensable that each should be bound to observe a certain line of conduct towards the rest. [p. 132]
It is in the context of an ongoing, viable society that individuals enjoy the benefits that Mill mentions, and a central part of Mill's concept of harm is tied to the infringement of those rules which are necessary for the continued survival of society. The nature of these rules can be illuminated with the help of Hart's discussion in The Concept of Law of what he calls "the minimum content of natural law" (pp. 189-95). Hart argues that, given only certain very obvious generalizations or truisms about human nature and the world in which we five, "there are certain rules which any social organisation. must contain if it is to be viable" (p. 188]
First, human beings are vulnerable to attack by their fellow men, and unless therefore there are rules prohibiting the use of violence in killing and in inflicting bodily harm, it would be pointless for men to have any other rules governing their conduct. So given that men wish to survive, any society must have rules regulating conduct in these areas. Although men's physical and intellectual capacities vary, they do not differ so greatly that one person, on his own, can permanently dominate over the others. The fact of approximate equality between men, and the further fact that men's altruism is limited and they are sometimes tempted to inflict injuries on one another, means that social life would be intolerable if there were no rules restraining men's aggression. Again, men need resources like food, and these are limited. In order that food may be securely grown, there must be rules forbidding unauthorized interference and theft. So some minimal rules respecting property are necessary. And, as society gets bigger and more complex, the adequate cultivation of resources calls for division of labour, and this in turn introduces new rules. In order that men may transfer, exchange, and sell their products, certain rules acknowledging the binding nature of promises and contracts are needed. These give men confidence that others will keep their promises and contracts, and thereby make co-operation possible and mutually beneficial. So in these ways we see the necessity of rules protecting the [56/57] physical integrity of the person, respecting property, and rules recognizing the binding nature of promises and contracts. But since some men are not able to resist the temptation to break these rules in order to promote their immediate interests, it is also necessary to have institutions which enforce the rules and compel obedience by detecting and punishing malefactors.
A universal concept of harm, common to all societies, can be based on Hart's account of the importance of these types of rules. We can say that harmful conduct consists in the infringement of those rules, and the impairment of those institutions, necessary to the viability of society. Something like this is what Mill seems to have in mind, and most of his examples of harm to others can be captured within this notion of harm. But there are at least three complications which must be added, the first two being relatively minor while the third is major.
First, then, we have so far been concerned with those rules which are needed for the survival of any society. But it may be that over and above these rules, there are also other rules which are necessary to the survival of a particular society [see Mitchell, Law and Mitchell, Law and Protection]. In his discussion in the essay on Coleridge of the conditions of social stability, (which is discussed in Chapter 6 and Chapter 9 below), Mill shows his awareness of this possibility. If the concept of harm is tied to the viability of society, then of course Mill would accept that infringements of rules without which a particular society will not survive is harmful in much the same way as infringements of the universal rules. The real problem here is to show that in a given case a certain set of rules is really needed if a particular society is to survive at all, and not just to survive unchanged in its present form.
The second complication relates to the infringement of liberty. That Mill regards at least certain interferences with individual liberty as harmful is shown in the following two quotations from Utilitarianism.
The moral rules which forbid mankind to hurt one another (in which one must never forget to include wrongful interference with each other's freedom) are more vital to human well-being than any maxims, however important, which only point out the best mode of managing some department of human affairs. [p. 55]
The next quotation is also taken from his discussion of justice, [57/58] and in fact appears only a few lines later:
Thus the moralities which prevent every individual from being harmed by others, either directly or by being hindered in his freedom of pursuing his own good, are at once those which he himself has most at heart, and those which he has the strongest interest in publishing and enforcing by word and deed. [p. 56]
The idea that "wrongful interference with each other's freedom" is harmful, though not "directly", can be elaborated in the following manner. The violations of certain rules are directly harmful. But a corollary of this is that conduct which does not involve the breach of these rules is not harmful. Mill then regards interference with non-harmful. conduct as indirectly harmful. The type of wrongful interference with others' freedom that Mill has in mind relates to interference with the freedom of people to lead their own lives within the coercive framework of the central rules of the society. There is no doubt about the importance Mill attaches to such freedom.
But sometimes it looks as if Mill wishes to treat a much wider area of interference with freedom as harmful. He writes, "all restraint, qua restraint, is an evil" (On Liberty, p. 150), and this is in the context of his discussion of the doctrine of Free Trade. Trade, he says, is "a social act", and so restrictions on trade do not violate his liberty principle: they fall within the legitimate scope of social intervention. Yet it counts as an argument against restricting free trade, though not as a conclusive argument, that freedom is restricted. The force of saying that trade is a social act is that people can be harmed by trading activities. So it follows that interference with some harmful conduct is itself also harmful. But how far is Mill prepared to go? If a group of religious fanatics prevent others from practising their different religion, the fanatics harm others by interfering with their non-harmful conduct. But now if the state coercively stops the actions of the fanatics, this is interference with their harmful conduct. Is this latter interference also harmful, as at first it might appear to be, because "all restraint, qua restraint, is an evil"? Mill believes that fanatics are never justified in interfering with the non-harmful conduct of others simply because they disapprove of it. In the context of his defence of individual freedom, this implies that the [58/59] state is justified in stopping the unwarranted actions of fanatics. But if now the rightness of state intervention is a matter of balancing consequences, with the harm of the intervention itself to be thrown into the scale, then this additional harm might just tip the scale against intervention. So it would appear that Mill cannot regard all intervention with harmful conduct as themselves harmful. There is some indication of this line of thought when he writes:
To be held to rigid rules of justice for the sake of others, develops the feelings and capacities which have the good of others for their objects. But to be restrained in things not affecting their good, by their mere displeasure, develops nothing valuable, except such force of character as may unfold itself in resisting the restraint. [On Liberty, p. 121]
It would therefore appear that for Mill interference with liberty is harmful only if it restricts non-harmful conduct, or if it restricts conduct in areas covered by the necessary rules, which I shall call the "social domain". This whole idea of a social domain leads to the third, and major, complication in Mill's concept of harm.
I have said that central to Mill's notion of harm is the idea of infringing the rules necessary to the viability of society. But this is oversimplified because it is not necessary to have specific rules, but only to have rules regulating certain areas of conduct, namely the social domain. Any one of many different sets of rules in the social domain will be enough to ensure the viability of society. For example, a society needs some property rules, but it does not need any particular set of property rules. It can survive whether the rules allow for private ownership of the means of production or only public ownership. It can survive even if some groups in society are unfairly discriminated against and are not permitted to acquire certain resources [Hart points out that recognition of the minimum content of natural law does not imply that the rules are fair and morally acceptable; cf. Hare, Concept, pp. 195-96]. If harm consists in the infringement of the specific rules in a society, then what is harmful will vary from society to society. The notion of harm will be too closely linked to the particular values of different societies to serve Mill's purpose.
To avoid this high degree of relativity, Mill seems to fall back on something like the following argument. Since, in any society, it is necessary to have a common set of rules in the social domain, the infringement of the existing rules must be [59/60] regarded as harmful. But, on the other hand, it is always possible to conceive of alternative sets of rules in the social domain which, if they replace the existing set, will also ensure the survival of society, and may in addition be more desirable from other points of view. Alternative sets of rules therefore compete with one another, and anyone who is adversely affected by the operation of existing rules can claim to be harmed by them, since they are not the only rules available. Mill's account of justice in Utilitarianism gives some support to this reading of him. We have already seen that for him unjust acts are harmful. He also says that "it is just to respect, unjust to violate, the legal rights of any one" (p. 40). This means, for example, that it is unjust and therefore harmful to violate a person's property rights. But Mill goes on to say that some laws are bad, and confer rights which ought not to exist. A bad law causes harm by infringing the moral rights of persons.
The recognition that the operation of existing rules in the social domain can cause harm introduces a new element into Mill's concept of harm. Given that alternative sets of rules in the social domain are consistent with the viability of society, the question arises: Which particular set of rules should be adopted? Mill's answer here is utilitarian: the ideal rules are those which best conform to the utilitarian standard. The choice of the ideal rules will have to take into account the fact that rules in different parts of the social domain interact. There is a particularly close link between the property rules and the rules regulating the keeping of contracts. The distribution of income and resources in a community affects the bargaining powers of the parties to contracts, and therefore influences the types of contracts that are likely to be made. But the enforcement of contracts with certain contents in turn also affects the distribution of the resources of a community. So the ideal rules will have something to say not just about the distribution of income and resources, but also about the enforceability of certain types of contracts which affects this distribution.
An important implication of all this is that there is no necessary connection between Millian liberalism and either a doctrine of economic laissez-faire, or a theory of the minimal functions of the state. It is possible to combine Mill's liberty [60/61] principle with, for example, a belief in socialism. The way in which the resources of a community are distributed falls within the social domain, and therefore within the legitimate scope of state intervention. Mill is not committed to accepting the existing scheme of distribution. State intervention to redistribute the wealth and resources of the community does not exceed its proper powers, although it may be condemned on other grounds.
Hart, H. L. A. The Concept of Law. Oxford, 1961.
Mill, John Stuart. "On Liberty". Utilitarianism, Liberty, Representative Government (Everyman edn).
Last modified 20 April 2001