Harm as the Non-Fulfilment of Desire
ill's liberty principle allows intervention in the freedom of the individual in order to prevent harm to others. Although the infliction of bodily injury is one type of harm, Mill obviously did not regard it as synonymous with the whole range of harmful conduct. For example, he regarded theft and unwarranted invasions of liberty as also harmful. But once the notion of harm is extended beyond that of bodily injury, the problem is to find somewhere to stop without arbitrariness or without invoking highly disputable values. It is sometimes said that the notion of harm is so deeply value impregnated that there can be no general agreement among people with different values about what is harmful1.
Within the utilitarian tradition, the wide notion of harm as the frustration or non-fulfilment of any desire whatever recommends itself. Perhaps the dearest account of this idea of harm is that developed by R. M. Hare who maintains that “To harm somebody is to act against his interests” ("Wrongness," 97). The notion of interests is conceptually linked to that of desires, or that of wanting. So to say that an act would harm somebody is to say that “it would, or might in possible circumstances prevent some desire of his from being realize” (98). Hare uses the notions of desiring or wanting in a wide sense such that a person desires something if and only if, other things being equal, he will seek to do, or to get, or to retain it. Thus for Hare, to harm someone is to frustrate the fulfilment of his desires ("Wrongness, 102). Hare in fact adopts preference utilitarianism rather than classical utilitarianism. The preference utilitarian seeks to maximize the net satisfaction of desires. The classical utilitarian, on the other hand, is concerned with maximizing pleasant experiences or states of mind. He will therefore confine the notion of harm to the frustration of a desire, where the frustration in question is a felt experience. The fulfilment [52/53] or non-fulfilment of desires which merely involves the coming into existence of a state of affairs, but which does not produce pleasant or unpleasant experiences, will not be relevant. So, unlike Hare, the classical utilitarian will not think that a person has been harmed if the person is unaware, and will never be aware, that a desire of his is unfulfilled. And the dead too cannot therefore be harmed since they are incapable of having any experiences [Hare refers to the harming of the dying man's interests in "Theory," 130-1; see also Feinberg, "Harm," 302].
However, there will be agreement between the classical utilitarian and the preference utilitarian over a very wide range of harmful conduct. For example, if a religious person is offended by the conduct of others even in private, or if his desire that they should change their behaviour is not complied with, then he is, on both views, harmed. Again, if a fanatical Nazi desires that all Jews be put to the gas chamber, and his desire is not realized, then he has been harmed. Of course sending Jews to the gas chamber will also harm them, and to a greater degree than the harm inflicted on the Nazi if his desire is not fulfilled. But Hare himself points out that
If, per impossible, there were any such real fanatic, i.e. a fanatic whose desire to be rid of Jews really did outweigh in strength the desires of all the Jews not to be rid of, then, both on the utilitarian view and on mine, the desire ought to be complied with. ["Reply," 52]
It is an implication of Hare's position that an innocent Jew, going about his daily concerns without bothering anybody, would none the less be harming fanatical Nazis simply because their desires that he be put in a gas chamber are not complied with. Indeed the more fanatical the Nazis, the greater are their desires to eliminate the Jew, and hence the stronger is the utilitarian case for sending the Jew to the gas chamber. Hare himself believes that in real life, situations of this kind, where the number of fanatical Nazis far exceeds the number of Jews such that satisfactions will be maximized if Jews are exterminated, will not occur. This optimism may be well placed. But it is difficult to have the same confidence with regard to less extreme cases of racial and religious intolerance and prejudice towards minority groups, in which what is demanded by the majority is inferior treatment of minorities, or the withholding of some rights, or perhaps their deportation. In some real-life situations, the results of a truly neutral [53/54] utilitarian calculation may be very indecisive as between liberal and illiberal solutions, with everything depending on the intensity of feelings and the way the numbers swing. No one, who is concerned with the freedom of minorities in the face of a hostile and prejudiced majority, can be happy with this situation. The fact that many utilitarians are convinced that the calculation will easily support a policy of toleration is a tribute to their latent liberalism rather than to their professed utilitarianism, or their understanding of the depth and intractability of racial and religious prejudices.
It is evident that Mill does not accept this wide, utilitarianly based notion of harm. He says explicitly that we should be free to do what we like without interference from others “so long as what we do does not harm them, even though they should think our conduct foolish, perverse, or wrong” (On Liberty, 75). Here he is contrasting two different types of adverse effects on others. If our conduct affects others simply because they regard it as “foolish, perverse, or wrong”, then we do not harm them, whatever else we may be said to have inflicted on them. So Mill cannot believe that the non-fulfilment of their desires that we stop our “foolish, perverse, or wrong” conduct is a form of harm to them. Here it is important to distinguish between two different positions. The first is that conduct which adversely affects others in these ways harms them, but the harm is slight and is always outweighed by the good of non-intervention. This is not Mill's position. If it were, then he would have to regard such conduct as other-regarding, which he plainly does not. His position is that the conduct does not harm others at all, and therefore no question of balancing harm against harm, or harm against good, arises. The former position is compatible with utilitarianism, but Mill's position is not.
However, it may be argued that a consistent utilitarian is not forced to accept the wide notion of harm that Mill so dearly rejects. He can, for example, regard as harmful conduct which causes a net balance of pain over pleasure. In that case it is not necessary for him to consider all actions which cause pain or distress as harmful. For example, homosexual conduct between consenting adults in private may distress others, but if it invariably produces more pleasure than pain, then it is not, on this view, harmful. This is a notion of harm that the [54/55] utilitarian can accept because it takes into account all forms of pain or distress in determining whether an act is harmful. But it is evident that Mill does not accept this notion of harm either. Mill believes that the relevant calculation comes into play only after it has been shown that an action is harmful, whereas on this account the utilitarian calculation determines whether that action is harmful. Thus Mill writes:
As soon as any part of a person's conduct affects prejudicially the interest of others, society has jurisdiction over it, and the question whether the general welfare will or will not be promoted by interfering with it, becomes open to discussion. But there is no room for entertaining any such question when a person's conduct affects the interests of no persons besides himself, or needs not affect them unless they like (all the persons concerned being of full age, and the ordinary amount of understanding.) [On Liberty, 132]
Mill's Concept of Harm
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, 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.” (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” (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. [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” (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” (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. [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. [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, 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, 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 ownershiIt 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, 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” (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.
Causing Harm and Preventing Harm
he extent of Mill's restriction on the scope of social intervention depends on whether intervention is confined to conduct which causes harm to others, or whether it applies much more broadly to cover cases in which intervention prevents harm to others. On the latter, harm-prevention, view, we may interfere with a person's conduct even when the conduct does not cause harm to others, provided only that our interference will prevent harm to others. Mill seems to move from a formulation of his principle in terms of harm-causing to one in terms of harm-prevention [see On Liberty, 73-4]. But he needs the broader formulation in terms of harm-prevention in order to cover some of his examples such as “saving a fellow-creature's life, or interposing to protect the defenceless against ill-usage”. Mill regards failure to save a fellow-creature's life as an omission that causes harm to him. He tries to assimilate omissions to cases of causing harm to others by maintaining, “A person may cause evil to others not only by this actions but by his inaction, and in either case he is justly accountable to them for the injury.”
But it has been forcefully argued by D. G. Brown that at least in some cases in which I do not save another person's life, or do not protect the defenceless from harm, it does not follow that I cause harm to him ("Mill on Liberty," 145). For example, suppose I do not save a drowning person who was pushed into the water by a third party. I may be morally culpable for not saving him, and perhaps I should even be punished for my inaction. But it still does not follow that my inaction is the cause of his drowning, which may be attributed to the third party. So if interference with my liberty will deter others from failing to save drowning people, then it is justifiable – not [61/62] because my inaction causes harm, but rather because intervention helps to prevent harm to others. To cover this kind of case, Mill would have to accept the wider formulation of his principle to embrace interference to prevent harm to others.19
But it has been argued that Mill's whole distinction between self- and other-regarding actions collapses if his principle is expanded in this way. As McCloskey has pointed out, “A person who fails to help another who is drowning because he is fishing, and the fish biting well, is acting in a purely self-regarding way, even though he thereby allows avoidable harm to come to another” (McCloskey, 108). The force of this objection depends on the assumption that Mill's defence of individual liberty rests on his distinction between two mutually exclusive classes of conduct, self- and other-regarding conduct, and that self-regarding conduct should never be interfered with. However, I have suggested in Chapter 2 that what is really crucial to Mill's case for freedom is not this distinction between different types of conduct, but a different distinction between various reasons for interfering with an individual's conduct. Some reasons for intervention are relevant while others are not. Intervention in order to prevent harm to others is always relevant, but one is never justified in interfering simply because one dislikes the conduct, or strongly disapproves of it. The absoluteness of Mill's barrier against intervention is raised only against certain reasons for intervention which are often invoked.
If we now return to McCloskey's example, we can reply that Mill regarded it as permissible in principle to interfere with a person's fishing, not in order to prohibit that activity, but in order to compel him to save a drowning man, and thereby to prevent harm to others. A person required to save a drowning man may be engaged in any one of a whole variety of different actions, some of which society may disapprove of. If interference with these actions is justified in certain circumstances in order to prevent harm to others, it does not follow that interference is also justified simply in order to prohibit the actions as such. The intervention must always be grounded on the prevention of harm to others, and not on the non-harmful but disapproved-of features of the actions. [62/63] Intervention interrupts, but does not prohibit the actions in question.
But how far is Mill prepared to go in allowing intervention to prevent harm to others? Certain constraints on the extent to which one person's welfare may be sacrificed in order to promote the greater welfare of others are imposed by Mill's liberty principle. It does not allow intervention in a person's conduct in order to maximize the general happiness, because the maximization of happiness will go well beyond the prevention of harm to others. But is Miff prepared to accept intervention in order to maximize harm-prevention? This can still involve very great sacrifices of the welfare and liberty of individuals. Consider John Harris's “survival lottery”. Suppose that two or more patients will die unless they get major organ transplants. They can each acquire the necessary organs from the same person. A method of selecting the unfortunate donor would be to institute a survival lottery which randomly picks out the donor from the whole population. Such a lottery may well maximize harm-prevention because the number of patients who benefit will exceed the number of donors required. What would Mill's attitude be towards such a lottery, and similar schemes for maximizing harm-prevention?
First, the survival lottery is consistent with at least part of Mill's defence of liberty. The lottery does not interfere with conduct simply on the ground that it is disliked or disapproved of by others. If the lottery is properly run, there is no danger that those who offend the moral and religious sensibilities of the majority will be victimized. After all, what really matters is, for example, the condition of the person's heart, and not that of his soul.
Secondly, in On Liberty Mill points out that, “owing to the absence of any recognised principle, liberty is often granted where it should be withheld, as well as withheld where it should be granted” (159). So he expects his principled defence of liberty to enlarge liberty in some areas, but to diminish it elsewhere. So perhaps Mill is prepared to choose between schemes of harm-prevention on the basis of purely utilitarian considerations. There are, after all, some utilitarian arguments against the survival lottery [cf. Singer], and it may be that [63/64] there will be very few drastic schemes for harm-prevention which will survive a close utilitarian scrutiny. Would Mill therefore be prepared to leave the case to be settled solely on the balance of conflicting utilitarian considerations? I have some doubts.
These doubts centre on the examples of harm-prevention that Mill envisages. They are all cases in which the cost to the person interfered with is slight compared with the harm to others that is being prevented. The harm prevented is always grave: “saving a fellow-creature's life, or interposing to protect the defenceless against ill-usage”. In Utilitarianism it is again the saving of a life which permits, and indeed makes it a duty “to steal, or take by force, the necessary food or medicine, or to kidnap, and compel to officiate, the only qualified medical practitioner” (59). In all these cases the interventions to prevent harm do not appear to have major and irreparable adverse effects. Persons called upon to prevent harm to others can resume their activities and pursue their plans of life after the temporary interruptions. Certainly no permanent obstacles are placed to the achievement of their aims and purposes in life. On the other hand, in schemes like the survival lottery, the harm inflicted on any single person can be worse than the harm avoided by each beneficiary of his sacrifice.
Of course an unrestricted policy of maximizing harm-prevention can give rise to all the distributive problems confronting utilitarianism. It will, for example, permit the infliction of the most extreme agony on one person in order to prevent many others from each suffering a very minor harm. Given that the agony suffered by the one person lasts a finite period of time, it will, on the utilitarian calculus, be outweighed by even the smallest harm, spread out over enough people. However, Mill's examples of harm-prevention are confined to cases of grave harm. But the maximization of harm-prevention, even when restricted to cases of grave harm, will still allow for far greater sacrifices of the welfare and freedom of individuals than Mill's examples indicate. Perhaps Mill is trying to restrict the extent of the sacrifices involved when he writes that each person's share “of the labours and sacrifices incurred for defending the society or its members [64/65] from injury and molestation” should be fixed “on some equitable principle” (On Liberty, 132). He does not specify what this “equitable principle” would be. But as far back as 1832 he already showed an awareness of the need for some fair principle of distribution when he wrote:
Whatever obligation any man would lie under in a state of nature, not to inflict evil upon another for the sake of good to himself, that same obligation lies upon society towards every one of its members. If he injure or molest any of his fellow-citizens, the consequences of whatever they may be obliged to do in self-defence, must fall upon himself; but otherwise, the government fails of its duty, if on any plea of doing good to the community in the aggregate, it reduces him to such a state, that he is on the whole a loser by living in a state of government, and would have been better off if it did not exist. This is the truth which was dimly shadowed forth, in howsoever rude and unskilful a manner, in the theories of the social compact and of the rights of man. [Mill, "Use and Abuse," 11]
All the little available evidence we have seems to point to an “equitable principle” in which the sacrifice a person is called upon to make is at least not greater, and perhaps much less, than the harm to each beneficiary. So even here Mill's utilitarianism is tempered by the recognition of some independent principle of distribution.
But Mill's main concern in On Liberty is to set limits to intervention in the conduct of individuals. Because of this, once it is clear that certain actions fall within the proper scope of social intervention, he does not usually proceed to discuss further whether intervention is actually justified. He thereby lost the opportunity of formulating more precise general principles for justifying actual intervention. But even so we can draw a few general conclusions from his discussion.
First, permissible interference goes beyond interference with acts of injustice [but see Williams]. It is not unjust to fail to save a life because the duty to save a life is not, for Mill, a duty of justice. None the less it may be enforced. Indeed in Utilitarianism Mill thinks that this duty is so stringent that it overrides some duties of justice. But he immediately points out that in such cases we tend to re-describe the situation:
... as we do not call anything justice which is not a virtue, we usually say, not that justice must give way to some other moral principle, but that what is just in ordinary cases is, by reason of that other principle, not just in the particular case. By this useful accommodation of language, [65/66] the character of indefeasibility attributed to justice is kept up, and we are saved from the necessity of maintaining that there can be laudable injustice. [59]
This of course fudges the issue a bit. The special character of the obligations of justice, which Mill is concerned to establish, is destroyed if one is prepared to expand the category of justice to embrace every important moral obligation that should, on a particular occasion, be carried out even when it conflicts with some obligations of justice. Properly described, Mill's position is that a duty of justice may be overridden by another duty of justice, as well as, in some cases, by a moral obligation that is not an obligation of justice.
Secondly, it is a mistake to argue, as has been done recently by D. G. Brown, that “Distinct and assignable obligations enter, not in determining whose interests are at stake, but in specifying what conduct it is that the weighing of interests will finally justify us in requiring” ("Mill on Harm," 397-78). Mill's reference to “distinct and assignable obligations” is made in the context of his reply to the objection that no acts are without some effects on others. Mill acknowledges that every person's conduct can adversely affect others, but he goes on to argue that it is only when the person violates a distinct and assignable obligation to others that “the case is taken out of the self-regarding class, and becomes amenable to moral disapprobation in the proper sense of the term” (138). His point is not that when a distinct and assignable obligation is violated, the person should actually be interfered with, but rather that there is now a case for intervention as the conduct is taken out of “the province of liberty”. When he acknowledges that a person's conduct may seriously affect others, he is not thereby claiming that they are harmed. As we have noted in Chapter 2 and earlier in this chapter, he does not count certain kinds of adverse effects on others as constituting harm to them. But violations of distinct and assignable obligations are harmful because they involve breaches of contracts or promises.
Finally, in spite of Mill's explicit statement to the contrary, he is sometimes still interpreted as maintaining that the prevention of harm to others is a sufficient condition for the intervention in an individual's conduct [cf. Lucas, 174; and Nagel]. But at the most [66/67] Mill's position is that harm to others is a necessary condition for intervention, as when he says: “it must by no means be supposed that because damage, or probability of damage, to the interests of others, can alone justify the interference of society, that therefore it always does justify such interference.” (150.) Even this may be too strong, and it places pressure on Mill, to which he sometimes yields [On Liberty, 28], to extend his notion of harm in order to cover all the cases where he thinks that intervention [On Liberty, 74] is permissible. On one occasion, however, Mill maintains that harm to others provides “a prima facie case” for intervention, and this comes closer to the position he actually defends in On Liberty. On the one hand, he wants to rule out certain reasons for intervention: the fact that the action harms the agent, and the fact that the action is disliked by others and regarded as perverse or wrong by them. On the other hand, he treats harm to others as always a good reason, and indeed the central reason, for intervention. But he can maintain both these theses without regarding harm to others as a necessary condition for intervention. For, so long as we retain Mill's relatively narrow notion of harm, there may be other good reasons for intervention, and the two types of reasons with which he was particularly concerned, do not exhaust the whole range of available reasons.
Last modified 1 May 2015