Law, Liberty and “the Harm
Principle”
"The only purpose for which power can be rightly
exercised over any member of a civilized
community against his will, is to prevent harm to
others."
John Stuart Mill, On Liberty.
The meaning of “harm”


By "harm", Mill means only direct harm. That
is, harm I do to others by harming myself does
not count, unless I thereby fail to fulfill some
specific, concrete obligation.
At the same time, Mill allows the state to compel
members of society to aid others
Harm principle justification


An action should be illegal if and only if it
does harm to others.
Definition issue: What is harm?
(In practice, this definition would evolve.)

American context: Environmental laws (Is
this minimum protection from harm?)

Criminal vs. civil proceedings
Some examples of paternalistic
legislation
motorcycle helmet laws, seat belt laws, laws
forbidding swimming without a lifeguard,
prohibition of recreational drugs, laws
forbidding gambling, laws regulating sexual
conduct between consenting adults in private
(including prostitution and sadism),
prohibitions of gambling, usury laws, laws
against dueling,...
More examples
Statutes prohibiting assistingin a suicide, laws
prohibiting the use of drugs not approved by
the FDA, laws prohibiting the sale of
uninspected meat (even when customer is
forewarned), mandatory Social Security
contributions, compulsory school attendance.
Mill's Exceptions

Mill recognized two exceptions to the principle:
(i) children, and
 (ii) people living in "backward states of society".

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Stephen argued that these exceptions made
Mill's principle empty.
Children vs. Adults
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Should children be protected from pornography,
or from sexual relations with adults? from the
use of alcohol, tobacco or drugs? from lack of
education?
If so, does the justification for doing so extend
to protecting some or all adults from certain
kinds of self-inflicted harm?
Criticisms of Mill



Mill claims that each person is more keenly
interested in his own welfare than is anyone
else.
Is this always so? What about those suffering
severe depression or self-loathing?
Is this sufficient? Are all adults always fully
competent to act in their own best interests?
Purposes of punishment?
Stephen also argues that the criminal law exists,
not only to deter crimes that are dangerous to
society, but "also for the sake of gratifying the
feelings of hatred -- call it revenge, resentment,
or what you will -- which the contemplation of
such conduct excites in healthily constituted
minds. " (LEF, p. 318)
The Definition of Harm


Offense? See Feinberg article. Public sexual
activity, including very exotic kinds. Public
expressions of racist, sexist ideas, displays of
swastikas? Pictures of aborted fetuses, or of
victims of illegal abortions?
Harm to others through a polluting of the moral
atmosphere? Advertising and openly soliciting
immoral activity.
Frustration of other-directed preferences?

Stephen: "It is surely a simple matter of fact that
every human creature is deeply interested, not
only in the conduct, but in the thoughts, feelings
and opinions of millions of persons who stand
in no assignable relation to him than that of
being his fellow-creatures."
Weakening the social fabric?


Do immoral acts weaken the cohesion of society
by encouraging deviation from widely and
deeply held norms? (Lord Devlin)
Is there empirical support for such an effect?
(Hart)
Indirect Harms


Increased danger to others, through damage to
one's own character? Does violation of one
social norm make violation of others more
likely?
• Increased burden on the charity of others,
through damage to one's capacity to support
oneself ?
Right to Privacy (after Griswold)


Stanley v. Georgia (1969): right to privacy protects
the individual’s viewing of pornography in his
own home.
Roe v. Wade (1973): right to privacy includes a
woman’s (even a minor woman’s) right to
terminate her pregnancy -- not a joint right, held
by the couple involved.
Problems with extending a
privacy right to abortion

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Abortions typically take place in clinics, open to
the public. Often, no long-term relationship
between doctor and patient.
Medical privacy is far from absolute -- Medicare
regulations, FDA rules.
If privacy enables the Court to avoid the
question of when life begins, why does the point
of viability affect the right?
More problems


In the third trimester, abortions may be
prohibited except where necessary for the “life or
health of the mother”. What does this rule have
to do with privacy?
How can the Court justify sacrificing the life of
the fetus for the health of the mother, no matter
how insignificant the difference in health may be?
This implies a stark inequality, inconsistent with
the Court’s professed agnosticism.
Bowers v. Hardwick (1986)

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Majority decided to uphold a Georgia statute
making sodomy a crime.
Majority opinion: J. White
Dissenting: Blackmun
Is the freedom to commit sodomy
a fundamental right?

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A fundamental right must be “deeply rooted in
this Nation’s history and tradition.” (Moore v. E.
Cleveland, 1977)
Proscriptions of sodomy have ancient roots:
common law.
Forbidden by all 13 original states, by all but 3
of 37 states at time of the ratification of the
14th amendment.
Protected by privacy?

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Otherwise illegal conduct is not immunized by
occurring in the home: illegal drugs, firearms,
stolen goods.
A rational basis (minimal scrutiny)?
Georgia holds that sodomy is immoral.
 If this is not a rational basis, then all laws
representing moral choices would be invalidated.

Blackmun’s Dissent
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Right to privacy is the key.
Privacy does not protect only the traditional
nuclear family.
Privacy is protected, not for a social good, but
because it includes a central part of an
individual’s life.
Individuals define themselves through intimate
sexual relationships.
Is White’s Position Consistent?


In Griswold, White accepted that the state must
not insist that all sex be procreative.
What can be the rational moral objection to
sodomy, once the sex/procreation link is
severed?
Planned Parenthood v. Casey
(1992)
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The reasoning of Roe is not defended -- there is
no appeal to any supposed right of privacy.
In addition, Roe’s trimester system is rejected.
Instead, viability becomes central: after viability,
“the independent essence of the second life can
now be the object of state protection.”
Liberty replaces privacy

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Importance of precedent (stare decisis): “an
entire generation has come of age free to
assume Roe’s concept of liberty.”
Court must generate a specific rule: “it falls to
us to give some real substance to the woman’s
liberty to determine whether to carry the
pregnancy to full term.
Limitations to liberty

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State may encourage philosophical and social
arguments, adoption, state assistance to pregnant
women.
May inform a woman’s free choice -- but must
not hinder it (before viability). No undue burden
= “substantial obstacle”.
After viability, reaffirms Roe: may prohibit
abortion except where necessary for the life or
health of the mother.
Scalia’s Dissent
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What makes this liberty Constitutionally
protected? Nothing to do with whether it
concerns my “concept of existence, of
meaning, of the universe, and of the mystery
of human life.” (Kennedy)
Not protected, for the same reason bigamy is
not:
Not mentioned in Constitution.
 Longstanding tradition of prohibition.

Scalia’s Dissent, cont.

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Begs the question: is the fetus a living human
being, or merely “potential life”. By what
“reasoned judgment” does the Court reach this
conclusion?
Many decisions that are “basic”, “intimate”,
“deeply personal” can be criminalized: sodomy,
bigamy, incest, suicide.
Lawrence v. Texas (2003)


Overturns Bowers. Kennedy writing the majority
opinion, O’Connor concurring.
Sodomy is a liberty protected by due process in
14th amendment:
Tradition: “emerging awareness that liberty gives
substantial protection to adults in deciding…in
matters pertaining to sex.”
 Appeal to European Court of Human Rights.
 Stare decisis is not an “inexorable command”.

The “Mystery” passage from
Planned
Parenthood
v.
Casey
 At the heart of liberty is the right to define one’s
concept of existence, of the meaning of the
universe, and of the mystery of human life.
Rights to privacy and equal
protection also involved

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Privacy progression: Griswold, Eisenstadt, Roe, Carey v.
Population Services (1977) -- invalidated a law barring the
distribution of contraceptives to persons under 16.
Also, the equal protection clause is relevant, as ruled in
Romer v. Evans (1996).
Sodomy is not defined as a
fundamental liberty
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Kennedy nowhere asserts (contrary to Bowers)
that there is a fundamental liberty to commit
sodomy.
Consequently, the Texas law must pass only
minimal scrutiny: a rational relation to a
legitimate purpose.
Enforcing morality is no longer
legitimate

“Our obligation is to define the liberty of all,
not to mandate our own moral code.
O’Connor’s opinion
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O’Connor stands by the reasoning in Bowers -sodomy is not a fundamental liberty.
However, the Texas statute violates the equal
protection clause: the conduct (sodomy) is
“closely correlated with being homosexual”. The
act is “directed toward gay persons as a class.”
No legitimate purpose

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O’Connor does not claim that the classification
of homosexual/ heterosexual is suspect. So,
minimal scrutiny?
“Moral disapproval of a group cannot be a
legitimate governmental interest… because legal
classifications must not be drawn for the
purpose of disadvantaging the group…”
Scalia’s Dissent
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Nowhere does the Court in Lawrence declare
sodomy to be a fundamental liberty, or subject
the Texas law to strict scrutiny.
This effectively decrees the end of all moral
legislation: “bigamy, same-sex marriage, adult
incest, prostitution, masturbation, adultery,
fornication, bestiality and obscenity…”
The role of social dissent


In Planned Parenthood v. Casey, widespread social
discontent with Roe was given as a reason for
upholding Roe: to overrule under fire would
subvert the Court’s legitimacy.
In Lawrence, social dissent from Bowers is given as
reason for overturning it. No consistency!
Against O’Connor
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
Every law prohibiting any conduct whatsoever is
directed against a class, namely, those more likely
than average to engage in the forbidden act.
A law against public nudity targets conduct that
is “closely correlated” with being a nudist.
Same Sex Marriage?


The Court claims the present case “does not
involve whether the government must give
formal recognition to any relationship that
homosexual person seek to enter.”
Scalia: “Do not believe it.”