Vivek Laungani Professor Sandeep Sreekumar PHI 3260 April 1st, 2012 The Harm Principle John Stuart

Mill was a prominent 19th century British philosopher who wrote much on the subjects of social theory, politics, and liberty. He believed that there was nothing that should be valued higher than the autonomy of the individual, and this is shown in his theory called the Harm Principle. This theory says that the state has no right to interfere in a person's life unless another is involuntarily physically harming him. Mill's Principle is held in high regard by many common law countries because it sets the basis for the criminal law system in place. But many view this theory as being too liberal, and say that social well being rather than individual autonomy is what matters most in society. The Harm Principle is the belief that the government or ruling body has no right to interfere in an individual's actions unless that person's actions are causing harm to others. Mill first described this principle in his book entitled "On Liberty". Mill goes on to say that the term "harm" only consists of non-consensual physical harm against another person; consensual harm to others and self, and non-consensual offenses are not included in this definition. Non-consensual physical harm can range from various bodily injuries to theft or destruction of personal property. It is particularly important that Mill believes that only physical harms should be criminalized and not psychological or emotional harms, due to the fact that it cannot clearly be determined "how much" mental

harm has been done and "what exactly" the effects of mental harms are. Physical harm, on the other hand, can be visibly seen and measured to certain degrees. The Harm Principle is important as a basis for the criminal law because it sets down the limitations on how much the government can intervene in a person's life. Mill believes in the concept of maximizing individual autonomy and minimizing the role of the state. He believes that individual autonomy is the most important thing that must be considered when deciding what should and should not be criminalized. A good example that shows the importance of the Harm Principle as a basis for the criminal law is in the Brown case. According to Mill, since Brown and his friends voluntarily committed acts of genital mutilation for themselves in the privacy of their own home and only distributed tapes of it amongst themselves, they should have not been found guilty of whatever crimes they were found guilty of. Mill would say that since they did not harm anyone else without consent, they should be able to do what they please. There is some criticism, however, to the Harm Principle as being a justification for criminalizing certain actions. There are people such as H.L.A Hart who believe that the Harm Principle is an excellent justification of the criminal law, but it is too narrow. There are also people like Joseph Raz who feel that we should criminalize actions that reduce the quality of what he believes to be "the good life" (an example of this is criminalizing drug use.) But the strongest of arguments against the Harm Principle arises in the form of a concept called legal moralism: the belief that social standards of positive morality should be the guidelines of the criminal law. Believers of this view agree that the individual is just a construct of society, and outside of it the individual is nothing. The unity of society is what creates the concept of morality and standards. I feel that this

concept is flawed because it does not set down a standardized criminal law system, leading to different groups of people believing actions should be criminalized. A good example to use in this case is homosexuality: there are many areas in the United States in which people believe that homosexuality is wrong and should be criminalized. According to legal moralism, this would limit the autonomy of homosexuals that live in those particular areas, while the autonomy of homosexuals that live in areas where it is accepted is not intervened with. Mill's Harm Principle has been used as a fundamental building block on which many, if not all, common law countries base their criminal law system on, and with good reason. By holding individual autonomy as the most important aspect of society, it restricts the state from intervening in a person's life unless someone else is involuntarily harming them. While it is deemed to be extremely important, the Principle does have its critics, such as Hart and Raz. But the most powerful and extreme opposition to the Harm Principle is legal moralism, where it is believed that individuals are just constructs of the state and we should criminalize actions that are against society's moral codes. This can cause problems, however, because the beliefs of different societies can clash, making it hard to unify into a single governable body.