231. Peter Simpson’s critique of Mill’s harm principle

J.S. Mill (1806-1873)

John Stuart Mill, in his classic book On Liberty (1859), offers one of the most enduring principles in political philosophy. This principle has come to be known as the harm principle and it is a widely embraced principle in the history of liberalism. However, Peter Simpson, Professor Emeritus of Philosophy and Classics at CUNY, argues that adopting the principle tragically leads to the very thing the principle was offered to help us avoid: tyranny. This is very interesting and in this post I want to give a brief overview of his argument. Before doing so, let’s take a look at some key ideas in On Liberty.

On Liberty

The title of Mill’s book suggests it is about the philosophical issue of free will vs. determinism. But he is quick to point out that this is not the case. Rather, the book is about the relation between individual liberty and social restrictions on that liberty. As he says in the opening line, “The subject of this Essay is not the so-called Liberty of the Will, so unfortunately opposed to the misnamed doctrine of Philosophical Necessity; but Civil, or Social Liberty: the nature and limits of the power which can be legitimately exercised by society over the individual.” He opens with a history of various political arrangements and their relation to liberty. He eventually comes to democracy which is celebrated for not having the kind of unjust political tyrannies that marked so much of the past. However, Mill discerns a new type of tyranny we must still guard against, namely, the tyranny of the majority. This form of tyranny occurs when the majority of people in a society, rather than the public authorities, harm those who are in the minority. He writes: 

“Like other tyrannies, the tyranny of the majority was at first, and is still vulgarly, held in dread, chiefly as operating through the acts of the public authorities. But reflecting persons perceived that when society is itself the tyrant—society collectively, over the separate individuals who compose it—its means of tyrannising are not restricted to the acts which it may do by the hands of its political functionaries. Society can and does execute its own mandates: and if it issues wrong mandates instead of right, or any mandates at all in things with which it ought not to meddle, it practises a social tyranny more formidable than many kinds of political oppression, since, though not usually upheld by such extreme penalties, it leaves fewer means of escape, penetrating much more deeply into the details of life, and enslaving the soul itself.”

Mill then reveals that the aim of his book is to propose a principle that we can use to help insure individual liberty is maintained in the face of the tyranny of the majority. The principle, now known as the harm principle, has had quite an influence philosophy, politics, and law. Mill presents it as follows: “That principle is, that the sole end for which mankind are warranted, individually or collectively, in interfering with the liberty of action of any of their number, is self-protection. That the only purpose for which power can be rightfully exercised over any member of a civilised community, against his will, is to prevent harm to others.”

Title page of the first edition, 1859

But what is meant by harm here? Mill claims harm will ultimately be understood as a violation of rights: “This conduct [of harm] consists, first, in not injuring the interests of one another; or rather certain interests which, either by express legal provision or by tacit understanding, ought to be considered as rights…”. Mill points out that no one is an island and that, given our relations with others in society, we are bound to harm others in various ways. But only harm as a violation of rights can be addressed by an interference with liberty; all the other ways will have to be tolerated or addressed in ways that do not violate the harm principle.

Now, once Mill establishes the problem (tyranny of the majority and the need to find a principle to deal with it) and offers us his guiding principle (the harm principle), he moves on to discuss the three characteristics necessary for any society with human liberty:

“This, then, is the appropriate region of human liberty. It comprises, first, the inward domain of consciousness; demanding liberty of conscience, in the most comprehensive sense; liberty of thought and feeling; absolute freedom of opinion and sentiment on all subjects, practical or speculative, scientific, moral, or theological. The liberty of expressing and publishing opinions may seem to fall under a different principle, since it belongs to that part of the conduct of an individual which concerns other people; but, being almost of as much importance as the liberty of thought itself, and resting in great part on the same reasons, is practically inseparable from it. Secondly, the principle requires liberty of tastes and pursuits; of framing the plan of our life to suit our own character; of doing as we like, subject to such consequences as may follow: without impediment from our fellow-creatures, so long as what we do does not harm them, even though they should think our conduct foolish, perverse, or wrong. Thirdly, from this liberty of each individual, follows the liberty, within the same limits, of combination among individuals; freedom to unite, for any purpose not involving harm to others: the persons combining being supposed to be of full age, and not forced or deceived. No society in which these liberties are not, on the whole, respected, is free, whatever may be its form of government; and none is completely free in which they do not exist absolute and unqualified.”

So a truly free society requires:

(1) Absolute freedom of thought/feeling and the ability to discuss and express our thoughts and feelings.
(2) The freedom to act as we wish and pursue happiness.
(3) The freedom to assemble with others, form groups, and so on. 

In chapter two (“Of the Liberty of Thought and Discussion”) Mill defends (1) by using fallibilism or the view that no belief can be supported or justified in a conclusive way. Mill reasons as follows: if we are all fallible people who can make mistakes then we should engage in dialogue, inquire together, and really listen to one another. After all, if we can be wrong then those with whom we disagree may have the truth or a part of the truth. And even if they don’t have any truth, engaging in genuine dialogue and debate can help us better understand the intellectual grounds of our ideas and allow those ideas to become part of our character.

In chapter three (“Of Individuality, as One of the Elements of Well-Being”) Mill offers a two-fold justification for (2). The first part is that human nature is not a machine “but a tree which requires to grow and develop itself on all sides, according to the tendency of the inward forces which make it a living thing.” Mill infers from this romantic description that we should allow people to develop their interests and pursue happiness in their own way (as long as they don’t violate the harm principle). When we push people to live the same way then we are threatening the uniqueness of human beingand indeed human nature itself. His second and related reason flows from his utilitarian theory of morality which entails that right action is action that generates pleasure for the majority of those involved in a situation. He claims that we might all benefit from the fruits of people’s diverse pursuits. Here we can think of the innumerable contributions from various races that have enriched the human species for the better. True, the results of people’s projects aren’t always useful to say the least. But the ones that are useful “are the salt of the earth; without them, human life would become a stagnant pool”. And this salt cannot flourish in social contexts that do not support our differences. To be sure, Mill is not claiming we have to agree with these pursuits or that we can’t argue against them. But celebrating the right of people to have them will, he thinks, end up promoting the common good.

Peter Simpson

Simpson’s Critique

Of all these ideas Mill’s harm principle continues to strike many people as the most plausible. Naturally, objections have been raised that try and improve upon it, overcome various tensions associated with it, and so on. For example: should we define harm as a violation of rights? Whose rights? Which rights? And what are rights? Aren’t rights typically more like privileges in our society? If so, can they really offer us a stable foundation for the pursuit of liberty? A lot of work needs to be done if we are to adequately answer these questions. We can also ask: when is someone, or some society, not autonomous enough to be protected by the harm principle? When Mill discusses the harm principle he notes he is talking about “civilized” people – not children or those “incapable of self-government” living in “backward states of society.” But what is meant by “incapable” here? And who gets to decide which societies are “backward”? Mill is justly praised for his early advocacy of women’s rights in his classic The Subjection of Women (1869) in which he also expressed his support for the abolition of slavery. But Mill worked for the British East India Company from 1823 to 1858 and “argued in support of what he called a benevolent despotism with regard to the colonies….Mill justified the British colonization of India, but was concerned with the way in which British rule of India was conducted” (Wikipedia). For some this shows that Mill’s ideas can lead to racism and the very tyranny they were introduced to avoid. Indeed, some claim his views on India reveal him to be a racist of some kind (for an argument that this is the case, go here; for a contrary view, go here). The issue, while controversial, shows how perilous it can be to apply a principle that is supposed to offer liberty. It has been all too easy for those in power to decide, with bad intent or not, that certain people are incapable of autonomous action, governance, reason, morality, and so on. So it is important to see how Mill’s principle of liberty can thwart liberty if misused.

However, Peter Simpson, in his book Political Illiberalism: A Defense of Freedom (Routledge, 2015), goes much further and argues that the harm principle is not an adequate foundation for liberty at all. He points out that, while classical liberalism protected people’s negative rights (rights to not be interfered with), in time liberalism had to protect people’s positive rights as well (rights to certain goods such as education) in order to make a more equal playing field upon which people could pursue their diverse projects. He notes that this led to a striking result, namely,

“that classical liberalism ceased to be viewed as the expression of a limited form of government that was, on the basis of the harm principle, protecting everyone’s negative rights. Instead it came to be seen as a system that, by protecting the rich and strong in their seizure of profits, was using its coercion directly to inflict harm. Liberalism thus seemed to be refuted on the basis of its own principle” (51).

For Simpson, this dynamic led to, on the one hand, more and more governmental control via a militarized police force to secure both negative and positive rights and, on the other hand, a relinquishing of control as far as morality and religion is concerned. All the liberal state can offer is the value of liberty within the confines of the harm principle. One problem with this offer is that, far from being a morally and politically neutral value, it is a liberal value with which conservatives may disagree. But the more important point is that this lack of substantial guidance, when combined with a set of immoral factors in society, all too often results in a lack of what people require as a means to reaching their diverse ends, namely, virtue. But “if political authority may act to ensure the presence and fair distribution of other basic goods, and if these basic goods are in fact less basic and indeed less good than the virtues, then political authority should act to ensure the presence of the virtues too” (55). According to Simpson, the result is tyranny from both inside and out: external oppression from an increasingly interventionist government and internal oppression from the unruly appetites and passions. What is most needed, the centrality of truth to social life, is exactly what liberalism can’t provide: “the liberal arrangement is false in its understanding of the point and purpose of the human community, since it relegates to the private sphere what should be at the center of public life, namely the striving for the comprehensive truth” (180). Mill, as we have seen, wants to ground the liberty of thought and discussion in fallibilism and a commitment to discover the truth through shared inquiry. But can we really expect, given the lack of guidance the harm principle provides, to develop in people a love of truth and the ability to rationally pursue it? The widespread failure of education and rational engagement with issues in our country suggests a negative answer. In light of these difficulties, Simpson concludes: “The modern state is despotism, and to seek for liberty within it is illusory.” He then goes on to his prescription for a better arrangement:

“Human politics requires the devolution of authority to local communities on the one hand and a proper distinction between spiritual and temporal powers on the other. Neither of these desiderata exists in modern liberalism or the modern state. Human liberty and the human good can be found only in different political arrangements” (x).

And whatever the nature of these arrangements, they cannot focus, as liberal theories of government do, on a fair system of cooperation between the government and free and equal moral persons. Rather, they should be guided by the insight that no one is free, moral, or equal before or outside the system of cooperation that is the political community. As he puts it, “Political illiberalism holds that the political community exists to make us free and moral, and so exists to subordinate the unfree and unmoral to the education and control of those who, by nature or training, are already now free and moral and capable of making others so.”

Simpson’s prescriptions, while controversial, are nonetheless powerful and should lead us to think hard about whether or not the harm principle is an adequate foundation for liberty at all.

Go here for Simpson’s paper in which he responds to many objections to the ideas in his book.

Go here for a TV discussion with Chris Hedges about the book.

Buy the book here.

Go here for Simpson’s website.

Go here for some of my other posts on Mill.

Go here for a related objection to classical liberalism from John Dewey.

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