The inadequacy of the Harm principle

By Atty. Farah G. Decano

 

IN a nutshell, John Stuart Mill’s discourse on “On Liberty” proposes that in order for individuals to achieve the greatest happiness[1], they must be able to enjoy three types of liberties: 1) liberty of thought and opinion; 2) liberty of tastes and pursuits; 3) liberty to assemble[2].  He must, therefore, be protected from interferences to these freedoms.

Happiness, to Mill, is simply defined as the attainment of pleasure and the absence of pain[3]. Morality of actions are measured by that which gives the greatest happiness or that which eliminates pain.  The liberty to pursue pleasure and avoid pain for as long one does not harm others is a sign of true freedom[4]”. Mill claims that the sphere of government power begins only when a conduct of an individual is harmful to others. Conversely, when the individual performs actions that are not harmful, there is no reason for state to use its coercive powers.

This harm principle presumes that the assertion of individuality in society will lead to something good. While Mill may have provided arguments for this positive outcome, he neglected to provide basis why a negative consequence to the harm principle is not likely.  Mill is too optimistic that freedom within bounds of law and social acceptance alone will produce the best results.

Mill’s concept of liberty underscores self-regulation.

The interaction of people in social media however debunks Mill’s harm principle.  What used to be the virtual haven for unbridled self-expression including the fabrication of falsehood (which Mill believe to be a part of liberty) is now considered chaotic and toxic. Some people are now unhappy online. They either have stopped living their virtual lives, or have just become mere lurkers.  In the cyberworld today, tyranny by the majority is prevalent.

Would self-regulation in cyberspace work as it did successfully decades ago?

Since the cyberspace is a valuable tool, governments cannot allow anarchy to take over. The need for external positive control or the enactment of laws in cyberspace is now recognized.  Cyber laws have been passed in response to the need for order and trust.[5] There are now researches to promote safe online transactions and to eradicate misinformation. Twitter and Facebook currently have policies on suspension of accounts.  The latter application has developed stringent computer programs that can detect or warn users from fake news.

In achieving human flourishing, Joseph Raz was not satisfied with the Harm Principle. He suggested the Autonomy Principle wherein the government is duty bound to create valuable opportunities and eliminate the repugnant ones[6].   According to Raz, “it is a state’s primary duty in the relevant kind of society to promote, protect and foster the autonomy of all citizens. This requires furnishing all with an ‘adequate range of valuable options.’ But the qualification ‘valuable’ is of fundamental importance to the account. The state need not lift a finger in defence of worthless options; it has no duty of, say, neutrality to keep itself above the fray between the options that people desire to pursue[7]”.

 Maximization of pleasure includes not only the avoidance of government interference in non-harmful activities. It also embraces the augmentation of existing conditions and the skillful allocation of limited resources by government. In other words, government should have more affirmative actions by providing opportunities to its constituents, and by eradicating those that are detestable.

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