Chapter Four: Harm to Others -- Causing Harm and Preventing Harm

Chin Liew Ten, Professor of Philosophy, National University of Singapore

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Chapter 4, part 3, of the author's Mill on Liberty, which Clarendon Press published in 1980. It has been included in the Victorian Web with the kind permission of the author and of the Clarendon Press, which retains copyright.

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decorative initial 'T' 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, pp. 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," p. 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.

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, p. 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" (p. 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" (p. 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, p. 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," p. 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. [p. 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," pp. 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" (p. 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, p. 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." (p. 150.) Even this may be too strong, and it places pressure on Mill, to which he sometimes yields [On Liberty, p. 28], to extend his notion of harm in order to cover all the cases where he thinks that intervention [On Liberty, p. 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.

References

Brown, Douglas. "Mill on Liberty and Morality" Philosophical Review, 91 (1972).

_____ "Mill on Harm to Others' Interests" Political Studies, 26 (1978).

Harris, John. "The Survival Lottery" Philosophy, 50 (1975).

McCloskey, H. J. John Stuart Mill: A Critical Study. London, 1971.

Singer, Peter. "Utility and the Survival Lottery" Philosophy 52 (1977).

Lucas, J. R. The Principles of Politics. Oxford, 1966.

Mill, John Stuart. "On Liberty". Utilitarianism, Liberty, Representative Government (Everyman edn).

_____ "Use and Abuse of Political Terms" Essays on Politics and Society. Collected Works of John Stuart Mill, ed. J. M. Robson. Vol. xviii. Toronto and London, 1977.

Nagel, Ernest. "The Enforcement of Morals" Moral Problems in Contemporary Society, ed.Paul Kurtz. Englewood Cliffs, 1969.

Williams, G. L. "Mill's Principle of Liberty" Political Studies, 24 (1976).


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