Sometimes Mill suggests that the harm principle is equivalent toletting society restrict other-regarding conduct (I 11; IV 2). On thisview, conduct can be divided into self-regarding and other-regardingconduct. Regulation of the former is paternalistic, and regulation ofthe latter is an application of the harm principle. So on this view itis never permissible to regulate purely self-regarding conduct andalways permissible to regulate other-regarding conflict. But, as Millhimself concedes, very little conduct is purely self-regarding (IV 8).Some other-regarding conduct causes mere offense, not genuine harm (IV3; IV 12). So Mill cannot equate harmful behavior and other-regardingbehavior and cannot think that all other-regarding behavior may beregulated.
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Mill's “one very simple principle”—that libertymay be restricted always and only to prevent harm to another—isover-simple. So too is the related categorical approach to liberty thatapproves all applications of the harm principle and rejects all casesof paternalism, censorship, offense regulation, and legal moralism.
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We have focused so far on understanding Mill's version ofutilitarianism, especially his conceptions of happiness and duty. Nowwe should consider his justification of utilitarianism, which he offersin his discussion of the “proof” of the principle ofutility in Chapter IV. Mill claims that the utilitarian must claim thathappiness is the one and only thing desirable in itself (IV 2). Heclaims that the only proof of desirability is desire and proceeds toargue that happiness is the one and only thing desired. He argues thata person does desire his own happiness for its own sake and that,therefore, happiness as such is desired by and desirable for its ownsake for humanity as a whole (“The aggregate of allpersons”) (IV 3). He then turns to defend the claim thathappiness is the only thing desirable in itself, by arguing thatapparent counterexamples (e.g., desires for virtue for its own sake)are not inconsistent with his claim (IV 5–8).
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One Millian response is to deny that the harm principle is intendedto serve as a necessary condition on any and all restrictions onliberty. As we saw, Mill is interested in defendingfundamental or basic liberties, rather than libertyper se. In particular, he is interested in liberties ofconscience and expressive liberties, liberties of tastes and pursuits,and liberties of association (I 12). He can defend these liberties asplaying a more central role in our practical deliberations and ourformation and pursuit of personal ideals than other liberties. But thenMill might try to justify the modest restrictions on liberty necessaryto provide the benefits of significant public goods by claiming that,even if these restrictions on liberty don't prevent harms, they do notrestrict fundamental liberties and they do help secure other goods,such as education, security, and sanitation, that serve as necessaryconditions of our happiness.
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First, recall that Mill distinguishes between harm andmere offense. Not every unwelcome consequence for otherscounts as a harm. Offenses tend to be comparatively minor andephemeral. To constitute a harm, an action must be injurious or setback important interests of particular people, interests in which theyhave rights (I 12; III 1; IV 3, 10, 12; V 5). Whereas Mill appears toreject the regulation of mere offense, the harm principle appears to bethe one justification he recognizes for restricting liberty.