Abstract
There is one version of John Stuart Mill’s famous ‘harm principle’ for determining the moral limits of state coercion that is virtually beyond controversy. Few would deny that it is always a morally relevant reason in support of a proposed criminal prohibition that it is reasonably necessary (that is, that there are reasonable grounds for taking it to be necessary) to prevent harm or the unreasonable risk of harm to parties other than the persons whose conduct is to be constrained. Some might deny that the necessity to prevent harm to others is a sufficient reason for state coercion on the grounds that prevention of minor harms may not be worth the social costs of state intervention. Others might deny. that the prevention of harm to others is a necessary condition of justified interference on the grounds that there are other reasons for coercion (e. g. the prevention of mere offense, or the enforcement of morality as such) that can apply even to harmless behavior. But hardly anyone would deny that the need to prevent harm to others is always a reason in support of state coercion even if it is not always a conclusive reason, and even if it is not the only kind of reason that can apply.
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Notes
In a forthcoming book I discuss these problems in detail. The problem of aggregative harms, as I use the term, arises when specific instances of generally harmful activities (e. g. drinking alcoholic beverages, possessing firearms) are often, or even usually, socially harmless in themselves. Blanket permission leads to an increase of harm in the aggregate, but blanket prohibition would interfere with harmless and beneficial as well as harmful instances of the activity. The middle road, a system of licensure, often has severe difficulties of its own. Competitive harms are incurred by competitive interests, those aimed at achieving a certain position relative to others: priority, victory, or ascendance. The persons harmed are losers in structured competitions. The problem of accumulative harms is that which stems from the familiar phenomenon where single occurrences of certain activities are harmless up to a threshold, but general performance of those activities would be harmful. Again, blanket prohibitions would necessarily ban harmless and beneficial, as well as harmful, actions.
Nicholas Rescher, Welfare, The Social Issue in Philosophical Perspective (Pittsburgh: The University of Pittsburgh Press), p. 6.
Ibid., p. 5.
Much of the material in this paragraph is drawn from my essay, ‘Limits to the Free Expression of Opinion’, in J. Feinberg and H. Gross (eds.), Philosophy of Law (Encino, CA: Dickenson Publishing Co., 1975), pp. 141-42.
Isaiah Berlin, ‘Two Concepts of Liberty’, in Four Essays on Liberty (London: Oxford University Press, 1969), p. 130 n.
Loc. cit.
I discuss these rival theories in a not altogether satisfactory fashion in ‘The Idea of a Free Man’, in James F. Doyle, ed., Educational Judgments (London: Routledge & Kegan Paul, 1973), pp. 149-151, and in Social Philosophy (Englewood Cliffs, N.J.: Prentice-Hall, 1973), pp. 5-7 and 18-19.
Berlin, op. cit., p. 130. I think that this passage in a long footnote is an aberration from arguments in the main text with which I am largely in agreement.
This term is from C.L. Stevenson, Ethics and Language (New Haven: Yale University Press, 1944), p. 203. Stevenson’s formal definition is as follows: “an end which is also such an exceptionally important means to so many divergent ends that if anything else is not, in its turn, a means to this, it will be without predominating value.” Since a person may have more than one focal aim, the definition should be amended as follows: “... if anything else is not a means to this, or to another focal aim, it will be without predominating value.”
Strictly speaking, the conflicting interests are: one party’s interest in a specific open option and another party’s interest in another specific open option. These are ‘interests in liberty’ only in the sense that they are interests in the ‘liberty category,’ as opposed, for example, to the ‘life,’ ‘property,’ or ‘privacy’ categories. Fecundity is a property, strictly speaking, of the options themselves, not of the interests.
In many of these ‘most exceptional cases,’ the party who is tempted to capture, detain, kidnap, or highjack, is driven to such desperate means by threats to his own fecund liberties that are ultimately of his own making, or the consequences of his own wrongdoing, e. g. his need to escape arrest and eventual incarceration for some earlier crime. In some other very exceptional cases, the detainer may have the justification of ‘necessity’ or forced choice of the lesser evil, as when one ‘borrows’ another’s automobile in an emergency leaving the owner at least temporarily stranded and immobile. The ‘lesser evil’ in this case could be an infringement of a less fecund liberty.
Except insofar as a woman is legally capable of committing rape herself as an accomplice to the main perpetrator who must, legally speaking, be male. This is a trivial qualification of the point in the text, and deserves at most a footnote.
Consider, for example, mandatory curfew laws, ordinances forbidding minors from purchasing alcoholic beverages or from lingering in places where they are sold, statutes prohibiting the sale of obscene books or the showing, even to audiences of willing and eager adults, of pornographic films. If such laws are justified, it is because they protect interests other than the interest in liberty, for they open nowhere near as many or as fecund options as they close.
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Feinberg, J. (1978). The Interest in Liberty on the Scales. In: Goldman, A.I., Kim, J. (eds) Values and Morals. Philosophical Studies Series in Philosophy, vol 13. Springer, Dordrecht. https://doi.org/10.1007/978-94-015-7634-5_2
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