To: Ian H.
From: Geoffrey Klempner
Subject: Harm principle in the 21st century
Date: 4 February 2002 13:15

Dear Ian,

Thank you for your e-mail of 22 January, with your first essay for the Associate Award, 'The Harm Principle in the 21st Century: Trouble at Mill?"

This is a solid, well argued defence of Mill's 'Harm principle' against the objections most frequently levelled against it. As you say near the beginning, the result is not to call into question the Harm principle, but rather refine our appreciation of what the principle actually involves.

As it stands, without any improvement, the essay looks to me on the borderline for an Associate Diploma pass (60 or above). I anticipate that the examiner would say that you have possibly not given sufficient credit to the strength of the objections, although your responses are along the right lines.

Let me suggest, under your own headings, a few points that might be considered further:

1. Vagueness. I am not sure that it is correct to represent the question of when offence becomes harm as merely a question of vagueness of definition. There is a more fundamental question at stake, namely, whether the offended individual is *right* to take offence. For example, someone with strong views about homosexuality might be extremely upset to see, e.g., homosexuals demonstrating affection in public, to the extent that the offended individual can legitimately claim to have been 'harmed'. If a defender of Mill says what one would be naturally tempted to say about this case, that the offended individual has no right to take offence, then the objector will respond that the intuitive appeal of the Harm principle is lost. Before we can apply the Harm principle, we need a quite separate principle to decide whether or not a given instance of harm is legitimate or illegitimate, and this cannot be determined simply on the basis of the extent of harm.

What the defender of Mill ought to say is that mere violence done to one's moral beliefs can *never* count as 'harm'. This is the point about the liberty of thought and discussion. So we retain a clear demarcation line. Your example of the Taliban illustrates this point. All I am saying is that you need to make it explicit.

However, that does not take us all the way to the conclusion that we want. Mill wants to defend the idea that there are certain actions which for the sake of public decency and decorum, ought to be kept behind closed doors. It is rather more tricky to state what the limits are here.

Incidentally, if you are mentioning Devlin, you might also mention that Devlin's view, in 'The Enforcement of Morals' was strongly contested by H.L.A. Hart.

2. No man is an island. There are two different ranges of question covered by this heading. The first, which you discuss, is raised e.g. by laws which say that motorcycle riders must wear crash helmets. Why shouldn't pedestrians be made to wear crash helmets, assuming that it led to a reduction in fatal casualties in car accidents where pedestrians are involved? The answer is that there is a borderline, which is difficult to formulate clearly, where on the one side society is prepared to pay the price of individual freedom, while on the other side it is not. The question is how one decides where to place that borderline, and on what principle.

There is another range of questions concerning personal and public space. For example, if I cook my favourite curry, it will be impossible to prevent my next door neighbour from smelling the spice. Arguably, this is not a reason to call the police, whereas my playing my stereo at full volume at all hours is a reason to call the police. Once again, a price has to be paid for individual freedom, but there are limits which need to be defined on some intelligible principle.

3. Liberty and utilitarianism. The crucial point here is covered by the section in 'Utilitarianism' where Mill discusses the value of individuality ('On Individuality'). A explicit reference to this section would help cap your argument.

You might show some awareness that there has been considerable controversy on the question of whether Mill actually changed his views - under the influence of his wife - in between writing his two essays. I side with those who say that Mill did believe, not only that utilitarianism and the liberty principle were fully compatible, but that liberty of thought and discussion was the condition for the possibility of a society where ethical questions are decided by appeal to the utility principle.

Conclusion. Because vagueness is not the only charge laid against the Harm principle, it will not do as a defence of the Harm principle to say that a term with fuzzy borderlines can still function effectively. So you need to say a little more here to remind the reader of the other points you have made.

All the best,

Geoffrey