In a recent piece for the Daily Sceptic, David Martin Jones and Michael Rainsborough object to the attempt by medical ethicist John Harris in the Telegraph to co-opt the famed liberal-utilitarian philosopher J.S. Mill to the side of mandatory vaccination. Mill was a keen defender of individual freedom, but allowed that actions which affect others may be regulated by Government. Harris argues that for a person to refuse vaccination constitutes, using Mill’s words, “a positive instigation to some mischievous act”, and thus is not a protected form of personal discretion.
Jones and Rainsborough object that this misrepresents Mill, who rather held that conduct may be prohibited under his famous ‘harm principle’ only if it is “calculated to produce evil to someone else”. This formulation of Mill’s principle suggests it is only intentional (“calculated”) harm to others that Mill thinks may be prohibited, while unintentional harm escapes the scope of coercive regulation.
But does Mill really hold that it is only intentional harm to others that may be coercively prohibited? It’s hard to square that with the following statement of his principle, found in the same essay (emphasis mine):
For such actions as are prejudicial to the interests of others, the individual is accountable, and may be subjected either to social or to legal punishments, if society is of opinion that the one or the other is requisite for its protection.
Plainly, actions that are “prejudicial to the interests of others” are not only intentional ones, as many unintentional actions can be prejudicial to others’ interests. Furthermore, Mill here is saying that it is up to “society” to determine whether, given such prejudicial action, some measure or other is “requisite for its protection”. It is therefore hard to see how an appeal to an action being unintentional can save it from coming under the scope of “harm” for Mill and thus subject to the control of “society”.
Besides which, Jones and Rainsborough themselves allow that Mill, as a “utilitarian and a moral consequentialist” would “quite possibly”, in the modern context given the existence of socialised healthcare, have argued that “if a responsible adult refused the vaccination the NHS offered to prevent an infectious disease, the individual would either forego any right to NHS treatment or be required to pay the cost of his care”.
Alternatively, Mill may well have just argued that “society” was entitled to determine that refusing vaccination in a context of socialised healthcare is “prejudicial to the interests of others” and so, under his principle, accountable and punishable. But even if Mill would personally have declined to make such an argument, there is nothing to stop others doing so on the basis of how he defined the principle, as John Harris has done.
The underlying problem here is with the harm principle itself. The notion that merely protecting ‘purely self-regarding’ action from social regulation and interference will guarantee individual freedom is, in the end, fundamentally mistaken. Such a category is far too narrow – or at least can be construed as far too narrow – to allow any real scope for freedom once “society” is given the right to determine what is “prejudicial to the interests of others” and thus subject to “punishments” according to its discretion.
What is needed, rather, is an underlying commitment to personal freedom notwithstanding that such freedom will often impinge on others’ interests in certain ways.
For example, many people may regard it as “prejudicial to their interests” to be offended, criticised or disliked. Or to be rejected, failed or disadvantaged by being bettered by others. Or (in a Marxist vein) to be subject to unfavourable power relations arising from inequalities in wealth or status. Or (to take the topic of the present article) to be infected with contagious disease or have public services burdened due to other people’s choices. Or to live in a society where people have easy access to ‘misinformation’. Or to experience a damaged natural environment. Indeed, it’s evident that all the currently most contested political issues relate to how our choices affect other people. And while Mill himself distinguished between “harm” and “offence” and argued that causing offence should not be prohibited, others may not agree with the niceties of this distinction, and anyway many of the current contested topics would not come under Mill’s definition of “offence”. Thus a principle that confines itself to defending purely self-regarding action is of almost zero assistance in these debates and a poor guarantor of freedom.
This is why we need a principle that defends freedom, not only when actions don’t affect others, but including and even especially when they do. We need a commitment to freedom that permeates all the necessary considerations of how to manage the fact that the interests of others are frequently engaged by the ordinary exercise of people’s freedom.
Consider vaccination. Let us grant that the Covid vaccines offer some protection against serious disease, at least for a while. In the context of socialised healthcare it is then useless to deny that something that significantly improves health outcomes may legitimately be construed as engaging the interests of others, and so is not purely self-regarding. This means the harm principle is of no help to us, as anything not purely self-regarding is handed over by it wholesale to “society” to determine the “punishments” required to address the prejudicing of the “interests of others”.
What we need instead is a deeper commitment to freedom that respects the individual’s autonomy over his or her body, notwithstanding that it may in certain ways be “prejudicial to the interests of others”.
When political declarations historically have set out rights to freedom of speech and assembly, to property, to self-government and so on, they have done so notwithstanding that the advancement of these rights will in many ways be “prejudicial to the interests of others”. Our cherished freedoms of speech, assembly, property and so on are not contingent on the idea that the “interests of others” will never be prejudiced by upholding them, but rely rather on the idea that respecting individual freedom is more important than never offending, upsetting, burdening or disadvantaging others in some way. Of course, the impacts of freedom on others need to be monitored and managed politically and legally. But for liberty to thrive such an enterprise needs to be done in a way which, at its core, treasures freedom above the feelings of others, and isn’t afraid to prefer individual liberty to the protection of “interests”.
In other words, we don’t need a harm principle; we need a freedom principle.