Diversity, Rights, and Harm
Reconsidering the Harm Principle in Open Societies
Suppose you’re sitting next to a lake or a river where you’ve been throwing stones in the water for an hour. I’ve been watching you for several minutes, thinking that this activity is a complete waste of time. I decide to approach and tell you to stop this nonsense, ready to use force if needed to make you comply with my request.
Most of us will agree that I have no right to do that. More generally, we should agree that you don’t have to provide any justification for your activity. What you do is your own business, I nor anyone else is entitled to ask you to provide a justification. Quite the contrary, if I happen to coerce you to prevent you from throwing stones in the water, you’re entitled to demand a justification for my interference. This is one if not the basic liberal postulate: the burden of justification falls on the interferer, not on the person interfered with. We can call this the postulate of natural liberty. No one should interfere with someone else’s action without proper justification.[1]
John Stuart Mill’s famous “harm principle” can be interpreted as a specification of the postulate of natural liberty:
“The principle is, that the sole end for which mankind are warranted, individually or collectively, interfering with the liberty of action of their member, is self-protection. That the only purpose for which power can be rightfully exercised over any member of a civilized community, against his will, is to prevent harm to others.”[2]
If, in the above example, I had seen you throwing stones at someone swimming in the lake or river, Mill’s harm principle presumably states that my interference would have been justified. Note that the postulate of natural liberty still holds. I would have owed you a justification. This justification is provided by the harm principle. In this hypothetical scenario, you’re doing harm to others and the principle provides a justification for my interference aiming at preventing you to harm others.
The conjunction of the postulate of natural liberty with the harm principle largely justifies the existence of jurisdictional rights, i.e., “individualized spheres of moral authority in which the rightsholder’s judgment about what is to be done provides others with moral reasons to act.”[3] You have a jurisdictional right to do X (or to not be prevented from doing X) when your judgment that you have good and decisive reasons to do X is itself a reason for others to let you doing X. Property rights are archetypical jurisdictional rights. But they are not the only ones. Privacy rights and rights of association are also very important jurisdictional rights that can be derived from the postulate of natural liberty and the harm principle.
They are of course well-known objections to Mill’s harm principle. The notion of “harm” itself is relative. Even if you accept the principle, it will not deliver universal and general prescriptions if people disagree about what counts as harm. In this case, the postulate of natural liberty is essentially empty, because people will disagree about what counts as a proper justification for interference. We can all agree that we should not interfere with others’ actions without justification, but disagree about what we call justification. This will especially happen if people do not perceive the world the same way for religious, ideological, gender-based, and other reasons. What some call “perspectival diversity” is largely responsible for the fact that what you view as a harmful behavior, I see as a benign act.[4]
This is particularly relevant in the context of what I would characterize as moral externalities. Consider the case of the morality of watching pornography. Many of us are inclined to see the choice of watching pornography as a purely private one. It does not interfere with anyone else’s choice and the marginal costs and benefits are fully supported by the individual making this choice. However, there are people who disagree. They point out that while watching pornography does not interfere nor directly harm someone else, it nonetheless has indirect and more widespread effects on the way women are perceived in society and how people treat them consequently. For this kind of opponent of pornography, what one is watching is not part of their domain of sovereignty because it affects others.
what we count as a normatively problematic externality depends on views about causation and what people are entitled to. Disagreement about the frontiers of private spheres is similarly rooted. There is in principle no restriction to the externality concept, especially in a non-market context. Anything can count as an externality if we are ready to adopt a wide definition of the notions of “interference”, “harms”, and “benefits”. If we claim that individuals are entitled to be preserved from such widely defined interferences and harms, the very notion of private sphere loses its meaning. If everything counts as an interference, there is no longer a separation between the private and the public. Perspectival diversity is very likely to induce a disagreement about what counts as a moral externality because different perspectives induce different conceptions of the causal relationship between acts and states of affairs and different views about what individuals are entitled. If persons disagree about what counts as a moral externality, they cannot agree on the frontiers of their domains of sovereignty.
Unsurprisingly, there are formal results that show that under perspectival diversity, any system of jurisdictional rights generates inconsistent social choices.[5] So, how do you reconcile disagreement about what counts as harm with the recognition of jurisdictional rights? An interesting approach, defended by Ryan Muldoon,[6] is to allocate jurisdictional rights based on a bargaining procedure (actual, or more likely fictitious). Jurisdictional rights are somehow similar to goods that individuals can bargain at a given rate fixed among themselves. Interestingly, the fact that bargainers disagree about the properties of the goods they are trading is not necessarily an impediment. As long as each bargainer believes, given their preferences, that they will benefit from an exchange at a given rate, they will be willing to trade. In standard economic bargaining theory, while the specific outcome may depend on contingent factors such as bargainers’ risk aversion, time preferences, or disagreement point, the general idea is that absent transaction costs, trades will take place until the “contract curve” is reached, i.e., until no mutually advantageous exchanges are left.
The idea that individuals can bargain over rights is not foreign to economics. It is indeed at the core of Ronald Coase’s (1960) “theorem” about externalities. In substance, Coase shows that in a world without transaction costs, individuals bargaining over property rights will end up on a Pareto efficient allocation, irrespective of the initial distribution of rights. In principle, what applies to property rights should also apply to other kinds of jurisdictional rights, i.e., privacy rights and rights of association. We may imagine for instance that some individuals are willing to trade on their right to free speech for (property rights on) money. In general, the “price of a right is just its social cost” where “[t]he social cost of a right is defined as the utility loss incurred by the conflicts with other right bundles.”[7]
The fact that persons do not share the same perspective is in principle not more an impediment to the trade of jurisdictional rights in general than of property rights on goods. Different perspectives will just imply that different persons do not ascribe the same value to a given right. In economic language, that means that the “marginal rates of substitution” of rights will differ from perspective to perspective, for given conceptions of the good. Exchanges will take place until all the marginal rates of substitution are set equal. In practice, this will never happen, meaning that rights will continuously be bargained.
It is unclear how this could be implemented in practice. But the bargaining approach of jurisdictional rights has at least one virtue, which is to provide a new perspective on the postulate of natural liberty and Mill’s harm principle. We know that under perspectival diversity it will not be possible to define a system of rights that fully internalize harm. Perspectival diversity implies that persons are likely to disagree about the meaning and nature of harm. By definition, others’ perspectives are not “accessible” from one’s perspective, meaning that it is impossible or at least difficult for a person to have a comprehensive view of the kind of harm that the exercise of their jurisdictional rights can generate on other persons. The internalization of moral externalities triggered by a bargain over rights helps to remedy this problem by creating a framework to improve the mutual understanding of each bargainer’s perceptions.
Overall, the postulate of natural liberty seems to push to minimize the number of non-publicly justified interferences. In this perspective, as pointed out by Muldoon,[8] while a strict interpretation of the harm principle would support a principle of minimization of harms, this would have significantly illiberal implications as it would justify many restrictions – non-publicly justified – on individual choice. Another, more egalitarian conception rather argues for balancing harms among the members of society. This approach generates fewer restrictions on individual choice and is thus more appealing with respect to the postulate of natural liberty. Interestingly it can also generate support for views that are generally classified as “communitarian”. Minorities disproportionately burdened, including in the past, should be more protected from further harm than other, less burdened parts of the population. This may justify policies traditionally viewed as unacceptable from a classical liberal perspective.
[1] The short story in the main text is a variation of the one discussed by Stanley Benn, A Theory of Freedom (Cambridge ; New York: Cambridge University Press, 2008), p. 87-8. The formulation of the postulate is also his.
[2] John Stuart Mill, On Liberty, Utilitarianism, and Other Essays (Oxford University Press, 2015), p. 12-3.
[3] Gerald Gaus, The Order of Public Reason: A Theory of Freedom and Morality in a Diverse and Bounded World, Reprint edition (Cambridge New York,NY: Cambridge University Press, 2012), p. 323.
[4] See in particular Ryan Muldoon, Social Contract Theory for a Diverse World: Beyond Tolerance (Taylor & Francis, 2016).
[5] Hun Chung, “The Impossibility of Liberal Rights in a Diverse World,” Economics and Philosophy 35, no. 1 (March 2019): 1–27. Hun Chung and Brian Kogelmann, “Diversity and Rights: A Social Choice-Theoretic Analysis of the Possibility of Public Reason,” Synthese 197, no. 2 (February 1, 2020): 839–65.
[6] Muldoon, Social Contract Theory for a Diverse World.
[7] Muldoon, p. 83.
[8] Ryan Muldoon, “Exploring Tradeoffs in Accommodating Moral Diversity,” Philosophical Studies 174, no. 7 (July 1, 2017), p. 1880-2.