How should a society decide which actions ought to be criminalized? Personally, I’m a proponent of the harm principle. John Stuart Mill articulated this principle in On Liberty, where he argued that the actions of individuals should only be limited to prevent harm to other individuals. Self-harm cannot be criminalized. “Crimes” without victims cannot exist. The fact that many people consider some action disgusting cannot be a sufficient reason for criminalizing it. So far so good. But how do we determine what constitutes harm for other people? And what about all those cases where there is only minor harm? At which point do we decide that the harm for other people is significant enough to warrant outlawing some action?
The harm principle may seem simple on the surface. According to John Stuart Mill:
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. His own good, either physical or moral, is not a sufficient warrant. He cannot rightfully be compelled to do or forbear because it will be better for him to do so, because it will make him happier, because, in the opinion of others, to do so would be wise, or even right… The only part of the conduct of anyone, for which he is amenable to society, is that which concerns others. In the part which merely concerns himself, his independence is, of right, absolute. Over himself, over his own body and mind, the individual is sovereign.
I like this idea so much, because it tries to prevent a society from enforcing arbitrary preferences held by various authority figures. For example, in past some religious authority stated that extramarital sex or anal sex are bad, therefore these actions were made illegal. In a secular society you can no longer arbitrarily ban actions just because many people perceive them as disgusting. “Because God/priest/king said so,” cannot be an argument when deciding upon laws.
On top of that, it is reasonable to assume that each person should know better what they like and what will make them happy. People’s tastes and preferences differ. When it comes to lifestyles choices, dreams, and aspirations, one size does not fit all. There are countless examples where people’s opinions about what’s harmful or enjoyable are diametrically opposite. For example, some people believe that sex outside of wedlock is harmful for the one doing it, while others believe that it’s pleasant. Another example: voluntary sterilization. Some people enjoy parenting and want children. Being unable to raise a child would make their life significantly less happy. Other people prefer to remain childfree and don’t enjoy being near children at all. Sterilization might feel like a form of self-mutilation for a person who wants children, but it also feels like a blessing for a person who prefers to remain childfree and fears an unwanted pregnancy.
Trying to decide for other people how they should live is at best patronizing, at worst outright abusive. Patronizers tend to imagine that they are doing the other person a favor by preventing them from making a mistake they would later regret. However, there are problems with this mindset. Firstly, that’s arrogant. Secondly, regret is an unavoidable part of human experience. Regardless of what choices people make in their lives, some portion will always regret whatever they decided to do. “Why did I marry this person?” “Why did I waste four years of my life studying this subject in a college?” “Why did I buy this jacket, it looks ugly one me?” If you cannot even know what’s best for your own future self, you definitely cannot know what’s best for somebody else’s. So just don’t try to deny other adult people the agency and the right to make their own choices.
What is harmful?
Unfortunately, the harm principle has some limitations. The first problem is that humans cannot agree about what constitutes harm for other people. Many Christians believe that LGBTQIA+ prides are harmful for children, because they will witness said events and become homosexual as a result. I, on the other hand, believe that Christian hate speech directed towards LGBTQIA+ people is harmful for other people. Alternatively, I believe that deregulated banks and corporations harm the society. Many other people disagree, and believe that regulations are what harm the economy.
These were examples with victims being somewhat abstract groups rather than easily identifiable individuals. It’s harder to link a single event with a single victim who suffered as a result. This makes it harder to assess harm. Things are a bit simpler when a single entity (person, organization) directly harms a single victim. For example, a thug beats up somebody and steals their wallet. The harm is direct and clear, namely the victim suffered physical injuries and lost some money.
The problem is that even in cases where cause and effect is clearly linked people can disagree. For example, some people believe that spanking harms children and is a form of abuse. Others insist that sparing the rod means spoiling the child.
I believe that people should use scientific evidence when trying to assess harm. It’s also necessary to listen to the person who claims to be the victim. Sometimes their complaints are valid, on other occasions complaints can be dismissed. For example, when a person explains how childhood spanking caused them permanent emotional scars, I will take it seriously, because there exists scientific evidence that supports such claims. When a homophobe rants about how merely looking at openly gay people hurts their feelings, I will ignore said complains, given how the problem is this person’s own bigotry. After all, with gay sex or masturbation, it is obvious that there is no scientifically proven self-harm (no, hair won’t start growing on your palms, and God will not strike you with a lightning bolt as a punishment for your sins). There is no harm for the society either (no, God won’t cause earthquakes to punish the whole society for tolerating gay sex).
What about minor harm?
There are also situations, where tangible harm can be detected, but it is considered relatively minor. For example, should smoking be allowed in public places? Passive smoking definitely harms others, but the harm is rather small. How much noise should people be legally allowed to make? Should they be allowed to make noise at night? Should they be allowed to install lights that shine straight in their neighbors’ bedroom windows at night? I find it hard to pick a threshold, where some action is harmful enough for the society to warrant banning it.
On other occasions the harm is rather significant, but outlawing some actions would cause other major problems. I happen to live in an 800 years old city with narrow streets. Car traffic is a problem here, and air pollution is routinely higher than the EU regulations demand, the main problems being NO2 (nitrogen dioxide) and PM10 (particulate matter with a diameter of 10 microns). Air pollution is strongly linked with various health problems, so the harm is clearly there. However, outlawing cars in the city centre or at least severely limiting their number would cause other problems by limiting people’s mobility. Thus even though car owners harm other people’s health, the problem is generally ignored (personally I do support restricting car traffic in cities with air pollution issues).
What if only some individuals harm other people?
Consider, for example, recreational drug usage. Statistically, frequent drug users are more likely to harm other people compared to the general population, and said harm stems from their drug habits. Drunk driving, drunken bar fights, intoxicated people committing various other crimes… With potentially addictive substances, some people are bound to develop addictions. Addicts often harm their family members. If they are addicted to some substance that is expensive, they are likely to resort to stealing, because it is impossible to earn enough money by working legally.
Yet despite these potential problems, many people are perfectly capable of using said potentially addictive substances responsibly, and they do not cause any harm to other people. Thus it seems unfair to limit some person’s freedom just because they belong to some group that is statistically more likely to cause some problems.
Outlawing some action versus merely discouraging it.
It should be obvious that criminalizing self-harm or merely some action that might be (questionably) self-harm is a bad idea. Even somebody who believes that “smoking weed constitutes self-harm” and that “society should ‘help’ weed lovers by making them stop,” should not also claim that “putting a weed lover in jail improves their life and helps them.”
A question that does regularly show up in these kinds of discussions is whether people should do other things (besides jail time) to prevent others from causing self-harm. For example, some politicians and doctors argue that no doctor should provide voluntary sterilization surgery, because it harms the patient who requests it. As proof they cite surveys, which indicate that a small part of people who have obtained sterilization later regretted it. Personally, I strongly disapprove of such attitude. Basically, these people are saying, “I am smart. You are dumb. You have no idea what’s best for you. I know better. Therefore I will decide in your place.”
But what about encouraging or discouraging some action in ways that are non coercive? I think about harm principle not only when deciding which actions should be illegal, but also when deciding which actions should be merely discouraged by the society. In general, this would seem fine with me. If, for example, some alcohol addict wants to quit drinking, the society should provide them support. But it’s still necessary to be careful, because even non mandatory “offers of help” can become potentially abusive. For example, I would consider it abusive if somebody tried to kindly encourage me to live as the gender I was assigned at birth (I am not cis).
Ultimately, there are even situations, where I’m not sure about whether people should be allowed to cause harm for themselves. For example, theoretically, I believe that people should have a right to kill themselves if they want to. When severely ill people request euthanasia, it is simple—of course they should have a right to obtain it. If a patient is suffering severe pain, and doctors know that they won’t get any better, and the patient requests euthanasia, then it is obvious that a painless death is the best option for this patient.
But what about attempted suicides? On the one hand, I believe that even a young and physically healthy person should be free to choose whether to live or die. On the other hand, statistics indicate that some people who attempted suicide and got saved by doctors ended up being happy about the fact that they were rescued. I even know one guy who got rescued several times, and by the time I spoke with him, he was happy to be alive. Should doctors and society attempt to prevent suicides? My answer is “definitely yes.” After all, for physically healthy people it’s always possible to try again if they aren’t satisfied with the fact that doctors rescued them.
As you probably already know, I think that the consequentialists are just bullshit artists; they pretend as though there is some kind of “moral calculus” (oh so sciency!) that can be applied to situations that will allow them to figure out what is the best action for all involved. The reason that what they are doing is bullshit is because of hypotheticals: how do you calculate the moral impact of something that might not happen? Or, worse, what if there are multiple assessments of the impact? What if Person A says “there is a 19% chance that this thing will happen and the impact will be $12bn” and Person B says “there is a 24% chance it will happen and the impact will be 5 lives.” Those could be regarding the same hypothetical, so now how do we calculate the value of action? I would say that the consequentialists would just “argue about it a lot” which is what the rest of us do, but we don’t invoke a pseudo-scientific moral calculus to do so.
Should doctors and society attempt to prevent suicides? My answer is “definitely yes.”
You raise here another problem with moral calculus – how do you factor in an unknown likelihood of a moral event? We don’t really know if someone who says “I feel suicidal” will attempt anything, so if we intervene we are intervening against a hypothetical. It may be worth doing that, it may not. Like you, I would incline to intervene if I thought I could be positive help but that’s all nothing more than my opinion; I have nothing to fall back on.
I have always wondered about the euthanasia aspect for someone who suffers from anomie. Let’s say I’m just tired of getting out of bed in the morning and it occurs to me that I wouldn’t have to clean up my workshop if I just ask for the forever-sleep pill. If I go to a doctor and say “I want to die” and they try to talk me out of it, it’s really the same moral problem as if I go to get a vasectomy and the doctor tries to talk me out of it. In both cases I have made a decision and have done my own moral factoring, and decided I want to do something – they are specifically rejecting my reasoning, which was made in compos mentis.
This is all tricky stuff. The main point to me is that calculus involving hypotheticals requires a form of math that has not been invented yet. 😉
Marcus @#1
Of course, I agree with everything you said, but the problem is that people have to make decisions somehow. Refusing to make a decision, because I cannot accurately predict all the consequences, is still a decision. Doing nothing or following some default/traditional course of action also has consequences. When people at least try to think about what they should do, usually the outcomes are better than if they just do whatever the Bible suggested.
Notice that I didn’t propose trying to figure out what will happen in the future. I proposed looking at existing data and evidence in order to decide what laws tend to yield the best outcome.
For example, there is plenty of existing data suggesting that allowing trans people to live as their preferred gender makes these people happier. Thus a country ought to pass laws that allow trans people to live as their preferred gender. Here I’m not trying to predict whether person X will be happier after they get some surgery. I’m not guessing possible future outcomes.
If you get yourself sterilized and later regret it, it’s not really that bad. You can use a donor’s sperm/ova for artificial insemination. You can adopt a child. Besides, a life without children isn’t really that awful even for a person who would have wanted a child. Thus this decision isn’t completely irreversible in case a person changes their mind later. Sure, it’s complicated, but people can still try to figure out some option how to lead a happy life despite their earlier mistake.
Suicide, on the other hand, is irreversible.
As someone who spent three days in intensive care and a week in a psych ward I’m usually glad I survived.
I think that another problem with suicide is that while it can be the result of a rational process, it can also be the result of disordered thinking. Speaking from my personal experience I have made the decision both rationally and when mentally disordered. I have a chronic condition that at the best guess doctors can give is something that will get worse, becoming more and more painful over time, I have made the considered decision that when it becomes impossible to control the pain without significant impact on my ability to do the things I enjoy I want to commit suicide. In the absence of a significant improvement in scanning technology and a way to cure the problem I believe that this is a rational decision, the biggest problem being that there is no right-to-die legislation in the UK, if any does become law it is likely to be very restricted at least initially, and I may not have the kind of time it is likely to take to become more general. On the other hand I’m already on medication I could easily use to kill myself with, so while not having medical help is not ideal, and I would have to arrange any attempt to ensure both that I wouldn’t be found too soon and that Mr J wouldn’t be done for helping me, I could certainly do the deed. However I have also decided to kill myself when clinically seriously depressed, and that is far harder to explain, because from where I am now there was no rationale for the decision and I can’t even remember the reasons that led me to decide I needed to commit suicide then (last January), rather than wait until the pain is uncontrollable. I do know I felt as if I’d thought everything through carefully, I’d worked out how much Tramadol I’d need to take, but I kept a promise that I made to Mr J on a previous occasion that I would check in with him before actually doing it. At the time I was so convinced of my reasoning that I was sure he would agree I was right and then was the time, I was bemused that he didn’t agree and took me to the GP. She was so concerned that she asked him to take most of my medications into work so I didn’t have access to enough to kill myself. Which is all to say that in the first case I think interferring would be wrong, in the second right, but it isn’t always that obvious that someone is ill so it can be hard.
Jazzlet @#4
That makes sense. I have never seriously wanted to kill myself (so far), but I have noticed how my whole way of thinking was different during periods of extreme unhappiness. A while later, after getting better, I would wonder about all the weird thoughts I had.
When a late stage cancer patient requests euthanasia because of pain, it is obvious that they won’t get any better. Thus helping them die painlessly makes sense.
But when a depressive person wants to die, there’s a probability that if they manage to hang on for a while, they could get better.
This comment section sure turned out grim. Here I was trying to explain a framework that I personally find useful while debating with other people about what laws some society should pass. Religious people routinely want various laws that limit other people’s freedom, and I believe that “there can be no victimless crimes” is an excellent counterargument. For example, some believers want to outlaw voluntary sterilization, and I can reply with, “laws should only prevent people from harming others, what they do with their own bodies is each person’s own choice.” I find this is a very useful argument that works in many situations. Arguments for various discussions are something I’m competent to talk about.
Suicide, however, might not be a topic I should discuss. Normally I do express opinions also when I’m not completely certain about my own competence, but given the nature of the topic, this time, if I say something clueless, I might potentially make some other person feel bad.
Suicide, on the other hand, is irreversible.
Nobody who has suicided has ever come back later and expressed regret, though patients who have had sterilization procedures have expressed regret. In fact, the survivors of suicide attempts are a self-selected sample that is more likely to include those who have regrets. What if the successful suicides would be fairly content with the decision if we could somehow ask them?
But what I really want to argue with is your apparent view that we must rationally decide such things. Why not be arbitrary? Our decision-making appears to me to generally be opinion, arbitrary, and inadequately informed. Why not just own that and stop fooling ourselves?
Going back to the OP and some interesting questions —
There was a study that came out today that you may have heard about regarding Obamacare. They were going to send out a letter telling a large number of people that they needed to get insurance under Obamacare, but they didn’t have enough money budgeted for the mailing, so they sent it out to a random subset. That created an ideal large-scale experiment for finding out whether health insurance actually saves lives — no surprise, it turns out it does.
Andreas, how does Obamacare fit into your moral calculus? It may be a freely undertaken decision that “I will save money by not buying insurance and planning not to get sick,” but there are societal costs to having to deal with sick people who have run out of money as well.
brucegee1962 @#8
I don’t really have a moral calculus. It’s more like “this action seems to make sense while this one doesn’t,” or “this action seems to be beneficial/harmful for some sentient beings.” There are a few criteria that I try to take into consideration (fairness, equality, freedom, does something promote the wellbeing of sentient creatures), but I have nothing even close to a coherent moral calculus.
Anyway, I am not American, and I’m only vaguely familiar with Obamacare. I have heard that USA healthcare system is an abomination and that Obamacare tried to at least somewhat improve it.
Personally, I prefer state-funded healthcare in state-owned hospitals. The problem with private insurance companies and private hospitals is that they are designed to squeeze as much money as possible out of every patient, the system isn’t designed to help the patient, thus everybody who is poor cannot access healthcare. Never mind that healthcare costs in the USA are higher than anywhere else in the world. After all, the system needs to sustain all the share holders and CEOs of every insurance company and clinic. Thus, even when the government subsidizes health insurance for poor people, the system still remains ridiculously expensive and inefficient. Of course, I have witnessed plenty of corruption and blatant incompetence in state owned hospitals, but at least the for-profit incentive is somewhat lessened.
Personally, I do not have a health insurance. Latvian healthcare system is, well, interesting. All healthcare for children younger than 18 and pregnant women is 100% state funded. For the rest of the population, it depends on what diagnosis you have. The state pays for some treatments but not for others. Going to my family doctor costs me 1.42 EUR, because the state covers most of the expenses. Last time I went to a dentist, I paid 200 EUR, because the full cost was out of my own pocket. Half a year ago my mother needed a minor surgery. She paid about 5 EUR for the surgery itself (state funded). Afterwards, each time she needed to change the bandages, she paid about 20 EUR for it (not state funded).
Private insurance companies offer health insurance in Latvia, but it is not worth it for me. No insurance company ever pays dentist bills. No insurance ever pays for gender reassignment treatments (the state doesn’t fund those either). Thus even if I got some health insurance, I would still have to pay from my own pocket for pretty much all of my medical expenses. Health insurance would pay 1.42 EUR for my visits to the family doctor, but I don’t really need that. As for getting hurt in accidents, the state usually funds that, at least partially.
This sounds like blaming the victim. In the USA, the people who don’t buy health insurance do so, because they cannot afford it. It’s state policies and corporations that deliberately keep a significant portion of the population below the poverty line. You cannot blame a poor person for not buying health insurance. Nor can you blame them for getting sick. Neither is their fault.
Marcus @#7
I don’t think I’m fooling myself. I understand that my decisions cannot be rational. I do not know what will happen in the future. I do not have access to all relevant currently existing data. My thinking is influenced by my attitudes and biases. Thus I’m just trying to make the best decision I can given my limited mental capabilities.
I guess at this point I should ask you what exactly you are proposing when you suggest acting arbitrarily.
This is how I understand this word: Gay rights activists demand marriage equality. The prime minister flips a coin, “Heads, sorry, but we won’t pass the law you just demanded.”
I assume that you cannot possibly propose something like that.
Moreover, whenever people don’t at least try to think about what to do next, they usually just end up following some “default” course of action. Usually, “default” means “traditional,” which means doing whatever the local religion considers appropriate. This is how you end up abusing various minority groups.
The way I look at this, my framing for what I think is meant by this idea is the old adage about “Your right to swing your fist ends where my nose begins” – see discussion and investigation here :
https://quoteinvestigator.com/2011/10/15/liberty-fist-nose/
I think everyone should be free to do as they wish up to the point where that starts hurting or endangering or making the world worse for others which is, I know, a very broad thing. I would even extend it to the wider world eg. causing harm by litering incl. releasing balloons and having uncontrolled Greenhouse Gas Emissions. Protecting biodiversity and other living things could be an extension of this too maybe – as suggested here :
https://medium.com/@TheAnimalist/what-is-animalism-dc1bb9f9f822
With the concept of animalism ie expanding humanism to cover other sentient species alhough that then runs into the issue of how do we define other sentient species and what levels do we draw the lines at? In addition to the clashing animal rights of, say, the cat that owns me vs the creatures it kills.
For me, a case study comparison on this ethics harm principle is to compare the lack of harm yet enormous over the top outrage caused by the incident where Justin Timberlake ripped off part of Janet Jackson’s clothing very briefly revealing part of her breast at the SuperBowl :
https://en.wikipedia.org/wiki/Super_Bowl_XXXVIII_halftime_show_controversy
Versus politicians and polemicists like Andrew Bolt (Aussie media polemicist) or Rush Limbaugh, Tucker Carlson etc .. lying and deliberately misinforming people over many years about scientific reality eg. on Global Overheating. (“Warming” is too mild a word in my view.)
In the former case, despite the overheated and rather absurd levels of outrage from the “conservative”” (Regressive) side of politics esp in the USA, what actual possible harm was done? There was the emotional distress caused to Janet Jackson and unfair damage done to her reputation and for me that’s pretty much it. If any children were upset surely it would be by the parent’s reactions and not because they didn’t realise that Humans have breasts; a fact most would probly be aware of already. Yet that single incident generated so much attention and forced changes to actual laws whereas the latter case goes virtually unoticed especially by the victims (albiet usually willing victims) of the misinformation.
In the latter case, people’s views are shaped and they go on to influence others to take actions that have extremely serious global consequences. The spread of say Climate Denialism or transphobia and other bigotries directly and indirectly makes us all so much worse off and yet it has become a sort of background that gets shrugged off as “freezepeach!” Which takes us off on another tangeant again but anyhow..
My view is that deliberately misinforming people in the way that a lot of reichwing politicians and media does should be considered a criminal harm and discouraged with serious consequences and penalties. Ditto failing to act to reduce Global Overheating. However, there’s no indication of that happening currently is there?
FWIW. I also support euthanasia and mental healthcare and efforts to prevent needless suicides by people whoaren’t thinking properly.
StevoR @#11
Yes, that makes sense.
The problem is that when one person uses his hand to rip off another person’s clothing, it’s easy to prove cause and consequence.
When a single person, especially somebody who is the average citizen, not famous or influential, utters some sentence that promotes a bad idea, it’s much harder to directly link it with a bad outcome. The person can always say that “they were just joking,” or “other people shouldn’t have taken their words seriously,” or something like that.