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.