This is the second in a small series of posts that explain a little of what I try to do in my recent book, Toleration. The first post is here.

Libertarians are minarchists or anarchists. That is, we favor a social, political, legal system with either no government or with minimal government. I have long been–and still remain–on the fence about this. I am more interested in what justifies interference in individuals’ lives than I am in who would interfere. Whether the interference comes from one’s government (federal, provincial, or municipal) or one’s employer or church, or even one’s parent or grandparent, is, for me, a secondary question. (I worry about all concentrations or power, not just governmental.) Assuming you are a rational adult, any interference (which I would, though, distinguish from rational persuasion) requires justification. (Interference with children also requires justification, but the justifications may be different.)

On my view, we need a principle (or principles) that allows us to know when interference with others–rather than toleration–is permissible. We need such principles so that we can know for ourselves if our interference with another is acceptable, if other people’s or organizations’ (governmental or otherwise) interference with others is acceptable, and if some piece of interference with us is acceptable. Without a principle (or principles), we are left with ad hoc decisions arbitrarily arrived at (just principles allow for just rule of law). With a principle, we have a clear way to determine the moral limits of toleration.

As I have suggested before, I think we have such a principle–the harm principle:

“The sole end for which mankind are warranted, individually or collectively, in interfering with the liberty of action of any of their number is self-protection … 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” (Mill 1859, 9).

As I note in the book:

The basic idea is that harm is always a prima facie reason to permit interference, whether to prevent its otherwise imminent occurrence, to penalize those who cause it, or to rectify its damage. No one wants to be harmed. Allowing interference—non-toleration—to prevent it is a good idea.

The basic idea of the harm principle, it should be clear, is fairly non-controversial. The harm principle itself, though, is controversial. This is because if we take Mill seriously in the passages he provides the principle, he tells us that harm is the sole end justifying interference, the only purpose that offers such justification. If there is no harm, on that reading, there is no cause for interference.

On my view, we should endorse a strict version of the principle such that no other justifications for interference are accepted. Most people–almost certainly including Mill—would endorse a less strict version that allows for the endorsement of other principles that indicate reasons interference may be permitted even absent any harm. In chapter 4, I spend much time going over the offense principle, the benefits-to-other principle, legal paternalism, and legal moralism. I realize that some readers will end up accepting one or more of those principles–and all have brilliant defenders–but I do advocate rejecting them all.

Many will, of course, now wonder what “harm” is.

I … follow Joel Feinberg’s analysis of the sort of “harm” that is relevant to the harm principle as a wrongful setback to interests (see for e.g., Feinberg 1984, 36).

Harms, for the purposes of the harm principle, are wrongful setbacks to interest. What does this mean? There are, obviously, two elements to the idea: wrongfulness and interest-setback [the latter can be split into 2 parts: interests and setbacks to such]. Readers will likely be concerned with the first of these and perhaps also with the second. Rightfully so. These are difficult and controversial concepts.

Of course, people will disagree about whether a specific act is a wrongful setback of another’s interests. Disagreement, though, does not mean there is no fact of the matter. Even if we don’t know what the fact of the matter is, there is one. For my purposes, we can allow that courts will sort out the details to determine of there is a harm or not. It is important, though, that only if one suffers a harm in the technical sense does one have a rightful claim against others–the state included–to interfere. If no one is harmed, no interference is permitted. (Of course, we are always free to reason with others, whether trying to persuade them to do what we think they ought or trying to dissuade them from doing what we think they ought not.)

All of this, I think is quite conducive to a libertarian view. States are to have their powers limited to those necessary for harm prevention and rectification. Benefiting people, preventing offensive behavior, preventing immoral (or supposedly immoral) but non-harmful behavior, and preventing people from hurting themselves when they do things they rationally seek to do—all reasons taken to justify interferences in the modern state—are ruled out as justifications for any state action if we take the strict version of the harm principle seriously.

Importantly, the harm principle requires (something like) the Feinbergian understanding of harm. If a branch from a tree on my property falls and hits me (and no one else was responsible for caring for the tree), I cannot claim to be harmed—for there is no wrong done me–and so no interference on my behalf is warranted. Someone who consents to ride in a car with a drunkard can’t claim to be harmed when the drunkard gets into an accident–and so no interference on their behalf is warranted (things are different, of course, with regard to someone on the side of the road or in another car can since they did not consent). No one can claim to be harmed by homosexual acts committed by other consenting adults–so no interference is warranted on their behalf. Or drug use by other adults fully informed of the results of their decisions. Or physician assisted suicide or euthanasia among the fully informed who consent. In all of these cases, those not involved are not wronged and so do not have their interests wrongfully setback (though there is no reason to deny that their interests may be set back)—are not harmed–and so no interference on their behalf is warranted. And that list of things that might be called “harms” in loser language can be greatly expanded.

I hope it is now clear that endorsing the strict version of the harm principle is quite conducive to (or just is) libertarianism. A thorough-going commitment to the principle, though, is also quite conducive to (or just is) the particular form of libertarianism we advocate on this site: bleeding heart libertarianism. More about that in the next post.