by Richard A. Epstein
This past week saw the murder of U.S. Ambassador Chris Stevens and
three other American diplomats in Libya, while a fresh wave of riots and
attacks on American embassies and schools took place throughout the Islamic world, from
North Africa to South Asia. Clearly, the so-called Arab Spring is in disarray
as intolerance rises rapidly throughout the region.
These unnerving events should have come as no surprise. The dangers of
fundamentalism were detailed in 1995, when religious scholars Martin Marty and
R. Scott Appleby completed their extensive eight-year Fundamentalism Project for
the American Academy of Arts and Sciences, which charted the rise of
conservative religious movements around the world.
Their writings warned of the serious dangers that fundamentalism posed to
democratic institutions around the globe. Fundamentalist movements, they
argued, are marked by a strong set of interlocking hierarchical arrangements in
which power rests with a single person or group that wields absolute authority
over their subject population. On the one hand, husbands can dominate their
wives and children; on the other, religious observers must unquestioningly
follow a complex set of rules, which prevents their exposure during schooling
to intellectual and social influences from the outside that might temper their
views.
Often fundamentalism is viewed in religious and moral terms. But it is
equally instructive to think about fundamentalism in terms of political economy,
which makes the contrast between it and western democracy all the more vivid.
Fundamentalists believe that “the chosen” are entitled, as if by divine writ,
to exercise monopoly power in order to impose their beliefs. Democracies thrive
on the rival worldview that competition between different groups best allows
all individuals to decide how to optimally live and organize their lives.
John Stuart Mill & the Harm Principle
One of the most famous articulations of that view comes from John Stuart
Mill in his 1859 book On Liberty:
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 opinions of others, to do so would be wise or even right.
At the root, this principle stands for the proposition that each individual
may act as he pleases, so long as he does not infringe upon the like liberties
of other individuals to do the same. But what is the definition of harm under
the harm principle? Mill does not give a good explanation of what kinds of
activities should count as harm to others. Indeed, he makes a dangerous
concession to the misguided principle of “social authority” which holds that
[F]or such actions as are prejudicial to the interests of others, the
individual is accountable, and may be subjected either to social or to legal
punishment, if society is of the opinion that the one or the other is requisite
for its protection.
Tragically this rule undermines the force of Mill’s original proposition by
allowing “society” to form its own “opinion” of what activities should be
regarded as “prejudicial” to others, which in turn allows the notion of harm to
grow far beyond its original limited contours. The definition of “harm” becomes
so broad that it swallows the rule. What Mill had to do was narrow harm down to
those activities that contravene the libertarian prohibitions of force and
fraud.
A moment’s reflection helps demarcate the limits of this harm principle.
The principle does not refer to harm caused by general social, economic, and
political forces. At its core, it refers to physical force applied by one
person to another. The principle in question must be extended to cover threats
of force, otherwise nothing could be done to combat the robber who gives his
victim the choice between his money or his life, where threatening the latter
becomes a way to obtain the former.
Nor can the term force be construed so narrowly that it excludes spring
guns and traps that may well be released by the actions of their own victims.
The concern with fraud, for its part, must also take into account actions
of concealment and the refusal to disclose to people with whom one stands in a
position of trust. It must also embrace defamation, i.e. false statements of
fact that cause people to lose business and social associations.
The fine points in dealing with the definition of harm must not, however,
be allowed to obscure the flip side of the harm principle, which is that it is
not an “actionable” harm for individuals to do what they want with their own
property no matter how great an offense it gives toward other individuals.
The use of the quotation marks around the word actionable are intended to
call attention to the single most important feature of the term “harm.” There
are lots of harms that all of us experience as genuine losses of happiness and
utility that nonetheless lie outside the protection of the harm principle.
These harms are ones that are experienced, but for which no legal protection of
any sort whatsoever is provided. Unless this critical qualification is both
made and defended, the harm principle can, by degrees, turn into the greatest
tool for oppression on the face of the planet.
Burning the Koran vs. Burning the Flag
Exhibit A for this conclusion arises from the simple observation that
virtually all of the tumult that has arisen in recent days is due to the legitimate objections to the
burning of a Koran and the making of a low quality film that is highly critical
of Islam.
The question here is not whether the grievance is legitimate but what
remedy should be available to those who harbor it. Howls of protest are
certainly appropriate so long as they do not involve the use or threat of
force. But there it ends. It is never acceptable to use force against those who
cause the grievance, let alone other innocent individuals from the same country
who are pronounced vicariously guilty for the misdeeds of others. Stated
otherwise, the mere offense taken by one group of individuals against the
actions of another never offers a social justification for shutting down that
activity.
This issue arose in vivid form in the United States with the flag-burning
episodes of the 1980s, which led to the 1989 decision of Texas v. Johnson, in
which the United States Supreme Court threw out a one-year jail sentence and
imposed a $2,000 fine on Gregory Lee Johnson for burning a flag in front of the
Dallas City Hall to voice his protest to the policies of the Reagan
administration.
To most Americans, the flag is not just a piece of cloth, but a powerful
symbol of the values and achievements of a nation. For some patriotic
Americans, it may take an enormous amount of self-restraint to not translate
their inflamed emotions against the flag-burner into private violence. Mere
offense, however intense or legitimate, does not justify the use of private
force or criminal sanctions. Unless that line is drawn firmly in the sand, what
is left to stop people from taking the law into their own hands by using force
against those whose actions offend their core beliefs?
The Role of Tolerance
A broad definition of harm gives every group license to invoke the criminal
law or private force against those individuals whose beliefs and practices they
find abhorrent. John Locke picked the right word, “toleration,” in his famous
1689 Letter Concerning Toleration. It
takes no courage to allow the expression of views that echo one’s own, but it
takes a good deal of it to tolerate the
propagation of ideas that challenge one’s own deepest ideals.
The case for toleration thus ultimately rests on the view that competitive
harms should not be actionable in a liberal society. A world in which each
person can practice his own religious beliefs free from the control of others,
with both sides knowing they could lose converts to the other, leaves everyone
better off. Such a world involves a level of generality and reciprocity that is
never found in fundamentalist sects, who are so confident about the soundness
of their own beliefs that they are prepared to resort to force to suppress
those who oppose them at every opportunity.
Live and Let Live
Our account of the harm principle has to be narrowed, in ways that Mill was
not prepared to do, to make sure that “society’s” views do not allow a majority
to trample the religious convictions of a minority whenever it has the power to
do so.
On these matters, the universal live-and-let-live policy works far better
because each of us gains more from the ability to practice our own beliefs than
we do from the ability to suppress those whose views we hate. Stating this
position does not mean that anything goes in the expression of religious
beliefs. The same harm principle that limits the use of force and fraud by
ordinary people also limits religious individuals and groups.
It is very clear that this principle presupposes parity between religions,
where no religion gets added advantage in the public space by virtue of the
supposed truth of its teachings. Toleration gains its strength from the simple
fact that it does not require the people who put this practice into play to
accept the soundness of all, or indeed any, of the religious beliefs in
question. But therein lies the beauty of toleration, for it creates a climate
in which the respect for the boundaries of person and property offers the one
best hope for all people to live together.
In foreign relations, we must defend our vision of a just society with
confidence and vigor in the face of the Islamist threat. Religious intolerance
is inconsistent with democratic pluralism. So long as we have pride in our own
institutions, we should never stray from our fundamental proposition of a sound
political and international order.
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