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ANDRÁS SAJÓ 1his is certainly wrong from the perspective of moral philosophy. As a prejudice, it reinforces emotive argumentation, but it describes well what really matters for value changes (be they induced by moral arguments, interest, brain washing or an accident born out of social sentiment). The erosive changes are perhaps most visible in the area of the freedom of expression (although the diminishing rights (or constant erosion) of the accused in the name of fair trial is also remarkable).® While there are good moral and practical reasons for change, it was much rather the improper application of the principles that caused the injustices of the liberal order. Liberty was not equally distributed and the injustice resulting from this distortion and the disregard of liberal principles pushed many in an inferior status. However, my remarks below do not address the reasons for the changes coming about; instead, I focus on the transformation of the concept of harm, resulting in an upheaval in the regulation of speech. On HARM In the classic Millean concept, harm and other people’s fundamental rights were the limits to fundamental liberty rights. “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. That the only purpose for which power can rightfully be exercised over any member of a civilised community against his will is to prevent harm to others. His own good, »7 whether physical or moral, is not a sufficient warrant. In the Millean approach there are two considerations which, if jointly present, will justify coercive intervention of the state into liberty: harm caused to a liberty (right) of a person. Harm for Mill (most likely) means a direct invasion of a liberty (or in a more restrictive approach: right) of another. As for the second component in the Millean eguation: it is liberty (most probably meaning a liberty right) of an actual person that is harmed.* What Károly is an expert on this matter and I do not intend to carry coal to Newcastle. 7 John Stuart Mill, On Liberty, London, Penguin, 1985, 68. Of course, penalists like Käroly would attribute this position to Anselm Feuerbach. Mittermaier had enormous difficulties justifying the penalization of contraventions where the offense harmed a state interest. ® In an alternative formulation of the French Declaration of 1789 the limit of fundamental * 336 ¢
