Oldal 340 [340]
ANDRÁS SAJÓ
Harm and its competitors
As mentioned above, Mills standard understanding of harm is that it is direct and
substantive, an actual impediment to liberty, the exercise of a right. Legitimate
harm (a harm that is caused lawfully, for example originating from a true, or lawful
statement) is no ground for restricting speech. If the famous corn dealer is accused
of speculation and suffers a financial disadvantage, that is no ground restricting
speech (unless the opinion expressed is libelous).
Harm is contextual. Smoking, as long as it causes harm to the smoker only,
cannot be restricted, for there is no harm to the right of others, self-harm
pertaining to the scope of autonomy. However, where health care is socialized,
extra health care costs due to smoking justify intervention, since it causes harm
to the financial interests of the health care community (unless this is covered by
extra contributions of the smokers in their health plan). But even where there is
harm to others, in light of proportionality considerations criminal sanctions are
not necessarily appropriate. The smoker is using his liberty right, but the acts of
disapproval (including coercive measures of the state and social sanctions like
stunning and reprobation) are not acts of disrespect: these are the legal and social
consequences of his autonomous choice, foreseeable and not arbitrary per se.
Smoking has a high likelihood of causing harm to bystanders and (in the form
of externalities) to society through self-harming, yet the relationship (causation)
can be very indirect or even speculative.
It is argued that smoking and drugs, or (compulsive) gambling harms the
family. But such assumptions are speculative regarding identifiable individuals,
even if statistically well founded. In some families the causal effect is demonstrable
(as gambling impairs the family livelihood); in other families it is non-existent.
Statistical assumptions hardly satisfy the individualized harm concept; the general
prohibition of a self-regarding harm due to cumulative probabilistic effects is
statistical paternalism. But this remains a fundamental contradiction of Mill, who
besides individual actual harm as the only basis for coercive restriction, recognizes
collective self-preservation and therefore, implicitly, the collective being harmed
(or running the risk of harm).
Of course, it is hardly objectionable to create a barrier or a bump to reduce
the number of road accidents or to put in place work safety measures (even if this
limits the freedom of the entrepreneur owner and even that of the employees who
would like to increase their productivity as a matter of choice by disregarding the
safety measure that makes their work more cumbersome).!! Liberty is limited
(though not in excessive way as liberty aims can still be achieved) to reduce
1 I follow here Joseph Raz, The Morality of Freedom, Oxford, OUP, 1986, 378.
+ 338 *