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.
Richard A. Epstein, Peter and Kirsten Bedford Senior Fellow at the Hoover Institution, Laurence A. Tisch Professor of Law at New York University, and senior lecturer at the University of Chicago, researches and writes on a broad range of constitutional, economic, historical, and philosophical subjects. He has taught administrative law, antitrust law, communications law, constitutional law, corporate law, criminal law, employment discrimination law, environmental law, food and drug law, health law, labor law, Roman law, real estate development and finance, and individual and corporate taxation. His publications cover an equally broad range of topics. His most recent book, published in 2013, is The Classical Liberal Constitution: The Uncertain Quest for Limited Government (2013). He is a past editor of the Journal of Legal Studies (1981–91) and the Journal of Law and Economics (1991–2001).