Reconciling social distancing with Mill’s ‘harm principle’

The term ‘social distancing’ has raced into the everyday lexicon with remarkable speed – matched only perhaps by the spread of the virus which has necessitated its use.

Borrowing the more correct terminology of the World Health Organisation, ‘physical distancing’ is the idea that mass gatherings should be cancelled, schools and non-essential business should be closed and social interaction limited so as to prevent the spread of pathogens between individuals and as such, it is seen as one of the most effective non-medical interventions for containing pandemics.

 

Current usage and history

Queuing to enter the supermarket these days, one must take extra care to line up along the pre-laid out yellow stickers that adorn the pavement outside most establishments that find themselves still open. This is to ensure that 2m distance is kept between patrons as they wait to be nodded through by the new ‘supermarket bouncers’ of the C19 era.

Cataclysmic events force change at rapid rates. Just look at how our everyday lives and societal standards have changed to adapt to our new reality. Up until a few weeks ago, rent freezes were unconstitutional, mortgage defaults unthinkable, home-schooling unpalatable and hand sanitiser was rarely found outside of hospitals or the houses of our more germaphobic friends.

But not all change is bad. Many of us have adapted quite well to working from home and indeed, many Irish companies were already allowing for a certain degree of flexible or remote working prior to the pandemic. What was previously seen as a luxury has now become the only way to work in many industries and as such, it has been speculated that a ‘remote working revolution’ may follow after the present crisis is ended.

Social distancing has been put to use before. During a rather fierce polio breakout in 1916 which led to over 6000 deaths across America, New York City was all but shut down. History also shows that where distancing measures have been delayed, a higher death rate usually follows. At the height of the 1918 Spanish Flu pandemic, the city of Philadelphia held a parade of some 200,000 people, causing the city's thirty-one hospitals to become overwhelmed, leading to a higher rate of morbidity in this city than elsewhere. The downside to this is that many cities recorded a second outbreak when normal life resumed after the distancing measures were lifted.

Therefore, it is fair to say that while social or physical distancing may be counter-intuitive, awkward and damaging to the economy, it has proven successful in reducing mortality rates and protecting frontline workers from the chaos of overwhelmed hospitals in previous pandemics.

 

Where does Mill fit in?

John Stuart Mill was an eighteenth century British philosopher and parliamentarian who came to prominence following the publication of his treatise, On Liberty in 1859. This was swiftly followed up with what is considered to be his masterwork, Utilitarianism in 1861. We will confine ourselves to the former for the purposes of this article, as it is in this work that he conceived of the ‘harm principle’, a rather genius mechanism for deciding on the limits which may be placed on the freedom of individual persons. He wrote:

‘The only purpose for which power can be rightfully exercised over any member of a civilised community, against his will, is to prevent harm to others.'

This snippet from On Liberty perfectly encapsulates Mill's thinking on when the State may rightfully use coercive measures to compel alterations in behaviour - only where there is a risk of harm to others, never where the conduct may only injure the person themselves. It is also worth noting that Mill distinguishes between harm and offence. Restrictions on liberty are never permissible where mere offence is risked. Harm is conceptualised as that which is injurious to others physically or to their interests. That said, Mill backs away from offering a clear definition of what constitutes harm, save for differentiating it from mere offence.

Boiled down, the harm principle is about drawing a distinction between conduct that is self-regarding and that which is other-regarding. Harmful conduct that injures only the person partaking in this act is said to be self-regarding, whereas harmful conduct carried out by an individual which carries a risk of harming others is other-regarding. As Mill sees it, regulating conduct that is purely self-regarding would be too paternalistic – save where the injurious acts are done publicly. The logic of drawing this distinction is that doing self-regarding harmful like drinking to excess in the eye of the public ‘is a violation of good manners, thus coming within the category of offenses against others.’

The small distinction between self and other-regarding acts has informed a lot of modern health policy and naturally, many of the public campaigns around the coronavirus have urged young folks who may not fear for their own health to remain indoors for the sakes of vulnerable persons, whose immune systems may not be strong enough to head off the virus. This is a means of turning a risk of harm that is self-regarding, contracting the virus yourself, into one that is other-regarding – ie, transmitting it to vulnerable persons. In this way, the public campaigns around C19 have been quite similar to those which aimed to clamp down on smoking which too was turned from self to other-regarding with the increased emphasis on ‘second-hand smoke’.

Another example of where a self-regarding act has been turned into an other-regarding act to justify restrictions being placed on liberty can be observed in the mid-2000s advertisement campaign encouraging motorists to always wear their seatbelts - 'it was the one without the seatbelt who did all of the damage'. 

 

Conclusions

In summation we can see that moving an action from self-regarding to other-regarding is an effective way of ensuring compliance with an onerous measure that is in the public good, like social distancing, which in turn will help us to control the pandemic and hopefully get back to normal as swiftly as possible. Who said legal theory was irrelevant?

 

 

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