As a moral claim, the harm principle is not neutral with respect to competing conceptions of the good. Underlying it is the conviction that the good for human beings is to live according to one’s own conception of what is good, and to live in a society in which that freedom is protected. For the sake of this conception of the good, it requires the repeal of legislation enacted by those with a different conception of the good. It thus deprives them of their right to choose and live according to their own conception of the good. In effect, libertarians wish to compel other persons with whom they disagree to live in a society that these others find, often with very good reason, to be hostile to human flourishing.
Further, the harm principle is neither self-evident nor demonstrably true. It certainly cannot apply to children and mental incompetents, as Mill himself knew, and this concession significantly undermines the principle.
The greatest objection, however, is the narrow construction Mill gives to it. For him, as for other libertarians, the principle only applies to bodily harm. But why deny the existence of moral harm? If it is true that some actions are intrinsically self-destructive or self-corrupting, then it is also true that encouraging such actions can cause harm to others. Prostitutes, panders, pushers, and pimps all profit from the moral corruption of others. Why should society be forced to treat these actions with indifference because of a questionable moral claim like the harm principle?
5. “Conscription is Slavery, and Taxation is Robbery.” This is Murray Rothbard’s succinct summary of the anarcho-libertarian objection to politics. Anarcho-libertarians are opposed to conscription and taxation on principle. What gives people calling themselves “the state,” they ask, the moral right to do that which, if done by “private” persons, everyone would call criminal? (Rothbard, consistent to the point of absurdity, would even prevent parents from restraining their run-away toddlers.) Because non-anarchist libertarians also regard all coercion as evil, this objection presents some difficulty for them.
Conservatives do not regard coercion as evil, simpliciter. Some limits liberate. Human beings enter the world utterly dependent, and they require for their security and development the authoritative and sometimes coercive direction of parents, teachers, police, soldiers, and judges. There are many subtle threads of coercion, conservatives argue, that make social cooperation possible.
Outside the bounds set by natural right, however, coercion is tyranny. It has been the greatest achievement of Western civilization to recognize the basic human needs, interests, and inclinations that make coercive associations necessary, to carve out their rightful scope and limits, and to bring them under the discipline of reason and the rule of law. Civilization depends upon citizens (cives), members of a political association (civitas) who understand and are grateful for the gift of free government, attached to its principles, and prepared to defend it against all threats, including free riders who would exploit the system for their own private advantage. Libertarians often treat this difficult achievement like mere scaffolding that can now be kicked down for the sake of a utopian vision that has never existed and never will.
6. Virtue cannot be coerced, therefore government should not legislate morality.Coercive law cannot make people virtuous. But it can assist or thwart individuals in making themselves virtuous. Law is both coercive and expressive. Not only does it shape behavior by attaching to it penalties or rewards; it also helps shape attitudes, understandings, and character. Libertarians who doubt this point can examine the difference in attitudes toward racial discrimination in America before and after the Civil Rights Act of 1964, or the availability of pornographic materials before and after Roth v. United States (1957), or the stability of marriage before and after the introduction of no-fault divorce laws in the 1970s. The law, both by prohibition and by silence, is a powerful signal of acceptable behavior, and thus a powerful influence on character. When the behavior in question involves moral norms that are consequential for the rest of society, it is a proper object of law.