Article: First, Do No Harm!

The classic Hippocratic Oath provides guidance for classically trained physicians, and a part of that oath is the declaration and admonition: First, do no harm—primum non nocere. That phrase, is not only a fixture of the modern medical oath, in contemporary debates on the basis of legislation, it is seen as perhaps the one principle or basis for legislation that will free this secular world from resorting to a universal morality.

Could the principle of "do no harm" be a sufficient basis for legislation? Let's take a look.

For this experiment, let us say we could base all legislation solely on the principle of preventing harm. We could pass whatever legislation is necessary and only the legislation necessary to protect people from being harmed. Our standard could be to not prohibit or legislate against anything that doesn't clearly harm an individual or group of people.

There is an entire political theory built on this idea. In 1859, John Stuart Mill suggested that societies do away with what he called paternalistic or moralistic legislation and only pass laws to prevent harm. He wrote, "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."

At first glance, Mill's Harm Principle seems like a plausible bases for legislation. Of course, we should legislate against harming people. And this legal basis might solve the problem of tyranny that we sometimes see when legislation is based on popular opinion or the whims of the powerful.

But there are some real problems with limiting legislation to direct harm. First, in some ways, the harm principle just takes us back to the problems of legislation by popular opinion or the whims of the powerful. Someone has to define and determine what is truly harmful.

If I start raising chickens in my front yard, my neighbors will cry foul (no pun intended). They will say that my front-yard chicken industry harms them by lowering their property value and diminishes their standard of living due to the noise and smell. I would say their opposition to my chicken farm harms me because it prevents me from making money my family needs to survive.

In this case, someone has to decide who is harming whom. This will either be decided by popular opinion or by the judgment of those in power.

Especially when you consider economic factors, environmental factors, and social factors, the line between harm and no harm is difficult to determine. If all we have to fall back on is the question of harm, then we've just gone back to legislating by the morally unreliable popular opinion or the equally unreliable whims of the powerful.

Another example of the ambiguity of the harm principle would be child marriage. If I make a business deal with my neighbor and part of that deal is that I marry off my eight year old daughter to my neighbor's thirty year old son, has someone been harmed?

You may have a strong opinion about the answer to that question, but if our only guide is physical harm, the question is not super clear.

A second problem with the harm principle is that it often doesn't protect positive values for social good. If we could only legislate against harm, then we could not legislate for public education or access to health care. The harm principle would not allow for laws against predatory lending practices.

Third, we can all name many activities that are almost universally viewed as wrong and that should be legislated against that would not directly fall under the harm principle. Unspeakable sins such as bestiality, incest, polygamy, necrophilia, prostitution, and some types of child pornography.

Finally, the harm principle would not allow you to legislate against discrimination. If I build a restaurant just for white people, that doesn't harm anyone, but it is clearly wrong.

Legislating against harm seems to be a good but very insufficient basis. I contend, that just as with popular opinion, the whims of the powerful, and cultural mores, where the harm principle does seem to be a good basis for legislation, it is because it has aligned with a higher law and a better moral basis.

There must be a higher law. More on this in my next post!

Pastor Noel