On JS Mill and the harm principle

An often overlooked feature of John Stuart Mill’s famous statement of the ‘harm principle’ is that it refers to the ‘civilised community’: “the only purpose for which power can be rightfully exercised against any member of a civilised community, against his will, is to prevent harm to others.” So for Mill the operation of the harm principle is conditional, or at least dependent, on the existence of the civilized community. 

But what did Mill understand by this term? A useful starting point for understanding this is Mill’s essay on civilization, published in the London and Westminster Review in 1836. Mill understood the term ‘civilization’ to have a broad and a narrow sense. The broad sense was the way in which we might speak of a society as more perfect, as “happier, nobler, wiser”, as in the civilization of ancient Greece or Rome. The narrow sense was comparative: the term could be used to distinguish a wealthy and populous nation from savages and barbarians, but in doing so could also recognize that the progression of civilization might be accompanied by new miseries or give rise to new kinds of vices. 

Focusing on this latter sense Mill argued that the degree of civilization could be measured by the degree of co-operation in a society: “Wherever, therefore, we find human beings acting together for common purposes in large bodies, and enjoying the pleasures of social intercourse, we term them civilized”. Savage society was violent and power could be exercised in an arbitrary way. In a civilized society security, which he understood as the protection of individual interests, would depend on the collective arrangement of society, rather than on individual strength or courage. Indeed for Mill this was the measure of civilization, as he want on to argue that “There is not a more accurate test of the progress of civilization than the progress of the power of co-operation”. Co-operation in his view was something that was learned in the progress of civilization – the division of labour was, in his phrase, the “great school of co-operation”. Civilization brought about the diffusion of property and intelligence throughout society and taught self-control and compromise, the sacrifice of individual will to a superior purpose. 

Why does this matter? Its importance, I think, lies in the sense in which Mill was establishing preconditions. The harm principle does not apply to all, but only to those individuals and those societies which qualify. It must be understood in this sense not as a simple statement about the limits of state power, but in terms of a more complex relation. The operation of the ‘harm principle’ was linked to the division of labour and the degree of social progress, both in the sense of whether or not it was appropriate to a particular society or group within that society, and in the sense that civilization could give rise to new vices or harms. And of course the important questions then becomes those of who is to judge whether you meet the entry criteria for the club of civilization and according to which criteria is this judgment made. 

I have two further comments about this. First, it is clear that this judgment was made on the basis of cultural assumptions about the the superiority (and civilized character) of western societies. So for Mill this justified, in particular the British Empire in the Indian subcontinent and Africa as a civilizing project. Imperial rule could be despotic because the barbarians could not govern themselves

Second, once you are aware the way this distinction, you will be surprised at how often it is still used even in the present day as a means of justifying non-liberal measures. Rioting is uncivilized behaviour and the police are the the thin blue line which stands between us and the breakdown of civilization - so liberal principle s of law may be suspended. Once you look you will see many examples of this kind, which makes you think about the continuing importance of the idea of civilization.

On proportionality, harm and order

Patrick Colquhoun (1745-1820) is famous as a penal reformer and one of the founders of the modern police. He began his career as a merchant in Glasgow before moving to London in 1785, becoming a magistrate in the East End of the city - an area that covered the docks. It was his work here that prompted him to write his most famous work, A Treatise of the Police of the Metropolis, which was first published in 1796. In this book he argued for a new system of police and criminal law to address the problem of theft from the docks and the welfare of the community more generally. His proposals were adopted and a new river police force established in 1800, that was to become one of the models for the creation of the metropolitan police in 1829.

The following is quote from his book:

“It is the triumph of liberty when the criminal laws proportion punishment to the particular nature of the offence … In offences which are considered by the legislature as merely personal and not of the class of public wrongs, the disproportion is extremely shocking. If, for instance, a personal assault is committed of the most cruel, aggravated, and violent nature, the offender is seldom punished in any other manner than by a fine and imprisonment, but if the delinquent steals from his neighbour secretly more than the value of twelve pence, the law dooms him to death” (Colquhoun, Treatise on the Police of the Metropolis 6^th  edn. 1800 pp.30 & 35)

This is interesting as comment on eighteenth century criminal law. Most obviously it is a critique of disproportion in punishment and an argument for reform. The eighteenth century law is criticised for brutality (that a thief is punished by capital punishment) and for disproportion (that an aggravated assault is scarcely punished at all, and certainly not capitally). This fits with the well known picture of eighteenth century criminal law as  brutal and arbitrary.

But look more closely and there is something even more interesting going on. First, he is pointing out that interpersonal violence is not regarded as a public wrong, but something that can be settled between the parties with, at most, some lesser form of punishment. This seems alien to our modern understanding where violence is always a matter of public concern, in some way the archetypal public wrong. It is perhaps hard for us to imagine a criminal law where violence is not centrally regarded as a wrong – but that is how eighteenth century lawyers thought.

Second, it is implicit in any claim about disproportion that there is some other truer measure of proportion or the proper relation between things. Here, for Colquhoun, the proper measure is public wrong in the sense of harm to the community. The idea of harm in this sense can become for Colquhoun a measure of commensurability between different types of wrongful conduct, allowing them to be ranked in terms of seriousness. 

Finally, this is linked into the bigger claim, taken from Montesquieu, that there is a link between proportion and liberty. The proper order of the criminal law will secure a broader order. The reform of the criminal law is thus linked to the refoundation of society.

On overcriminalisation

We often like to think that the police are always keen for new criminal legislation, because it will give them a greater range of 'tools' from which to choose when doing their job. And we also often think that the tendency to over-produce criminal legislation is a recent one. In this connection then it is interesting to read the comments of C. F. G. Masterman, Liberal politician, chronicler of the state of England, and Parliamentary Under-Secretary at the Home Office from 1909 to 1912.

He recalled that Home Office principles relating to restrictive legislation were
(1) ‘Do not, unless forced to do so, make crimes out of things which are not crimes already’;
(2) ‘Do not introduce proscriptive legislation beyond the standard of conduct which will be accepted by the general feeling of the country’;
(3) ‘Do not throw upon the police a burden greater than they can bear’
(from S Petrow, Policing Morals, Oxford 1994, p.42)

On the Oscar Pistorius trial

I expect that we will be hearing a lot about the Oscar Pistorius trial over the coming weeks, but I doubt I will read anything better than this, by Margie Orford - a perfect explanation of how doctrines like self defence require a context in which they make sense.

On sexual offences

The criminal law has always regulated sexual conduct in some way. However, it has not always been the same kinds of conduct that have been regulated, or regulated in the same way, in every society, for the same ends. Even the most cursory historical survey suggests that there has been considerable diversity in the kinds and manner of regulation of sexual conduct by the criminal law. This raises questions when we come to think about how sexual offences should be regulated by the criminal law. The tendency in modern thought is to see this as a distinct area of law, to look for an organizing principle or interest that should be protected, and then to try and systematically apply this to the identification and definition of possible offences.

One immediately striking feature of the law in the area of sexual offences is that the idea of a distinct body of sexual offences is relatively novel. By this I mean that the idea of sexual offences as a distinct sub-field of the criminal law, organised around a the protection of a distinct interest or wrong or according to a central governing principle, is a fairly recent development in the criminal law. The term sexual offences was not used in any legislation in the UK until 1956, and not in the US until the Model Penal Code in 1962, and, while occasionally used as a descriptive term in treatises before this date, it was little more than a usage of convenience, a way of describing a sub-category of offences against the person. It was not until the 1970s that the idea of sexual offences began to change from being a descriptive grouping to something that reflected an underlying organizing principle - that of the protection of sexual autonomy. 

This led to some notable instances of decriminalization of consensual sexual conduct seen as inconsistent with the idea of sexual autonomy - notably the decriminalisation of homosexual conduct - and this is usually seen as the major development in this area. However, arguably the larger impact has been in terms of increased criminalization, as the recognition of this distinct interest in sexual autonomy has led to the identification of a growing range of ways that this can be infringed or interfered with. Recent legislation on sexual offences in the UK has thus criminalized voyeurism, sexual grooming of children, 'sexting', sexual interference with a corpse, possession of extreme pornography, sex with trafficked women and many more. The point here is less that of whether or not these should be crimes (many of them already were, but were not seen as sexual crimes), than to ask the question of how it is that they come to be classified as sexual offences - and more broadly to ask whether the recognition of the category might not have an expansionary logic.

This suggests that before we can take the idea of a category of sexual offences for granted and think about how it is best organised or regulated, it is necessary first to ask about how it is that certain behaviors been grouped together under the rubric of sexual offences, about the kinds of connection or thematic unity that makes this grouping possible, and about the consequences for criminalization of thinking in categories of this kind.

On theft and rubbish

This story, reported in the Guardian this morning, raises some interesting issues. According to the report, three men were taking items from a rubbish bin behind a supermarket to a value of £33. They had climbed over a wall to get to the bins and were arrested as they left the area. Initially they were apparently to have been charged with burglary, but now are being charged under the Vagrancy Act 1824.

It is easy to see why burglary might not have been an attractive charge here. The offence of burglary is defined in the Theft Act 1968 s.9. Basically it requires entering any building or part of any building with intent to steal (or commit other crimes identified in s.9 subsection 2). Climbing a wall to an enclosed back yard would satisfy the first part of this definition; the problem would be with proving an intent to steal. There are two issues here. First, the prosecution would have to prove that property belonging to another had been taken (s.5), and then they would have to prove that it had been done with a dishonest intention (s.2).

The problem with the first of these is that it can clearly be argued that property which has been thrown out no longer belongs to anyone - or that the fact that it is in a bin is at least prima facie evidence of an intention to discard the property. So the prosecution would have to prove that the food was under the possession or control of the owner. If the food had been contained in streetside bins that were accessible to the public this would surely be impossible; if they were in an enclosed yard then possession or control might be easier to establish as they would not pass out the the supermarket's control until the contents of the bins were physically removed.

However, even if this test were met, it would be difficult to establish dishonesty. It is just conceivable that the prosecution could satisfy the legal test - set out in s.2 of the Act and in the case of Ghosh). This is basically a matter of whether you understood that it would be dishonest or wrong by common standards, even if you believed your condct was right or justifiable. However, if the food were removed because of hunger, or even as a protest against supermarket practices of discarding food which could still be consumed, this would at the very least require the court to engage in a discussion of the legitimacy of such practices and the justifiability of the motives of the defendants. And if went to a jury, as would probably happen, then there is authority that dishonesty is a matter of community standards and it is quite possible that a jury would be willing to acquit.

So we can see why burglary would be difficult to prove. But the Vagrancy Act 1824? The long title of the Act gives a flavour or its style and scope:

An Act for the Punishment of idle and disorderly Persons, and Rogues and Vagabonds, in that Part of Great Britain called England

Most of the Act has now been repealed. It was notorious in the 1970s and 1980s as the basis for the so-called 'sus laws' - powers to stop and search which were used disproportionately against the black community. Remaining powers include that of the Crown Court to commit any "incorrigible rogue" to prison (s.10), and a general power under s.3 to imprison chapmen, pedlars, prostitutes, beggars and others deemed idle and disorderly persons. (I'm not making this up - you can read it here).

It would appear that the charge would be under s.4 of the Act. This is basically a long list of undesirable conduct, but includes the phrase "every person being found in or upon any dwelling house, warehouse, coach-house, stable, or outhouse, or in any inclosed yard, garden, or area, for any unlawful purpose" (a form of criminal trespass). An offender will be deemed a rogue and a vagabond and may be committed to a house of correction for up to 3 months. 

Leaving aside the question of whether there are any houses of correction anymore (we call them prisons these days), this is all very bizarre. The Act is nearly 200 years old, and nothing about it suggests that it is appropriate to our times. If the problem is with the unauthorised entering of the yard then this should either be recriminalised as a specific offence, or probably more appropriately deal with by non-criminal means - speaking to the offenders, or making discarded food available in some other place or giving it to food banks. This is a disproportionate response and it is hard to what what public interest there might be in prosecution.

 

On the understanding the history of rape

Things have been pretty quiet on the blog recently, for which I apologize. The main reason for this is that I have been busy researching and writing for my book. One of the areas that I have been working on is the history of sexual offences. I will write more about this in due course, but I wanted to write something first about the challenges of working in this area. One reason for this is because attitudes and beliefs about appropriate sexual conduct were manifestly so different from our own and it is hard both to try and understand conduct in this very different context where it may have had different meanings or significance and to disentangle modern reactions to cases from an attempt to understand the beliefs of contemporaries.

A good way to illustrate this is by looking at one of the cases I have been reading. This is the case of Barton Dorrington from 1788. You can read the whole case (it is not long) by following the link to the Old Bailey Online pages, but the brief facts are as follows.

Dorrington was charged with the rape of Eleanor Masters, a maid servant. In the words of prosecuting counsel, William Garrow, this is what happened next:

she was sent on Tuesday the 15th of May towards Bow, that was the day of Bow-fair; when she had got some distance, she was overtaken by the prisoner, who told her he had often observed her, was very much in love with her, and had a very great disposition to make her his wife; she went about her business and returned; when she returned, she found the prisoner had been at her master's house and enquired for her, and the fact is, that he did come several times afterwards, and still affected to have the same disposition towards her; he told her that he had been a shoemaker, and was now a limner [illustrator or draftsman], and in short, that he wished to marry her. Gentleman; after a considerable number of times, he came on the 16th of May, when all the rest of the family were from home; this young woman let him in and asked him up stairs into the kitchen; he went up with her, and after they had been there a very short time, he tied her hands and put a handkerchief into her mouth, and accomplished that which was his evident purpose from the beginning.

The case was complicated by two further factors. First, notwithstanding these events, when Dorrington returned to her house on the following Monday she left the house and went with him to a place (perhaps appropriately) called Foul Lane in Borough and stayed with him there for a few days, where she was ravished by him again before she was eventually found by her employer. Second, she was found to have given him a note stating the following:

"I promise to be married to Barton Dorrington on his demand, or to pay twenty pounds - Eleanor Masters."

Dorrington was found to possess a number of similar notes in similar terms from different women leading Garrow to conclude that he was a serial rapist who made a practice of attacking vulnerable women and using the promise to marry them (which he clearly never intended to keep) as a way of extorting money.

Masters was the single witness in the case. The first part of her testimony was in response to a series of questions about the attack, where she was repeatedly pressed, in the face of her clear reluctance, to describe the attack in detailed terms "in order that the jury may judge whether it was a rape or no." The second part then related to the events following when she went with him to Foul Lane because, she alleged, he threatened her. But to my great surprise, as she was questioned about being ravished again, the Court suddenly interjects to state that it is wasting time to go further and the prisoner was acquitted.

How should we respond to this case? My initial reaction is one of puzzlement, even upset. Master's story seems credible and it is hard to see why it was not regarded by the court of providing even prima facie evidence of rape. The cross-examination is upsetting, as the demand of the law for chastity and good character on the part of the victim (seemingly personified by Masters) comes into conflict with the need to describe the rape in sufficiently graphic terms to constitute proof. And in other respects the scenario just seems puzzling: why would she have accompanied her alleged attacker after the attack? Why would she have seemingly acquiesced in the demand to marry a man she had met only a day before?

And then, there is that strange note. It seems comprehensible that Dorrington might have said, as Masters testifies, that at the conclusion of the attack he had held out the offer to marry her if she said nothing to anyone. This sort of conduct seems consistent with attackers or abusers in our own time who use threats or promises to secure the silence of their victims. But then why would she have signed a piece of paper promising to marry him "on his demand" or to pay him the substantial sum of 20l - a sum of between 2 and 30,000 pounds in today's money) if she did not?

So what to make of it? One reaction might be that this exemplifies the injustice to women. This was a patriarchal system. Female servants, as single women away from their families, were vulnerable to their masters and were also easily preyed on by sexual predators such as Dorrington. She was victimized - once by the rapist and again by the courts and legal system which did not recognize her claim. This is clearly correct, but is it enough? This approach would see the history of rape as the failure to recognize justice or equality judged from our contemporary perspective, and the problem with this then it is hard to attempt to see what is going on except in these terms. Why was the case dismissed? What was the meaning of Master's conduct? Did she really believe in some way in the promise of marriage?

A second kind of reading of this case has seen it as an example of the attitudes of the courts to malicious prosecution. This approach argues that eighteenth century criminal law was dominated by the fear of false of malicious accusation, as exemplified by the comment of Sir Matthew Hale, that rape is:

an accusation easily to be made and hard to be proved, and harder to be defended by the party accused, tho never so innocent.

On this view the suspicion was that prosecutrixes would make false claims to hide sexual indiscretions, or to try and force reluctant men into marriage - or simply out of malice. The suggestion here is that, in cases such as this, the court's fear of the false accusation distorted their view of the facts. Again, there is some suggestion of this in the statement by Garrow near the start of his speech when he states (following Hale) that charges are easily made, but his approach is balanced and it does not seem that the case can be reduced to this alone.

There are other factors to take into account, and though I am not sure yet that I can weigh the proper significance of each of these, I think a fuller reading of cases such as this would have to take them into account. First, rape was a capital offence at the time, and life was not so cheap that the courts would convict in the absence of clear evidence - and it is precisely the ambiguities and doubts, particularly relating to Masters' conduct in the days following the attack which seems to have given rise to problems for the court. Because it was capital, the law of the time required the woman to resist to the point that her life was in danger (a life for a life), and though attitudes were in the process of changing the courts would not convict where there was apparently consensual sex. This is not to defend these attitudes, but how we should understand the court.

Second, it seems clear that the spoiling of good character was central to the conception of the wrong. Although, notionally, the protection of the law extended to all women, legal commentators viewed the taking of the woman's honour, her good character, as the core of the offence - leading to many lengthy discussions of whether a prostitute or an unchaste woman might be raped. But crucial to this - and at odds with our own understanding of the crime - is that while sexual behaviour was part of the crime, the wrong was not defined by sexual behaviour alone. This was an element in a broader understanding which encompassed social status and character and their place in the social order. Thus, while Masters' apparently good sexual character was probably central to the prosecution being brought in the first place, she fatally undermined her own case when she admitted to sexual conduct which put her character in question.

And this begs the question of why she went with him in the first place when she seems to have had a reasonably protective master, who sought her out when she left and most likely funded the prosecution. It seems clear after all, that the note was not enforceable and she had already told the details of the first attack to her mistress. This is where I think it is hardest to understand what is going on, but I think her conduct must be understood in relation to contemporary understandings of seduction and marriage - and certainly the court seems to think that this might have been characterised as seduction gone wrong. Maybe she did believe the promise of marriage and maybe that was part of a broader social understanding about sex. There is evidence in the eighteenth century of what we might call 'bargaining in the shadow of the law' - sexual conduct on the promise of marriage and men marrying their accusers. Such conduct seems incomprehensible to us, but perhaps makes sense in a world where sex was valued differently, where there was less connection between romantic love and sex, where courtship opportunities were severely limited for domestic servants and so on.

Unfortunately we don't know what happened to the protagonists of the case. The best for Eleanor Masters might be that she was kept in service by her family in spite of her loss of character and was perhaps able to make a good marriage; the worst that she was thrown out because of her loose morals. In spite of his acquittal, the Court was moved to warn Dorrington about his conduct in no uncertain terms:

The seduction of these young women, under pretence of marrying, is not a crime of much less criminality than that which you have been tried for; and you will some time or another get your neck into the halter, if you do not leave off these practices

We do not know if he heeded the warning, though certainly there is no further record of him in the Old Bailey Session papers. We can only hope that he did.

On the passing of the common law of sexual offences

A death notice:

The Sexual Offences (Scotland) Act 2009 (Commencement No 2) Order 2013 www.legislation.gov.uk/ssi/2013/341/made

Peacefully in their sleep, at St Andrew's House in Edinburgh on 16 December 2013, the common law offences of rape, clandestine injury to women, lewd, indecent or libidinous practice or behaviour and sodomy.

[Thanks to James Chalmers]