Others argue that the criminalisation of some private and ‘harmless’ acts makes paternalism a hindrance to liberty and thus, it should be used sparingly or not at all utilised. Some scholars contend that the context and nuances of ‘harmful’ and ‘harmless’ are too broad and must be properly defined. Still, questions remain with regards which acts the state should criminalise and acts which the state should consider private and harmless. This paper will maintain Mill’s argument that acts which evidently harm others should be criminalised. It will further argue that consensual acts in which consent lacks validity should also fall under the scope of the law and the control of private and ‘harmless’ behaviours fall beyond the aforementioned categories and is none of the state’s business. However, the criminalisation of these acts, as Mill had argued, should not be meant to unnecessarily augment the power of the state.
In his work ‘On Liberty,’ John Stuart Mill brought forth the most compelling clarification on the distinction between liberalism and paternalism. He argues that ‘the only purpose for which power can be rightfully exercised’ over citizens, against their volition ‘is to prevent harm to others’ adding that ‘the individual is sovereign’ over himself (Mill, 24 ). However, Mill’s ‘harm principle’ has come under attacks - the most prominent of which was put forth by Arthur Ripstein. Ripstein argues that Mill’s harm principle should be abandoned as he brings forward the notion of ‘equal freedom,’ an idea derivative of Kant’s and which he believes afford the more ‘legitimate basis for criminalisation’ (Ripstein 216-219). For Ripstein, Mill’s principles fell in short in scope as it failed to include considerable ‘class’ of ‘violations’ that do not necessitate criminalisation or prohibition. He