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The Limits of the Harm Principle

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Abstract

The harm principle, understood as the normative requirement that conduct should be criminalized only if it is harmful, has difficulty in dealing with those core cases of criminal wrongdoing that can occur without causing any direct harm. Advocates of the harm principle typically find it implausible to hold that these core cases should not be crimes and so usually seek out some indirect harm that can justify criminalizing the seemingly harmless conduct. But this strategy justifies criminalization of a wide range of conduct on the basis of the fear, worry, and anxiety it generates among those who are not the direct victims of the conduct, and thereby undermines the limiting role of the harm principle by permitting the very move it was meant to prevent: the criminalization of harmless conduct on the ground of others’ feelings about it. The best way to avoid this dilemma is to recognize that people have rights, operating independently of the harm principle, to be treated in certain ways just because they are persons. The existence of such rights provides a ground for both criminalizing conduct and limiting the scope of criminalization because these rights point both to conduct that people must be permitted to engage in (regardless of its harmful effects) and conduct that might well be criminalized (though it is not harmful). A complete account of criminal law will therefore require the harm principle to work together with an independent account of rights.

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Notes

  1. See, most famously, the central texts of the Hart-Devlin debate: Report of the Committee on Homosexual Offences and Prostitution (1957), Devlin (1965), and Hart (1963).

  2. Such as laws banning smoking in public places on the ground that second-hand smoke is harmful to non-smokers—a kind of harm that is far from new but has only recently been recognized as a basis for public action.

  3. Compare Kant (1996, pp. 29–32).

  4. See, among others, Posner (1985, p. 1195) (defining crime as “a class of inefficient acts”), Cooter and Ulen (2000, p. 428) (“An act should be declared criminal if doing so increases social welfare”), Friedman (2000, p. 230), and Kaplow and Shavell (2002, pp. 292–293). These accounts all take the criminal law to be instrumental to an economic objective, though they do not all take the objective to be the same.

  5. For a standard presentation of this argument, see Cooter and Ulen (2000, pp. 77–81). For a more subtle version that does not explicitly identify itself as economic analysis, see Simester and Sullivan (2005).

  6. I accept, for the sake of argument, that it is possible both in principle and practice to construct an Ω that measures an aggregate of everyone’s interests, though there are good reasons to doubt this. The doubters include, among others, Finnis (1980, pp. 112–118) and Sen (1985, pp. 174–181).

  7. Note that the Pareto principle does not have this feature, as it does not depend on the existence of an aggregate of well-being and counts a change as an improvement only if at least one person is made better off and no-one is made worse off. But for this very reason, the Pareto criterion is silent in the very large class of cases where a change of policy or legal rule means that one person gains and another loses. Compare Sen (1997, pp. 6–13).

  8. For related arguments against utilitarian aggregation exercises, see Williams (1973, pp. 142–143), Ripstein (1999, p. 50), Stewart (2004), and Husak (2008, pp. 188–193). These argument are all related to Rawls’s (1999, p. 24) claim that “[u]tilitarianism does not take seriously the distinction between persons.”

  9. Feinberg (1984, p. 26, emphasis in original).

  10. For doubts about whether Feinberg’s use of the offense principle to criminalize conduct is consistent with his overall project, see Ellis (1984) and von Hirsch (1986).

  11. Feinberg (1984, p. 36).

  12. For further discussion of the relationship between rights and Feinberg’s harm principle, see Duff (2001), Stewart (2001), Wellman (2005), Rainbolt (2005), and Postema (2005).

  13. See, for example, Feinberg (1992, pp. 141–151, discussing sedition, and pp. 197–259).

  14. Feinberg (1984, pp. 105–114).

  15. Feinberg (1984, pp. 143–157).

  16. Raz (1986, pp. 412–413).

  17. Raz (1986, p. 414, emphasis added).

  18. Raz (1986, p. 154).

  19. Raz (1986, p. 205).

  20. Raz (1986, pp. 308–309).

  21. Raz (1986, p. 414).

  22. Raz (1986, p. 416).

  23. Raz (1986, p. 171).

  24. Raz (1986, p. 166).

  25. Raz (1986, p. 183).

  26. Raz (1986, p. 425).

  27. Raz (1986, p. 416).

  28. Raz (1986, p. 415).

  29. Raz (1986, p. 418).

  30. Raz (1986, p. 419).

  31. Raz (1986, p. 166).

  32. Raz (1986, p. 247).

  33. Gardner and Shute (2000). The paper has been republished as the first chapter of Gardner (2007). I cite the original version.

  34. Gardner and Shute (2000, p. 196). Compare Dan-Cohen (2002, p. 55), discussing State v. Minkowski (1962).

  35. Compare R. v. Seaboyer (1991).

  36. Gardner and Shute (2000, p. 194). Less offensive examples of harmless wrong-doing could also be imagined. Consider, for example, a harmless trespass: while Victor is at work, Albert enters Victor’s house and takes a nap in Victor’s bed, without causing any damage to Victor’s real or personal property; Victor never learns of this invasion of his rights (Ripstein 2006, p. 218). Instances of beneficial wrong-doing are also not hard to imagine. My friend Bob is an alcoholic who is trying hard to stay on the wagon. I happen to know that, in a weak moment, he has purchased several bottles of Scotch whiskey. When he leaves for work in the morning, I enter his house and take the Scotch away. He never learns that I committed this act, so our friendship is unimpaired. Moreover, Bob interprets the unexplained disappearance of his cache of Scotch as a miraculous sign that he should renew his commitment to sobriety. My act, though its overall effects may well be beneficial, is theft.

  37. Gardner and Shute (2000, p. 205).

  38. Compare Ripstein (2004, pp. 12–13).

  39. Gardner and Shute (2000, p. 208).

  40. Gardner and Shute (2000, p. 216). Compare Raz (1986, p. 413, arguing that the prevention of harm is “the only justifiable ground for coercive interference with a person”).

  41. Gardner and Shute (2000, p. 215).

  42. Gardner and Shute (2000, p. 216, original emphasis). Compare Feinberg’s discussion of the reasons for and against criminalizing the consumption of alcohol: Feinberg (Feinberg 1984, pp. 193ff.); see also Stewart (2001, pp. 54–56).

  43. Here it is important to remember that, for the purposes of argument only, Gardner and Shute set aside a plausible harm-based reason for criminalizing harmless rape, namely, that “the harm principle’s standard is met if the class of criminalized acts is a class of acts which tend to cause harm, and that is true of rape in spite of the possibility of the pure [harmless] case.” Gardner and Shute (2000, p. 216, original emphasis).

  44. Compare the arguments advanced by opponents of same-sex marriage, and rejected by the courts, in EGALE Canada v. Canada (2003), and in Halpern v. Canada (Attorney General) (2004), paras. 133–134.

  45. Cf. Ellis (1984), Harcourt (1999), Smith (2006), Cane (2006), and Ripstein (2007).

  46. Hart (1963, pp. 46–48).

  47. Compare the discussion of “aggregative” and “accumulative” harms in Feinberg (1984, pp. 193–202, 225–233), and the extension of this line of argument in Kernohan (1989).

  48. Cf. Ellis (1984).

  49. Devlin (1965, pp. 14–18).

  50. He replies specifically to Cane (2006).

  51. Gardner (2007, p. 244).

  52. Compare R. v. Seaboyer (1991) per L’Heureux-Dubé J. dissenting.

  53. In this respect, Gardner and Shute’s argument is similar to the economic analysis of rape, in which it is not the interaction between the accused and the victim that matters, but the effect of that interaction on the behavior of others. Compare the earlier discussion of the economic account of harm. See also Simester and Sullivan (2005) who locate the criminal nature of theft not in the wrong or the harm to the particular victim, but in the damage that widespread theft would cause to the regime of property in general.

  54. Contrast Marshall and Duff (1998, pp. 18–21), who offer an account of how the individual wrong of rape can be “shared” by the community as a whole so as to make it a proper object of criminalization. Their account does not exclude but incorporates the wrong to the individual victim, and does not depend on the existence of the further kinds of harm that Gardner and Shute identify.

  55. Gardner and Shute (2000, p. 206).

  56. Compare Kant (1996, pp. 14, 20–21, 147–149); for recent restatements of Kant’s project of legal philosophy along these lines, see Ripstein (2004) and Flikschuh (2008).

  57. Even in the Kantian legal context, there are cases where consent would be irrelevant to criminal liability, and these cases do raise difficult issues for the criminal law of a liberal democratic state (e.g., R. v. Brown (1993)). But these do not seem to be the cases that Gardner and Shute are concerned about.

  58. The physician was ultimately found guilty of assault but received an absolute discharge. See Hickl-Szabo (1984).

  59. Hickl-Szabo (1984).

  60. I am not sure any authority is needed for this proposition, but see Raz (1986, pp. 208, 426).

  61. Feinberg (1984, p. 27).

  62. Devlin (1965, pp. 16–19).

  63. Compare Gardner (2007, p. 244).

References

  • Cane, P. (2006). Taking law seriously: Starting points of the Hart/Devlin debate. Journal of Ethics, 10, 21–51.

    Article  Google Scholar 

  • Cooter, R., & Ulen, T. (2000). Law and economics (3rd ed.). Reading, MA: Addison-Wesley.

    Google Scholar 

  • Dan-Cohen, M. (2002). Harmful thoughts. Princeton: Princeton University Press.

    Google Scholar 

  • Devlin, P. (1965). The enforcement of morals. London: Oxford University Press.

    Google Scholar 

  • Duff, R. A. (2001). Harms and wrongs. Buffalo Criminal Law Review, 5, 13–45.

    Google Scholar 

  • EGALE Canada v. Canada (Attorney General), 225 D.L.R. 4th 472 (B.C., 2003).

  • Ellis, A. (1984). Offense and the liberal conception of law. Philosophy and Public Affairs, 13, 3–23.

    Google Scholar 

  • Feinberg, J. (1984). Harm to others. New York: Oxford University Press.

    Google Scholar 

  • Feinberg, J. (1992). Freedom and fulfillment. Princeton: Princeton University Press.

    Google Scholar 

  • Finnis, J. (1980). Natural law and natural rights. Oxford: Clarendon Press.

    Google Scholar 

  • Flikschuh, K. (2008). Reason, right and revolution: Kant and Locke. Philosophy and Public Affairs, 36, 375–404.

    Article  Google Scholar 

  • Friedman, D. (2000). Law’s order. Princeton: Princeton University Press.

    Google Scholar 

  • Gardner, J. (2007). Offences and defences. Oxford: Oxford University Press.

    Book  Google Scholar 

  • Gardner, J., & Shute, S. (2000). The wrongness of rape. In J. Horder (Ed.), Oxford essays in jurisprudence, 4th Series (pp. 193–217). Oxford: Clarendon Press.

    Google Scholar 

  • Halpern v. Canada (Attorney General), 225 D.L.R. 4th 529, paras. 133–134 (Ont., 2004).

  • Harcourt, B. E. (1999). The collapse of the harm principle. Journal of Criminal Law and Criminology, 90, 109–194.

    Article  Google Scholar 

  • Hart, H. L. A. (1963). Law, liberty, and morality. Stanford: Stanford University Press.

    Google Scholar 

  • Hickl-Szabo, R. (1984). MD guilty in retarded patient case. The Globe and Mail, 23 June 1984, p. 17.

    Google Scholar 

  • Husak, D. (2008). Overcriminalization. New York: Oxford University Press.

    Google Scholar 

  • Kant, I. (1996). The metaphysics of morals (M. J. Gregor, Trans.). Cambridge: Cambridge University Press.

  • Kaplow, L., & Shavell, S. (2002). Fairness versus welfare. Cambridge, MA: Harvard University Press.

    Google Scholar 

  • Kernohan, A. (1989). Liberalism, equality, and cultural oppression. Cambridge: Cambridge University Press.

    Google Scholar 

  • Marshall, S. A., & Duff, R. A. (1998). Criminalization and sharing wrongs. Canadian Journal of Law and Jurisprudence, 11, 7–22.

    Google Scholar 

  • Posner, R. A. (1985). An economic theory of the criminal law. Columbia Law Review, 85, 1193–1231.

    Article  Google Scholar 

  • Postema, G. J. (2005). Politics is about the grievance. Legal Theory, 11, 293–323.

    Article  Google Scholar 

  • R. v. Brown. (1993). 2 All E.R. 75.

  • R. v. Seaboyer. (1991). 2 S.C.R. 577.

  • Rainbolt, G. W. (2005). Two interpretations of Feinberg’s theory of rights. Legal Theory, 11, 227–236.

    Article  Google Scholar 

  • Rawls, J. (1999). A theory of justice (rev. ed.). Cambridge, MA: Harvard University Press.

  • Raz, J. (1986). The morality of freedom. Oxford: Clarendon Press.

    Google Scholar 

  • Report of the Committee on Homosexual Offenses and Prostitution, Cmnd. 247 (1957).

  • Ripstein, A. (1999). Equality, responsibility and the law. Cambridge: Cambridge University Press.

    Google Scholar 

  • Ripstein, A. (2004). Authority and coercion. Philosophy and Public Affairs, 32, 1–35.

    Article  Google Scholar 

  • Ripstein, A. (2006). Beyond the harm principle. Philosophy and Public Affairs, 34, 216–245.

    Article  Google Scholar 

  • Ripstein, A. (2007). Legal moralism and the harm principle: A rejoinder. Philosophy and Public Affairs, 35, 195–200.

    Article  Google Scholar 

  • State v. Minkowski, 204 Cal. App. 2d 832 (1962).

  • Sen, A. K. (1985). Well-being, agency and freedom. Journal of Philosophy, 87, 169–221.

    Article  Google Scholar 

  • Sen, A. K. (1997). On economic inequality (expanded ed.). Oxford: Clarendon Press.

  • Simester, A. P., & Sullivan, G. R. (2005). On the nature and rationale of property offences. In R. A. Duff & S. P. Green (Eds.), Defining crimes. Oxford: Oxford University Press.

    Google Scholar 

  • Smith, S. D. (2006). Is the harm principle illiberal? American Journal of Jurisprudence, 51, 1–42.

    Article  Google Scholar 

  • Stewart, H. (2001). Harms, wrongs, and set-backs in Feinberg’s moral limits of the criminal law. Buffalo Criminal Law Review, 5, 47–67.

    Google Scholar 

  • Stewart, H. (2004). Persons and their well-being: A critical discussion of Kaplow and Shavell’s Fairness versus welfare. Queen’s Law Journal, 30, 1–34.

    Google Scholar 

  • von Hirsch, A. (1986). Injury and exasperation: An examination of harm to others and offense to others. Michigan Law Review, 84, 700–714.

    Article  Google Scholar 

  • Wellman, C. H. (2005). Feinberg’s two conceptions of rights. Legal Theory, 11, 213–226.

    Article  Google Scholar 

  • Williams, B. (1973). A critique of utilitarianism, in Utilitarianism: For and against. Cambridge: Cambridge University Press.

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Acknowledgments

I am very grateful to an anonymous reviewer and to my colleagues David Dyzenhaus and Arthur Ripstein for their comments on drafts of this paper.

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  1. Faculty of Law, University of Toronto, 84 Queen’s Park, Toronto, ON, M5S 2C5, Canada

    Hamish Stewart

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Stewart, H. The Limits of the Harm Principle. Criminal Law, Philosophy 4, 17–35 (2010). https://doi.org/10.1007/s11572-009-9082-9

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