Focused Summary: Beyond the Harm Principle
In “Beyond the Harm Principle”, Arthur Ripstein exposes fault in Mill’s harm principle and Feinberg’s offense principle, while providing one of his own- the sovereignty principle. He opens by claiming abandonment of the harm principle is the only true commitment towards individual sovereignty. In his evaluations, Ripstein notes the harm and offense principles do not account for wrongs that cause no harm, otherwise known as violations of equal freedom. The harm principle warrants criminalization on acts committed, not the fear, intimidation, or plot of acts being committed. The example the author illustrates throughout the entirety of his argument is a case of harmless trespass, intruding and sleeping on a person’s property, without consent and without causing any harm or damage. The harm principle struggles to address this behavior because it “demands that a positive case be made for any prohibition…that every rule be justified in terms of the harm it prevents,” (Ripstein, 224). In this scenario, the intruder has no intent on causing harm, they simply just want to rest in an individual’s property. Therefore, according to the harm principle, this action with an indifferent intrinsic behavior cannot constitute a sufficient reason for criminal prohibition. Yet, under the sovereignty principle, harmless trespass qualifies as criminal wrongdoing.
The sovereignty principle calls for violations of an individual’s equal freedom to merit criminalization. Equal freedom is a person’s ability to pursue their individual purposes, without control or serving as a pawn for others’ purposes. Ripstein then defines the sovereignty principle as “the only legitimate restrictions on conduct are those that secure the mutual independence of free persons from each other,” (Ripstein, 229). Under this principle, domination and independence interference are wrongdoings worthy of prohibition; these types of wrongs are excluded by the definition of the harm principle and offense principle. The sovereignty principle states that people have defined powers, skills or traits, which help them achieve their purpose in life. There must be a voluntary cooperation present between members of society, an agreement they will pursue their own purposes and only interfere with others’ powers when given permission- a system of noninterference. Ripstein articulates two instances in which a person’s powers can be interfered with, the first being usurping one’s powers. An example of this is using an individual’s powers for your own purpose, this takes away a person’s ability to exercise their veto power, a power crucial to independence. Secondly, a person’s powers can be destroyed, as the destroyer chooses which powers the person may keep. These violations unequivocally breach the sovereignty principle.
The concept of property parallels an individual’s powers. Property enables a person to achieve their purposes, but is also vulnerable as it can be taken away and is the perfect example of a class of actions that are worthy of criminalization under the sovereignty principle. The wrong in harmless trespass is that the trespasser is depriving the property owner of their power to decide how to use their house. Typically, a property owner would be against strangers using their personal bed, however, in a harmless trespass, the owner is stripped of their right to veto that action. Ripstein closes his argument citing the need for public institutions to implement the sovereignty principle. The contrast, private enforcement, will always result in despotism. The principle upholds the belief that public institutions prevent despotism through the creation of citizenship and other norms for those within the territory. In conclusion, the sovereignty principle further extends the harm principle, encompassing harmless trespass and a class of actions that impede on independence, which classify as criminal wrongdoings.
Ripstein, Arthur. Beyond the Harm Principle. Wiley, 2006.
