The Harm Principle

POS 2692 Punishment
Prof. Tunick
Spring 2000

The Harm Principle and other Liberty-Limiting Principles

The issue: under what conditions is it legitimate for the state to limit the liberty of individuals? May the state prevent us from (or punish us for):

staulking?
smelling bad?
using hate speech?
having sex in public?
desecrating the flag?
smoking marijuana or using other drugs (see news article)?
failing to take care of your kids (see news article)?
torturing a dog or cat (see news articles)?
participating in a Neo-Nazi march?
selling tobacco?

The competing principles

Anarchy: the state may never limit individual liberty
Harm to others principle: The state may limit my liberty only to prevent me from causing harm to others
Offense to others principle: The state may limit my liberty only to prevent me from causing harm or offense to others
Harm to self principle (version A): "soft paternalism": The state may limit my liberty to prevent me from nonvoluntarily harming myself
Legal moralism: The state may limit my liberty to prevent me from engaging in inherently immoral conduct even where this conduct causes no harm or offense
Harm to self principle (version B): "hard paternalism": The state may limit my liberty to prevent me from voluntarily harming myself

Liberalism as a theory of the state

Liberalism defined

Principles 2, 3, 4 are consistent with liberalism. Principles 1, 5, 6 are not.

What is the justification for a liberal theory of the state?

Mill's answer (the harm principle), and his justification (Discussion)

Joel Feinberg's harm to others principle, in The Moral Limits of the Criminal Law

Feinberg's method: match theory to intuitions

The Harm-to-others principle

What counts as a harm (vs hurt, offense)

setback to interest

what is an interest, vs a want?

welfare interests (health, life, vigor, minimal income, etc.)

is death a harm since we're not there to be harmed?

does an unborn fetus have actual interests?

violation of a right (commission of a wrong)

the volenti maxim (Volenti non fit injuria: to one who has consented, no wrong is done)

excuses and justifications: no wrong is involved

what counts as a right? natural rights vs positive rights

What counts as "causing" a harm?

concurrent causes

Example: C prepares a trip across the desert. A hates C and poisons C's water the night before departure. B hates C and pours out all C's water with the intent to cause C's death. C dies of thirst. Who caused the harm?

proximate causes

3 examples:

A strikes B with intent to kill. Dislocates B's jaw. Ambulance carrying B to hospital is struck by lightning and B dies. Did A cause B's death?

A strikes B without intent to kill. B is hemophiliac unbeknownst to A. B bleeds to death from the blow A gave. Did A cause B's death?

Train conductor negligently lets a passenger off a train 1/2 mile too far. She is raped and killed in a notoriously high crime area. Did the conductor cause her death?

Principles:

But-for-cause: if it is the case that but for x, y would not occur, x caused y.

Voluntary intervention principle: the cause is whatever deviates from the normal course of events; but if an intervening cause is free and deliberate, it cancels the earlier causal factor

Risk principle: if x created a risk of the harm, intentionally or negligently, x caused the harm.

imitative harms

Olivia v. NBC

Zamora v. Florida

is an omission (failure to act) a cause of harm? (should we punish bad samaritans?)

The Offense-to-others principle

Offenses vs harms

Classes of offenses

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