Abstract
Baselines are commonly used to enable harm identification. The temporal, the counterfactual and the duty-based normative baselines are the most prominent. Each of these captures an aspect of common conceptions of what it is to harm and be harmed. However, each baseline also fails to deliver workable identifications of harm when presented with certain types of case. Problematic cases are found readily in childhood, a venue in which harm identification is often called for. Without a reliable means of identifying harm in childhood, harm cannot properly play a central role in normative assessments of parental practices and state intervention. This paper presents childhood cases in which the prominent baselines fail and offers an alternative: the interest-based normative baseline. Should the interest-based normative baseline replace its rivals and reign supreme? I argue not, presenting a case for maintaining a suite of baselines for use in varying contexts.
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Notes
Gerald Dworkin offers the following catalogue of questions covered in the literature: ‘What are the links between our agency and harm, e.g., are we required to prevent harm, or may we also seek to promote benefit? Do only acts cause harm or may we harm by omission? What are the limits of harm, i.e., can we harm the dead, can we harm those whom we bring into existence? How do we delimit the cases of harm that are appropriate for state interference, i.e., does the harm have to be a violation of a right, does it have to be wrongful, does it have to harm particular persons, and so on.’ (Dworkin 2012, pp. 310–311). The contingency of harm has also puzzled some writers. See, for instance (Benditt 1976, p. 118). Many discussions of the Harm Principle raise concerns about the conception of harm required to support it. See Stephen (1994), Malm (1995), Scoccia (2008) and Ripstein (2006) for critiques of harm as too limited a concept to govern state intervention, and (Harcourt 1999; Smith 2006) for critiques of harm as too capacious a concept to govern state intervention.
Dworkin recently observed that: ‘There has been a remarkable consensus that, whatever other principles are required for an adequate theory of criminalisation, some form of harm to others principle is required.’ (Dworkin 2012, p. 310).
[2014] EWHC 2964 (Fam) 31 Case No: PO14C00645.
Feinberg writes: ‘a harmful act (or type of act) is one which has a tendency to cause harmed states or conditions in people…the idea of a harmed condition seems more fundamental conceptually than an act of harming, since one must mention harm in the explanation of what it is for one person to harm another, whereas one can hope to analyze the idea of harm (harmed condition) without mentioning causally contributory conditions’ (Feinberg 1984, p. 31). But see Hanser (2008) for a critique of state-based accounts of harm. See also Thomson (2011).
Some jurisdictions do enshrine duties to assist in the face of harm, not merely to refrain from causing harm. See Pardun (1998).
There is no definitive formulation of the Harm Principle (Turner 2014; Ten 1980) but the following passage from On Liberty is frequently cited:
the sole end for which mankind are warranted, individually or collectively, in interfering with the liberty of action of any of their number is self-protection. That the only purpose for which power can be rightfully exercised over any member of a civilized community, against his will, is to prevent harm to others. His own good, either physical or moral, is not a sufficient warrant’ (Mill 1974 [1859] p. 68).
But see Shiffrin for an argument against treating harms and benefits: ‘as though they represent two ends of scale, like the scale of positive and negative numbers.’ (Shiffrin 1999, p. 121).
It is common for some of a person’s interests to be set back, whilst others are advanced. Amputating a limb to save a life is such a case. Here it may be concluded, assuming that the advances outweigh or justify the set-backs, that although there have been harmful effects, the person is not overall harmed. See Hanser (2008) and Thomson (2011). One approach to cases involving mixed effects is via Feinberg’s third and preferred formulation of ‘harm’, in which setbacks to interests are not harms if they are not wrongful. I work from Feinberg’s second formulation because this discussion contributes to the work that must be done prior to attributing wrongfulness.
The temporal baseline’s inability to cope with future-oriented interests and interests in flux is not unique to childhood. It cannot recognise the harm of thwarting expected increases in interest-satisfaction, for instance. An unscrupulous financial advisor may harm clients by recommending a pension scheme that generates significantly less growth in his clients’ assets than other available schemes, but the temporal baseline cannot validate this view if their capital is undiminished.
One option is to employ a measure of normality. See Kahane and Savulescu (2012).
Wilkinson discusses another weakness of the temporal baseline: the tendency to encourage over-aggregation of benefits and harms (Wilkinson 2003, pp. 60–61).
But see Kahane and Savulescu (2012).
Note that the clause ‘If A had fulfilled his duties towards B’ is an addition to the original text in (Wilkinson 2003).
Parental duties may also be derived from the public good.
The clause ‘where ‘ought’ denotes an acceptable level of interest-fulfilment B’ is an addition to the original text in (Wilkinson 2003).
I deploy the terms duty and obligation are interchangeably here.
References
Beauchamp, Tom, and James Childress. 2001. Principles of biomedical ethics, 5th ed. Oxford: Oxford University Press.
Benditt, T.M. 1976. Benefit and harm. Philosophy and Phenomenological Research 37: 116–120.
Brake, Elizabeth. 2010. Willing parents. In Parenthood and procreation: the ethics of bearing and rearing children, ed. David Archard, and David Benatar, 1–24. Oxford: Oxford University Press.
Daniels, Norman. 2008. Just health: meeting health needs fairly. Cambridge, New York: Cambridge University Press.
Dworkin, Gerald. 2012. Harm and the Volenti principle. Social Philosophy and Policy 29: 309–321.
Feinberg, Joel. 1984. Harm to others: the moral limits of the criminal law. Oxford: Oxford University Press.
Fuller, L.L., and William R. Perdue Jr. 1937. The reliance interest in contract damages 1. Yale Law Journal 46: 52–96.
Gray, John. 1989. Liberalisms: essays in political philosophy. London: Routledge.
Hanser, Matthew. 2008. The metaphysics of harm. Philosophy and Phenomenological Research LXXVII: 421–450.
Harcourt, Bernard E. 1999. The collapse of the harm principle. Journal of Criminal Law and Criminology 90: 109–194.
Hardimon, Michael. 1994. Role obligations. The Journal of Philosophy 91: 333–363.
Harman, Elizabeth. 2003. The potentiality problem. Philosophical Studies 114: 173–198.
Held, Virginia. 2004. Taking care: care as practice and value. In Setting the moral compass: essays by women philosophers, ed. Cheshire Calhoun, 59–71. New York: Oxford University Press.
Holtug, Nils. 2002. The harm principle. Ethical Theory and Moral Practice 5: 357–389.
Kahane, Guy, and Julian Savulescu. 2012. The concept of harm and the significance of normality. Journal of Applied Philosophy 29: 318–332.
Kopelman, Loretta. 1997. The best interests standard as threshold, ideal and standard of reasonableness. Journal of Medicine and Philosophy 22: 271–289.
Malm, H.M. 1995. Liberalism, bad samaritan law and legal paternalism. Ethics 106: 4–31.
McMahan, Jeff. 2002. The ethics of killing. Oxford: Oxford University Press.
Meyers, Diana T. 2003. Gendered work and individual autonomy. In Recognition, responsibility and rights: feminist ethics and social theory, ed. Robin N. Fiore, and Hilde Lindemann Nelson, 19–35. Maryland: Rowman and Littlefield.
Mill, John Stuart. 1974 [1859]. On liberty. London: Penguin Press.
Noddings, Nel. 2002. Starting at home: caring and social policy. Berkley, CA: University of California Press.
Nussbaum, Martha. 1992. Human functioning and social justice: in defence of Aristotelian essentialism. Political Theory 20: 202–246.
Pettit, Mark. 1987. Private advantage and public power: reexamining the expectation and reliance interests in contract damages. Hastings Law Journal 38: 417–469.
Pardun, John T. 1998. Good samaritan laws:a global perspective. Loyola of Los Angeles International and Comparative Law Review 20: 591–614.
Ripstein, Arthur. 2006. Beyond the harm principle. Philosophy and Public Affairs 34: 215–245.
Scoccia, Danny. 2008. In defense of hard paternalism. Law and Philosophy 27: 351–381.
Sen, Amartya. 1993. Capability and well-being. In Quality of life, ed. Martha Nussbaum, and Amartya Sen, 30–53. New York: Oxford University Press.
Shiffrin, Seana. 1999. Wrongful life, procreative responsibility and the significance of harm. Legal Theory 5: 117–148.
Smith, Steven D. 2006. Is the harm principle illiberal? The American Journal of Jurisprudence 51: 1–49.
Stephen, James Fitzjames. 1994. The doctrine of liberty in its application to morals. In Morality harm and the law, ed. Gerald Dworkin, 26–35. Boulder: Westview Press.
Ten, C.L. 1980. Mill on liberty. Oxford: Oxford University Press.
Thomson, Judith Jarvis. 2011. More on the metaphysics of harm. Philosophy and Phenomenological Research LXXXII: 436–458.
Turner, Piers Norris. 2014. “Harm” and Mill’s harm principle. Ethics 124: 299–326.
Vallentyne, Peter. 2003. The rights and duties of childrearing. William and Mary Bill of Rights Journal 44: 991–1010.
Wertheimer, Alan. 1996. Exploitation. Princeton, New Jersey: Princeton University Press.
Wieland, Nellie. 2011. Parental obligation. Utilitas 23: 249–267.
Wilkinson, Stephen. 2003. Bodies for sale: ethics and exploitation in the human body trade. London: Routledge.
Acknowledgments
Many thanks to Martin Wilkinson, Stephen Wilkinson and Rob McNeill for helpful comments on an earlier draft, and to the editors of and several reviewers for this journal, whose guidance has helped me to develop this paper.
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Jonas, M. Assessing Baselines for Identifying Harm: Tricky Cases and Childhood. Res Publica 22, 387–404 (2016). https://doi.org/10.1007/s11158-015-9293-y
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DOI: https://doi.org/10.1007/s11158-015-9293-y