Abstract
The starting point of this chapter is a critical discussion of versions of what is called ‘the harm principle’. But what is harm? According to one general specification, a person P1 is harmed by another person P2 doing C, if and only if P1 is made worse off in terms of well-being because of C. Two concepts here stand in need of clarification. First of all, what is the baseline against which we assess whether someone is ‘worse off’? When a person is harmed we can agree that he is worse off, certainly, but what is he worse off than? What is the depletion in well-being a variation from? Secondly, what exactly is well-being? A central part of this chapter critically discusses a range of answers to the first question, mobilizing versions of what I call ‘temporal baselines’, ‘baselines from mankind’ and ‘counterfactual baselines’. It is argued that the counterfactual baseline leaves us with a better understanding of when an individual is being harmed by another individual than the other baselines discussed, even though it has problematic implications of its own. The counterfactual baseline says, roughly, that a person P1 is harmed by another person P2 doing C, if and only if P1’s well-being, because of C, is worse, compared to the closest world where P2 did not do C. The final part of this chapter describes some of the implications of this investigation for the view that harm matters in the justification of which kinds of conduct should be criminalized by the state. The overall conclusion of the chapter is that adherents of a harm principle face a devastating problem. In their effort to narrow down the scope of harms that the state ought to prevent through criminalization, they resort to moral theory. However, once they do that, there is no need for harm principles, as the whole job of justifying what to criminalize can be done by moral theory. I discuss some possible objections to the claim that all plausible versions of the harm principle are redundant when set beside what can be specified as grand moral theory.
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Notes
- 1.
- 2.
Mill (1859), Chapter 1, paragraph 7. Note that the Harm Principle in Mill’s formulation describes a necessary, but not sufficient, condition of state intervention. So although we can identify kinds of conduct that the criminalization of will prevent harm-doing, it does not follow from Mill’s harm principle that every time the state can prevent harm-doing (or risking harm) by criminalizing a kind of conduct, then it should be criminalized (or otherwise interfered with by the state or the public), since the enforcement required to avoid the harm may be even more harmful. See e.g. Mill (1859), Chapter 5, paragraph 3; Crisp (1997), pp. 180–181.
- 3.
It should be noted that it is important to talk about types of acts instead of single acts (tokens). It is easy to imagine single acts that do not, all things considered, harm people but which nevertheless are (or should be) considered criminal because such acts usually harm others or risk harming others. These acts might be termed “criminal right-doing”. For example, if Peter’s reckless driving results in Paul breaking his leg on the way to the airport to catch a plane, causing him to miss a plane that he would have otherwise died on as a result of a fatal crash, then Peter’s reckless driving did not, all things considered, harm Paul; in fact we might say that he benefited from Peter’s reckless driving. For a case like this see Parfit (1984), p. 372.
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- 5.
In what follows, I will use the categorization ‘harm principle’s to also cover ‘principles of legal paternalism’, however for stylistic reasons and because I believe one can interpret some harm principles as also entailing harm to the agent I will leave out the terms ‘legal paternalism’. In what follows, however, we shall bear in mind that legal paternalism, is also subject to the same kind of objection from redundancy that target harm principles (whether or not versions of harm principles include harm to the agent herself).
- 6.
See e.g. Baker (2011), pp. 56–61 for a defence of the view that harm principles should also include harm to non-human animals.
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- 8.
In what follows, I will stick to the instrumental/preventive version of harm principles. This I will do for stylistic reasons but also for the reason that all prominent adherents of harm principles explicitly formulate their versions of a harm principle in these terms.
- 9.
See e.g. Harcourt (1999), p. 113.
- 10.
See e.g. Baker (2011) for a critique of the empirical objection similar to this.
- 11.
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- 13.
The few exemptions from this kind of criticism are Holtug (2002) and Petersen (2010). However, Holtug does only write a few sentences about this objection, and I will therefore (in Sect. 2.6) reconstruct, specify and critically discuss what I believe to be Holtug’s argument for the conclusion that certain (moralized) versions of the harm principle are redundant compared to grand moral theory. Stanton-Ife, in his 2016 paper titled ‘What is the Harm Principle For?’, argues that Simester and von Hirsch, who are in favour of a harm principle, ‘would lose little of any significance were their Harm and Offense Principles simply excised’ (p. 1). This may sound very much like the conclusion that Holtug and I have also reached, but it is not. Whereas Stanton-Ife argues that Simester and von Hirsch’s view on a harm principle is redundant to legal moralism (see e.g. Chap. 4 for a critical discussion of this class of criminalization theories), Holtug and I claim that moralized (and, from my point of view, also non-moralized) versions of harm principles are redundant to grand moral theories that can guide us in all situations and not only when it comes to criminalization decisions, as is the case with legal moralism. Furthermore, Stanton-Ife’s critique is based on the idea that Simester and von Hirsch’s understanding of harm is very broad and includes harms (e.g. moral harm to one’s character if one watches pornography) that do not relate to the well-being of individuals. However, as we shall see in what follows, I only focus on harm as something that is related to and affects individual well-being.
- 14.
See e.g. Kagan (1989) for an understanding of moral theories like this. Hereafter, I will just write ’moral theory’ for short instead of ‘grand moral theory’.
- 15.
Harrosh (2012), p. 493.
- 16.
Being harmed need not be confined to cases of reduction of the currency of well-being; instead, it might involve the reduction of autonomy or moral character. For an autonomy-based conception of being harmed, see e.g. Raz (1986), p. 420. For a critical discussion of the idea that ‘moral harm’ (e.g. watching pornography) can harm the moral character of a person, though the person is not made worse off in terms of well-being, see Sumner (2004), pp. 35–50. However, these differences over the currency of harm have no role in our discussion of the baseline problem, as this problem (as we shall see) exists whether you relate harm to reductions in well-being, autonomy or moral character.
- 17.
- 18.
I write ‘usually’ here because even murder and rape can, in some rare circumstances, benefit a person by preventing even greater harm (e.g. by ending a person’s life, you can terminate their intense and untreatable pain).
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In what follows, the focus will be on the search for the baseline governing harm. As far as I know, the problem of identifying the baseline governing benefit is just as neglected in the philosophical literature.
- 21.
Feinberg (1984), pp. 136–145; Raz (1986), p. 416; Petersen (2001), p. 415; Holtug (2002), pp. 368–371; Norcross (2005), pp. 149–150; Bradley (2012) are some of the few exceptions. Although Nozick (1974) and his critics, e.g. Cohen (1995), Kymlicka (2001) and Wolf (1991), were engaged in a baseline discussion relating to ‘worsening’, the scope of their discussion is confined to the special kind of worsening that may occur for others when one or more people come by an initial acquisition of external and formerly unowned resources. Instead, our discussion concerns harming/worsening in a much wider perspective, including harms that come about by any type of act or omission.
- 22.
One reason for this lack of interest may be due to the observation that the most obvious kinds of harm can easily be described as harm, almost no matter what kind of baseline for harm you favour. However, as will be shown in the following sections, what we would consider as harm, or harm in some specific situations, cannot be considered as harm according to certain theories of the baseline for harm.
- 23.
Kagan (1998), pp. 86–87.
- 24.
Philosophers and penal theorists like Feinberg (1984), Husak (2008) and Simester and von Hirsch (2011) who believe that the prevention of harm-doing is a relevant reason to criminalize, all claim that it is only harm-doing or allowing harm that is morally wrong, that the state has a reason (among others) to prevent through criminalization.
- 25.
See Harman (2009).
- 26.
For defenders of a non-comparative account of harm, see Harman (2009) and Shiffrin (1999). For a critique of these views, see Bradley (2012). The main problem for non-comparative accounts of harm is that, although they can recognize that dying can be harmful, they cannot account for the view that death can be harmful for a person, because death or being dead is not something a person can experience.
- 27.
A good example of a temporal baseline is Nozick’s proviso for just initial acquisition of unowned resources. Compare Kymlicka (2001), p. 117: ‘Nozick’s proviso says that an act of appropriation must not make others worse off than they were when the land was in common use.’
- 28.
Holtug (2002), p. 368. The structure of the case we shall now imagine resembles that in a case provided by Holtug.
- 29.
See Norcross (2005), pp. 149–150 for another case which shows that this kind of baseline is problematic. For more cases, see Kahane and Savulescu (2012), who point out that if harm implies that you were better off before the harm, we cannot say that a child born blind and deaf is harmed by the blindness and deafness, because such a child would not exist prior to the harm in question. This, however, does not seem right, especially if the harm involved is deliberately caused by the parents—e.g. during the pregnancy.
- 30.
Feinberg (1984), p. 143. Note, however, that Feinberg only seems to accept this ‘normal baseline’ in situations where a person has a moral duty to assist someone who, say, is drowning.
- 31.
Notice that temporal baselines can deliver the right answer in these cases. For example, that Brian is harmed by Peter’s crushing and stealing (since Brian is worse off than he was before Peter stole his car and crushed his legs) or that people hurt by the meteor are harmed since they were all better off before the meteor hit Earth.
- 32.
Harrosh (2012), p. 397. In this 2012 article, Harrosh does not discuss different types of baselines, as the focus of the article is a presentation of her own idea of how we should identify harms.
- 33.
- 34.
Assuming, of course, that the closest world to the one where I break one of your fingers is one where another person breaks all ten of your fingers.
- 35.
- 36.
- 37.
These conditions build on Lewis (1986).
- 38.
In other words, and if you believe that determinism and incompatibilism is right, he could not have released you and furthermore, he could also not have chosen not to kidnap you.
- 39.
- 40.
Kagan (1998), pp. 84–85.
- 41.
Imagine, for example, that when you consider how much you should donate, you are in doubt about whether to donate 5% or 6% of your salary. However, if the closest possible situation is one where you give 4% of your salary, you have not harmed anyone by donating 5%, quite the contrary.
- 42.
You might, of course, think that you have not done anything morally wrong by this kind of harm, but we should, for now, bear in mind that we are discussing non-moral views of harm.
- 43.
Hart (1963), p. 14.
- 44.
See e.g. Feinberg (1984), pp. 34–35; Husak (2008); Simester and von Hirsch (2011), pp. 38–39. Another strategy to specify which types of harm are relevant to prevent through criminalization is to claim that it is only the prevention of non-trivial harm that matters in criminalization decisions. See e.g. Husak (2008) for this constraint on the justification of criminalization. For a splendid and convincing critique of this strategy, see Holtug (2002).
- 45.
- 46.
Holtug (2002), p. 385.
- 47.
Holtug (2002), p. 386.
- 48.
Adherents of a harm principle who also accept the offence principle (like Feinberg) or who accept other reasons for criminalization than harm—because they believe in the existence of harmless immoralities—could also simplify their theories according to the wording in the above-mentioned phrase. They could claim that it is not only morally wrongful harms but also morally wrongful offenses that the state has reasons to criminalize.
- 49.
Sumner (2004).
- 50.
For a splendid and critical discussion of the problems with applying mid-level moral principles like harm principles see e.g. Krom (2011).
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Søbirk Petersen, T. (2020). Harm and Criminalization: On Why Harm Principles Are Redundant. In: Why Criminalize?. Law and Philosophy Library, vol 134. Springer, Cham. https://doi.org/10.1007/978-3-030-34690-4_2
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