Harm Versus Sovereignty: A Reply to Ripstein

Harm Versus Sovereignty:A Reply to Ripstein

COLIN BIRD

In a recent article in this journal,1 Arthur Ripstein urges us to “abandon”Mill’s Harm Principle in favor of the following alternative, which he dubsthe “Sovereignty Principle”: “each person is entitled to use his or her ownpowers as he or she sees fit, consistent with the ability of others to do thesame” (p. 233). Like Mill, Ripstein hopes to secure individual freedomand independence by limiting the reach of the criminal law and of coer-cion more generally. But Ripstein claims to identify a class of pertinentcases in which the harm principle falters, and in which only the sover-eignty principle can properly protect the personal independence thatboth he and Mill prize. This article argues, however, that Ripstein fails toestablish the superiority of his proposed substitute.

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Ripstein’s main argument against the harm principle turns on cases ofharmless trespass. To present his objection, Ripstein constructs animaginary example in which unbeknownst to you, and without causingany damage, he enters your home and naps in your bed (p. 218). Ripsteinadmits that his example is “artificial,” but later relates it to two morerealistic instances of (supposedly harmless) wrongdoing: those in whichmedical experiments are performed without trace or injury on personswhile unconscious (p. 227); and those involving “unauthorized touch-ings” (pp. 235–36), in which someone “trespasses” on another’s personby making inappropriate contact with them in ways that may not even be

I thank George Klosko, Ryan Pevnick, and the Editors of Philosophy & Public Affairs forvery helpful comments on earlier versions of this article.

1. Arthur Ripstein, “Beyond the Harm Principle,” Philosophy & Public Affairs 34 (2006):215–45. Unless otherwise indicated, all page references are to this article.

© 2007 by Blackwell Publishing, Inc. Philosophy & Public Affairs 35, no. 2

detected by the victim, let alone cause any harm (sexual molestationwhile under anesthetic, for example).

Ripstein contends that such cases embarrass the harm principle. Theydo so, in his view, because we intuitively think the relevant conductought to be criminalized yet cannot easily explain the wrongs suffered bytheir victims in terms of harm. To cover such cases, Ripstein argues thatwe need a principle that justifies prohibitions independently of harmswhile still protecting individual independence and autonomy. The(broadly Kantian) sovereignty principle is his suggested corrective.2

Under that principle, then, trespass (and analogous conduct) maylegitimately be outlawed even when the actions in question have few, ifany, harmful effects. The case for legal prohibitions in such casesdepends, for Ripstein, not on claims about harm but rather on an appre-ciation of the wrong inherent in any conduct that usurps agents’ author-ity over their persons and property. Whatever harm they may do,trespassers deny owners the right to veto their designs by using others’property without the proprietor’s consent. Such behavior, Ripsteininsists, establishes a relation of domination or interpersonal “despo-tism.” In ignoring the owner’s right to decide how her property may beused, the trespasser wrongly subjects her will to his own. Because itfixates on harm, Mill’s principle is insensitive to these considerations,and hence powerless to motivate a legal prohibition on harmless tres-pass, or so Ripstein contends. Thus the fatal weakness in the harm prin-ciple, on his view, is that it “remains indifferent to trespass, except whendangerous or harmful” (p. 224).

This argument against the harm principle hinges on two claims,which Ripstein does not explicitly distinguish. Call them the negativeand positive theses. The negative thesis denies that a plausible harm-based rationale for criminalizing acts like Ripstein’s nap is available. This

2. In describing Ripstein’s sovereignty principle as “Kantian,” I am following his ownlead (p. 216, n. 1). I am less sure than Ripstein that his proposal follows from or faithfullyrepresents Kant’s own doctrine. But whatever Kant himself would have made of it, Rip-stein’s general position undoubtedly reflects a dominant strand in liberal thought that(rightly or wrongly) often claims a Kantian inspiration. The contemporary exponents of thisvariant of liberalism postulate a highest-order moral duty to safeguard the dignity ofautonomous persons. They treat that duty as prior to and independent of utilitarian con-siderations and directly derive from it categorical limits on the legitimate scope of statepower. Ripstein’s view clearly exemplifies “Kantian liberalism” in this weaker sense, andthis is how I use that term here.

180 Harm Versus Sovereignty: A Reply toRipstein

claim would imply that the harm principle cannot adequately handlecases of harmless trespass. It thus supports Ripstein’s contention that“the only way to articulate the interest that my nap violates is by appealto the sovereignty principle” and not the harm principle (p. 219).

The positive thesis asserts that trespasses and comparable assaults onpersons’ independence ought to be legally restricted regardless of anyresulting harms. If plausible, this second thesis would enable Ripstein toanswer an obvious and important challenge: why not think that preciselybecause, and to the extent that, some sorts of trespass are entirely harm-less, they are simply not objectionable in a way that warrants their legalprohibition? Proponents of the harm principle will of course say that thisis precisely what we should think. To vindicate his claim that the sover-eignty principle handles these cases better than the harm principle,then, Ripstein must explain why this line of thinking is mistaken. For thishe needs the positive thesis.

Ripstein relies on the intuitive force of the nap example to defend boththeses, but I will suggest that it fails to support either of them.

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Despite initial appearances, the negative thesis cannot be defendedmerely by pointing out that Ripstein’s nap is in itself harmless. Thatwould be a decisive consideration only if particular violations of thosegeneral legal prohibitions that can be justified under the harm principlemust in all cases directly cause harm. But this is not so. To satisfy Mill’sstandard, we need only establish that

(a) serious harms would result from failing to enforce a general pro-hibition on a class of conduct, and

(b) coercively imposing such a prohibition will not itself causeeven greater harm.

Obviously, general legal prohibitions could pass this test without itsbeing true that every instance in which they are violated brings directharm to the parties immediately affected.

Ripstein concedes this general point. That is why he devotes so muchattention to rebutting the argument that he calls the indirect strategy. AsRipstein realizes, this argument provides Mill’s followers with a seem-ingly promising way to attack the negative thesis. Ripstein reconstructsthe argument as follows:

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Even if I do not harm you in this case [his nap], it is plausible tosuppose that a general rule giving people rights to exclude others fromtheir property, especially their homes, prevents people from visitingharms on each other. Your right to exclude me is enforceable as aspecial case of a more general right that is justified by its prevention ofharm, even if in the peculiar case I have described, no harm was done.Although the token is harmless, the type is harmful. (p. 222)

Ripstein acknowledges that the indirect strategy could work in somecases. He accepts, for example, that it could justify general prohibitionson dangerous driving or the release of toxic pollutants, since here there isan uncontroversial risk of damage to others. In these cases, the indirectstrategy allows the harm principle to justify a general prohibition eventhough many specific instances of the proscribed conduct (dangerousdriving, for example) will actually cause no harm at all.

Ripstein argues, however, that, while driving at high speeds or releas-ing toxic chemicals are inherently dangerous to others, his nap and analo-gous trespasses seem not to be. They are tokens, he tells us, of a type ofconduct that involves no risk of harm to others (pp. 223–24). Ripstein alsorejects the argument, which he associates with Hume and the broaderutilitarian tradition, that permitting trespasses like his nap would under-mine the institution of private property and be indirectly harmful just forthat reason. He finds this suggestion implausible because, as he correctlynotes, violating the constitutive rules of a valuable social practice (in thiscase that of “respect” for private property) need not damage the practiceitself, nor diminish its beneficial effects (pp. 224–29). Conduct like his nap,Ripstein thus counters, has none of the indirectly harmful effects thatmight supply a harm-based rationale for a legal prohibition. If Ripstein isright about this, the indirect strategy poses no serious challenge to thenegative thesis. The ability of the harm principle to justify legal restric-tions on harmless trespass indeed seems in serious doubt.

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However, the indirect strategy is more versatile (and hence the negativethesis more vulnerable) than Ripstein allows. It is certainly true that Milland the other classical utilitarians used a version of that strategy tojustify criminal prohibitions on the violation of property rights. But their


arguments did not depend on anything so abstract and speculative asthe claim that “allowing violations of the basic rules governing propertywill destabilize the institution of property” (p. 224). Mill in particular wasnot concerned with preventing harm to the institution or social practiceof property as such, but rather with the overwhelmingly powerful inter-est each of us has in personal security. As he puts it in his discussion ofrights in Utilitarianism:

The interest involved is that of security, to everyone’s feelings themost vital of all interests. Nearly all other earthly benefits are neededby one person, not needed by another; . . . but security no humanbeing can possibly do without; on it we depend for the whole value ofall and every good, beyond the passing moment; since nothing but thegratification of the instant could be of any worth to us, if we could bedeprived of anything the next instant by whoever was momentarilystronger than ourselves.3

The fear that our persons and property are insecure will seem particu-larly intense in the case of those of our holdings that provide us with safeshelter and personal space to which we may repair for the purposes ofseeking privacy and rest. Protected personal space of this kind, which weneed not share with anyone, allows us to escape the unwanted scrutinyof others and to keep the disturbances of the world at bay. This majorbenefit of ordered schemes of property rights would be unavailable in acondition of insecurity such as obtains in a Hobbesian state of nature.People in that situation must face the bleak realization that there isliterally nowhere in the world in which they can enjoy a firm guarantee ofsecure personal refuge in this sense.

When we view Ripstein’s position in the light of this strong interest inpersonal security, several peculiarities of his nap example acquire newsignificance. We notice, for example, that Ripstein does not merely tres-pass on privately owned land, or enter space to which the proprietor hasonly a remote personal relation, like an office building or a retail outlet.Rather, he enters someone’s personal residence. Furthermore, onceinside, Ripstein does not content himself with those areas to which ordi-nary guests and visitors might have access. Instead, he goes directly to aroom that most would consider off-limits even to invited guests, and

3. J. S. Mill, Utilitarianism, On Liberty and Considerations on Representative Govern-ment, ed. H. B. Acton (London: Everyman, 1972), p. 56.


uses arguably the most personal space in the whole house—the place inwhich one seeks rest and refuge from others’ scrutiny. The thought thatat any moment complete strangers might freely enter and observe thesemost intimately personal places will leave most of us profoundly uncom-fortable; the fact that they would do no damage, harbor no ill intentions,or that we would be unaware of their presence would do little to removethat discomfort.

Such concerns about insecurity only intensify when we turn to theother cases Ripstein mentions, like those in which we are unknowinglysubjected to medical experiments or sexual molestation. Surely our senseof personal security must diminish to the extent that others can do suchthings with impunity. It is true that such conduct may go undetected andcause few if any direct harms. Contrary to Ripstein’s claims, however, itdoes not follow that the indirect strategy can get no grip in such cases. Forperhaps the law would itself unacceptably compromise everyone’s inter-est in personal security insofar as it leaves such conduct unaddressed.

Indeed, this seems quite likely. To see why, notice that under such aregime, those caught abusing anesthetized patients or found prying intoour personal space could escape legal liability merely by pointing outthat “I didn’t mean for her to find out” or that “no harm was done.” Butsurely it is plausible to think that everyone will feel less secure knowingthat this is the legal position, and this for two reasons.

First, to the extent that the law recognizes such defenses as exculpa-tory, its capacity to deter domestic trespassers and abusers wouldweaken. As long as those who engage in such conduct take care to avoidcausing any immediate or discernible harm, they would have nothing tofear from the law. But it is hard to believe that this would adequatelyprotect our interest in personal security.

Second, and more interestingly, such a legal regime would conveysomething independently disconcerting about society’s commitment toour protection. Our sense of personal security does not merely requirethat others refrain from invading our bodies and private space. It alsorequires confidence that the wider community refuses to condone suchconduct and is willing to assume the burden of protecting us against it.As Mill put it, we must be able to trust our “fellow-creatures to join inmaking safe for us the very groundwork of our existence.”4 Part of what it

4. Mill, p. 56.


is to suffer insecurity is to lack an assurance that our “fellow-creatures”adequately recognize what is necessary to defend us from “injuryand molestation.”5

Whether (and to what degree) we suffer insecurity in this sense partlydepends, then, on how we perceive the law’s efforts to organize anddefine mutual self-protection. Its willingness to enforce a particularpattern of prohibitions represents a social commitment to defendcertain interests. Conversely, its unwillingness to do so reflects theabsence of such a commitment, or at least we may reasonably fear that itdoes. Our sense of personal security therefore rises and falls with ourability to rely confidently upon the law (and thereby our “fellow-creatures”) to properly recognize both our interests and what is neces-sary to protect them. Viewed from this angle, the knowledge that thosewho are found to have invaded others’ bodies or personal space canescape legal sanction by claiming that in themselves their actions causedno direct harm plausibly contributes to a sense of insecurity.

On this basis, it seems reasonable to argue that the law ought toenforce an unqualified prohibition on domestic trespass and sexualmolestation because omitting to do so would itself cause unnecessaryharm. This line of argument is not grounded (as per the sovereigntyprinciple) on claims about the independent wrongness of the relevantconduct, but rather on claims about indirect harms to our sense of per-sonal security. The argument is doubtless open to further objections, butit does not strike me as obviously implausible. The idea that we have apowerful, yet fragile, interest in personal security that depends on thelaw for essential support is hardly eccentric or novel. If sound, thesearguments suggest, against the negative thesis, that harm-based consid-erations can explain our intuition that domestic trespass ought to beoutlawed after all.

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Further doubts about the negative thesis emerge when we consider theunrealistic quality of the nap example. For example, Ripstein asks us toassume that he has the magical ability to gain entry to your homewithout having to break any windows, locks, or doors. In the real world,

5. Mill, p. 143.


however, any effort to gain access to space that we presume to besecured must at least risk damage. Of course, you may have forgotten tolock the doors, or the trespasser may know that you generally leave someaccess points unlocked. But these are aberrant cases. As things stand,anyone who wishes to enter a private residence uninvited, even if hisintentions are benign, is likely to cause damage.

Furthermore, Ripstein’s descriptions of his conduct in the example—his seemingly blithe desire to nap in your bed, the immensely consider-ate pains he takes to prevent damage to your property, the amiable auraof acte gratuit that his presentation evokes—all presume that observersare in a position to confirm the innocence of Ripstein’s intentions. Again,this is a very unrealistic assumption. To my mind, in fact, the mostimpressive feature of Ripstein’s example is not so much that the type ofact of which it is a token seems wrong even though harmless but that itdescribes a type of act of which there are unlikely to be any genuinetokens in the world that we know.

It is not just that (sane, rational, legally responsible) persons virtuallynever enter others’ homes uninvited on the strange sort of whim, at onceplayful and painstaking, that Ripstein envisages. It is also, more impor-tantly, that observers are unsure of the motives that might lead others toinvade our private space. For reasons vividly described by Hobbes andAugustine, the opacity of others’ intentions and the fragility of naturaltrust inevitably shroud our attitudes to strangers in fear and suspicion,particularly those intent on entering our homes. We naturally impute theworst possible motives to such intruders and unfortunately much in ourexperience tends to validate such suspicions of malevolence. These con-siderations provide additional reasons to think that our intuitive reac-tion to Ripstein’s example reflects anxiety about likely harm as much asa belief that trespass is independently wrong.

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Contrary to the negative thesis, then, Mill’s followers can appeal toseveral harm-based considerations to justify legal prohibitions ondomestic trespass. Yet we may still be tempted by the positive thesis.Even if the law can prevent important harms by prohibiting trespass, forthe reasons just laid out, it does not follow that this fact provides the bestexplanation of why trespass should be so prohibited. The nap example


might still show that trespasses should be legally sanctioned regardlessof their harmful effects, as the positive thesis asserts.

This claim is also doubtful. To see why, contrast Ripstein’s nap with aless artificial, yet parallel, example. Imagine a group of hikers who,without permission, camp on and explore a privately owned tract ofuncultivated, unforested, mountain wilderness. Let us assume that thehikers are interested only in enjoying the landscape and climbing itspeaks; they are far from the owner’s private residence; they do nodamage; they clean up after themselves; and they want to preserve thebeauty of the landscape for others to enjoy. The only clear differencebetween this case and Ripstein’s example is that the hikers sleep in theirown tents, rather than in the proprietor’s home. This feature of theexample means that it raises none of the concerns about personal secu-rity or privacy that, as I argued earlier, could motivate a harm-basedargument for prohibitions on domestic trespass. In all other relevantrespects the conduct in the two cases seems analogous.

Should the hikers’ conduct then be legally prohibited, as the positivethesis would require? This is far from obvious. Why shouldn’t they beallowed to camp on and roam freely through such areas, even withoutthe owner’s consent, and subject to the proviso that they do no damage?In some jurisdictions, parts of Scandinavia and Scotland, for example,this is in fact a legally protected entitlement, sometimes called “Every-man’s Right” (Swedish: Allemansrätten; Norwegian: Alemannsretten;Finnish: jokamiehenoikeus). Although English law remains more favor-able to the interests of property owners, the 2000 Countryside and Rightsof Way Act provides comparatively generous rights to roam freely acrosseven privately owned land, certainly by U.S. standards.6

Of course, landowners often resent and oppose the legal provision ofsuch rights, and they might look to Ripstein’s sovereignty principle toground their complaint. It is not clear to me whether Ripstein’s sover-eignty principle must ultimately commit him to supporting such com-plaints. He does not discuss any examples that match this one exactly,although I find it hard to see how hikers’ rights to roam could bedefended as a desideratum of their personal sovereignty in Ripstein’s

6. Note that in these cases it is the right to roam freely across privately owned landthat is at issue, not merely the legal definition and provision of easements or publicrights of way.


sense. But whatever he would say about it, the case of the hikers clearlyraises quite different issues from those of Ripstein’s nap.

In the former case, for example, there can be no serious questionthat the owner’s interest in a secure area of personal space is threat-ened by the hikers’ conduct. Even if the owner maintains that the land-scape carries special personal meaning for her, or that the hikerssomehow violate her sovereignty, these considerations compete withthe significant interest that hikers, and also the public at large, have invaluable forms of recreation and in the ability to access areas of naturalbeauty. These weighty social interests make it possible to argue that inthis instance an absolutist legal deference to the rights of propertyholders could itself cause significant social harms. But even thoseunconvinced by this harm-based rationale for legally guaranteed“Everyman’s Rights” must concede that no comparably importantsocial interests could plausibly be cited in defense of those who,like Ripstein, contrive a desire to sleep in other people’s beds fromtime to time.

These reflections reveal a further respect in which the nap example ismisleading. One reason why we are so quick to object to Ripstein’s nap isthat it is hard to discern any important social interest that would beharmed by prohibiting conduct of its general sort. Yet as the hikerexample illustrates, we cannot always assume so easily that no importantinterests would be harmed by inflexibly upholding the claims of propri-etors. The sovereignty principle’s indifference to harms caused by rigidlyenforcing owners’ entitlements raises no flags in the case of Ripstein’snap. But that is only because any such harms in this case are evidentlytrivial: there is no vital social interest in sleeping in other people’s beds.In more common, real-world cases like that of the hikers, the sovereigntyprinciple’s indifference to harm (p. 236) may well count against it. At thevery least, these considerations discredit the nap example as a fair test ofthe positive thesis.

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The arguments I have made against Ripstein, particularly thosedirected at the negative thesis, hinge crucially on claims about ourinterests in personal security and privacy. But some will suspect thatthis security argument does not so much compete with Ripstein’s view


as presuppose it. Is not our interest in security equivalent to ourentitlement to “personal sovereignty” in Ripstein’s sense?7 Several pas-sages in Ripstein’s article anticipate this line of response (pp. 217, 219,236 n. 29). These allege that Mill’s position borrows its coherenceand power from an unacknowledged reliance on the sovereignty prin-ciple or something like it. If this allegation were sound, rather thanrefuting Ripstein’s case for the sovereignty principle, my reconstructedMillian argument for prohibitions on domestic trespass may actuallytrade on it.

What makes the allegation tempting is that the security argumentsupports the idea that the law should recognize and defend rights toexclude others from our private space. Indeed, I grant that to upholdsuch rights seems equivalent to asserting a legally enforceable right to be“sovereign” in (at least) your own home. But it does not follow from thisconcession that the role being played by notions of personal sovereigntyin the security argument is anything like that which Ripstein’s own argu-ment assigns them. As we shall see, far from depending on the logic ofRipstein’s case, the security argument actually reverses it.

To understand why, we must first appreciate the sharply differentreasons that the sovereignty and harm principles would give for criminalprohibitions on conduct like Ripstein’s nap. Proponents of the harmprinciple would invoke the security argument to claim that since in suchcases legal restrictions can protect our interest in personal security fromharm without themselves causing any outweighing harms, it is entirelylegitimate to outlaw domestic trespass. In contrast, Ripstein’s sover-eignty principle would defend such a prohibition, not in order to preventharm, but rather on the grounds that trespassers “despotically” usurpproprietors’ rightful power to exclude others from their property. Rip-stein is very clear that claims about possible harms to agents’ interestsplay no role at all in such arguments about despotism. According toRipstein, rather, such domination is inherently objectionable as a viola-tion of an equal moral entitlement to “freedom as independence.” Heaccepts that wrongful domination of this sort may in fact often be asso-ciated with various possible harms, but insists that the sovereignty

7. I am grateful to George Klosko and an Editor of Philosophy & Public Affairs forpressing this objection.


principle is indifferent to them: “harm merits prohibition when it is amanifestation of despotism, but not otherwise” (p. 235).8

On this view, then, if laws accepted under the sovereignty principle doavert important social harms, this will only be an inadvertent bonus, butnot the basis for their legitimacy. For Ripstein, a pre-legal conception ofpersonal sovereignty restricts in advance those problems that the law ismorally permitted to address; no computation of possible harmfuleffects is required or even relevant.

The security argument, and the harm principle on which it depends,however, move in exactly the opposite direction. It permits the law todefine and coercively defend rights to personal sovereignty (and otherentitlements) only when doing so will avert serious harms. The preciseshape of our legally enforceable entitlements to person and propertyshould, on this view, be determined by calculating their tendency tocause or avert harm.

Like a pair of gloves, then, these arguments are incongruent mirrorimages of each other. Ripstein’s argument conditions the legal preven-tion of harm on a pre-legal imperative of respect for personal sover-eignty. The tendency of legitimate law to prevent harm is on this viewlittle more than a fortunate by-product of taking that imperative seri-ously. Conversely, the security argument conditions the legally enforce-able scope of personal sovereignty on claims about the harms that mightresult from the particular legal restrictions we are contemplating. Oncewe see that the two positions are incongruent with each other in thisway, the objection under consideration loses its force. For it to be plau-sible to maintain that the security argument works only by presupposingRipstein’s appeal to personal sovereignty, it must at least be the casethat the two arguments flow in the same direction. As we haveseen, however, the reverse is true. Even if Mill’s argument canentail claims about personal sovereignty, it does not (like Ripstein’s)rest on them.

8. Ripstein does sometimes speak of the entitlement to personal sovereignty as an“interest” (e.g., p. 219). But he clearly does not conceive it as the kind of interest that issubject to “harm” in a utilitarian sense. Rather, he construes it as a Kantian-style interestthat cannot (strictly speaking) be promoted or harmed but only categorically respected orviolated by responsible others. The fact that both arguments sometimes use superficiallysimilar language and reach overlapping conclusions about domestic trespass should there-fore not obscure their fundamentally different character.


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Of course, it does not follow from the fact that these two argumentsare for these reasons irreducible to each other that Mill’s approach issuperior. Ripstein could still contend that the sovereignty principleprovides a better basis for deciding the legitimacy of legal coercion.However, I conclude by offering three reasons for thinking that thesovereignty principle is inferior to the harm principle in this regard.

(1) For Ripstein, freedom consists in the ability to independentlycontrol one’s “own powers.” But while freedom in Ripstein’s sense isdoubtless among our interests, the sovereignty principle would make itsprotection the only valid reason for legal coercion: “the only legitimaterestrictions on conduct are those that secure the mutual independenceof free persons from one another” (p. 229). Is this reasonable? Whyexclude all other interests from deliberation about the legitimacy of legalrestrictions? The harm principle seems to be on stronger ground inmaintaining that possible harms to other interests, like access to areas ofnatural beauty, at least merit some consideration in reflection about theproper content of the law. The onus is surely on Ripstein to explain whythis intuitively plausible view is incorrect.

(2) Even if we agree that guaranteeing personal sovereignty shouldbe the overriding concern of legal regulation, we still need to know whatcounts as a protected “sovereign power.” How should we resolve dis-agreements about the exact legal scope of personal sovereignty? As wesaw in the last section, the harm principle provides a clear response tothis question. It would define the precise borders of our legally protectedzone of personal sovereignty by reference to possible harms that differ-ent allocations of legal rights might avert or cause. Thus, given the secu-rity argument, the harm principle will agree that our homes should fallwithin that zone. But it could also circumscribe that zone so as to denylandowners an unqualified power to exclude hikers from areas of naturalbeauty on their estates. Such recommendations may be controversial,but at least the harm principle provides a coherent and identifiableexplanation of how far, for legal purposes, our sovereign powers shouldextend in such cases.

I doubt that the same can be said of the sovereignty principle. Sincethe entitlement to “one’s powers” is written into the sovereignty prin-ciple itself, we cannot appeal to that principle to resolve disagreements


about what should be included in the set of legally protected sovereignpowers. Some will contend that the right to exclude hikers from one’sland should be considered a member of that set; others will think itshould not be. As it stands, however, the sovereignty principle providesno determinate criterion for resolving such disputes. Attempting to auditthe harms that might result from alternative legal resolutions of coursebrings its own well-known difficulties, but at least it offers an indepen-dent standard by which to adjudicate the issue.

(3) A final weakness in the sovereignty principle relates to its insis-tence that the law be sensitive to the morally objectionable quality ofassaults on personal independence. Ripstein regards this as a majorstrength of his proposal and repeatedly criticizes Mill and his followersfor ignoring the way in which liberty-infringing actions legitimatelyinvite moral indignation, resentment, and a sense of grievance (pp. 218,227–28, 234). As they stand, however, such charges are unfair. The harmprinciple does not purport to identify conduct that is morally objection-able or to explain why it is so; nor need it deny that trespass and otherassaults on our autonomy are immoral. It aims only to identify thoseactions that are legitimate candidates for a legal prohibition, whetherthey are independently objectionable or not. Certainly, Mill did not thinkthat immoral conduct ceases to be immoral just because the harm prin-ciple disallows its legal prohibition.9

From a Millian standpoint, then, the problematic feature of Rip-stein’s proposal is not his contention that trespass is somehow morallyoffensive. Rather, it is the direct move, implicitly made by the sover-eignty principle, from that claim to the conclusion that trespass maytherefore be legally prohibited. That move, of course, runs afoul ofMill’s insistence that the only legitimate routes from the identificationof something as immoral to its legal prohibition pass through a borderpost at which preventable harms to others must be convincinglydocumented.

One excellent reason to hold fast to this Millian line is that thereare very many conceivably objectionable forms of behavior beyondthose that the sovereignty principle identifies. Clearly, that principlecannot by itself explain why violating personal independence is the

9. Mill was quite clear about this, arguing explicitly that many actions that should notbe criminalized are nevertheless serious moral wrongs. See Mill, p. 147.


only form of wrongdoing that may be legally prohibited. Why not otherforms of wrongdoing or immorality? What is it about violations ofpersonal sovereignty that make them the unique objects of legitimatecriminalization?

Once again, Mill’s followers seem to have a more plausible way ofaddressing this issue. To them, what distinguishes those forms of wrong-doing that we may legally punish from those we should not is that only inthe former cases do the harms we can prevent by criminalization signifi-cantly exceed in gravity and extent those we will cause by empoweringthe state to monitor, investigate, threaten, coerce, try, and punish pos-sible perpetrators. Having ditched this standard argument, however,how does Ripstein propose to distinguish harmless trespass, which heinsists does deserve criminal prohibition, from (say) pleonexia, infidel-ity, the shameless mendacity on the part of corporate operatives, hatred,indifference to the suffering of others, bigotry, selfishness, holding andexpressing racist beliefs, mindless zealotry, vengefulness, and so forth,which he presumably thinks do not? All of these are plausibly immoral.Most have victims, and it is not obvious that “harmless trespass” is theonly item on this list that exemplifies contempt for agents’ autonomy orpersonal independence. If it is bare objectionableness, not harmfulness,that ultimately counts, however, why is there not at least a prima faciecase for criminalizing all of these on Ripstein’s view?

Perhaps Ripstein might answer that the exclusive concern with thosewrongs that take the form of violations of personal sovereignty is man-dated by the liberal ideal of equal freedom that he extensively discussesin the second half of his article. On this reply, we cannot depart from thesovereignty principle without sacrificing our allegiance to liberalism andits leading values. This line of response is strongly suggested by Rip-stein’s recurring complaint that the harm principle might promoteresults that are “illiberal” or unacceptable to so-called friends of freedom(pp. 221, 225, 228, 242 n. 47). The clear implication of these passages isthat the sovereignty principle is the superior principle because it ismore purely “liberal.”

Even if we knew what “liberalism” means here, however, and even ifwe agreed that political principles should be judged by their fidelity to it(why?), this response would still beg the question. It remains to beexplained why specifically liberal views of what is fundamentally morallyobjectionable are entitled to special consideration as far as legal restric-


tions are concerned. If Kantian liberals are allowed to insist that whatthey regard as fundamentally immoral deserve to be converted intocriminal offenses quite apart from any harm they do, why shouldn’t thesame privilege be extended to those (Christians, socialists, Muslims,ecologists, feminists) whose ideals lead them to regard avarice, usury,consumerism, infidelity, chauvinism, pornography, and the like, as com-parably morally offensive?

These questions underline a significant cost of substituting the sover-eignty principle for the harm principle. By lifting the requirement thatthere be a showing of serious harm in order to justify criminal prohibi-tions, Ripstein’s proposal would effect a subtle but very significant shiftin the burdens of proof. Advocates of a criminal prohibition need nolonger establish that it is required to prevent serious harms; they needonly show that the conduct to be prohibited is independently objection-able. At the same time liberals like Ripstein now bear a new burden: theymust explain why only some sorts of morally objectionable conduct(i.e., those targeted by the sovereignty principle) but not others shouldbe legally punishable.

I do not find in Ripstein’s article any arguments sufficiently powerfulto meet this burden. We have seen that the nap example is at best inde-cisive on this point. And bare assertions of the sovereignty principleitself simply beg the question. Perhaps other arguments, waiting in thewings, might prove up to the task. But on the evidence of the presentarticle, Ripstein has yet to provide sufficient reasons for privileging hisown Kantian liberal form of legal moralism over other forms of legalmoralism. As a result, Ripstein’s proposal looks in the end like justanother plea from a particular ideological constituency that certainmoral wrongs ought to be criminalized. It leaves us, in other words, inexactly the predicament from which Mill hoped to extricate us bymeans of the harm principle, one in which people “preoccupy them-selves rather in inquiring what things society ought to like or dislike,than in questioning whether its likings or dislikings should be alaw to individuals.”10

10. Mill, p. 76.


Documents

Harm Versus Sovereignty: A Reply to Ripstein