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Speaker: Arthur Ripstein, Professor of Law and Philosophy, University of Toronto
Summary by Annie Stilz, Edmond J. Safra Graduate Fellow in Ethics
Professor Ripstein began his lecture with a reiteration of J.S. Mill's well-known harm principle, often taken to an important basis for liberal views of the criminal law. Simply stated, the harm principle holds that only those acts that harm or threaten harm to others should be prohibited. Ripstein noted that immediately following the passage in which he introduces the harm principle, Mill states that the harm principle serves to create a sphere in which the individual can be thought of as sovereign. Ripstein then introduced what was to be the main thesis of his presentation: if we take this idea of sovereignty seriously, it forces us to abandon the harm principle. He further articulated his own alternative to the harm principle, the "sovereignty principle," which attempts to take more seriously the idea that each individual can have a sphere of equal freedom. In particular, Ripstein argued that the sovereignty principle can do something the harm principle does not: it can explain why harm matters in the cases where it does; and also why harm does not matter in the cases where it seems not to do so, as in harm inflicted on oneself, or harm incurred from participating in consensual activities, as a fair contest, for example.
To introduce the sovereignty principle, Ripstein invoked a hypothetical example of harmless wrongdoing, one which he assumed that (despite the lack of resulting harm) his audience would agree should be prohibited by the criminal law. The case is one in which I let myself into your house, picking the lock so as to leave no trace, and while wearing a hairnet, protective clothing, and gloves, take a nap in your bed. No identifiable harm has been done to you, but you probably feel wronged despite this, and Ripstein asserted that the harm principle cannot explain this sense of wrong. Ripstein also cleared away three ‘side issues,’ issues that might at first glance appear to be the source of the wrong done, but which in fact are not. First, it might appear that the problem with this act of harmless wrongdoing is that it shows a lack of character or respect. Ripstein argued that this may be true, but that it is not the case that lack of character or respect is the source of our feeling of wrong. Attempting to break into your home (without succeeding) would show the same lack of respect for you, but would not generate the same sense of wronging. Likewise, the problem cannot be that my action would generate fear in you, and so therefore must be counted as a real harm. The harm principle is only concerned with harms that are in fact real harms, and not with people’s opinions or perceptions of actions as harmful. Finally, the problem is not that I didn’t ask permission to come into your house. My failure to ask permission is not a harm unless this sort of act is already clearly established as something I need permission to do. In order for this to qualify as an objection, it must first be established that harmless nap in your bed is something I am not allowed.
Ripstein postulated that in response to this example, defenders of the harm principle would adopt one of the following two strategies of argument. Either they would argue that a) a rule prohibiting this kind of trespass on the whole reduces harm, and that this is only way or the minimal way to prevent a recognizable larger class of harms (harmful trespass) from ensuing; or they would argue that b) the act violates rules of an important social practice, in this case the practice of private property. The first strategy fails, according to Ripstein, because it is over-broad. While this strategy contends that it is necessary to prohibit this harmless wrong in order to prevent harmful trespasses, Ripstein argued that this in fact means prohibiting a larger class of activity than is needful. There are many dangerous acts of trespass, but we actually have effective ways of identifying these, so it is not necessary in addition to also prohibit this act. Here the example given seems to be just as objectionable although it isn’t dangerous. In response to the second strategy, Ripstein argued that my act of harmless wrongdoing does nothing to destabilize the rules of the social practice of private property: the practice will not in fact collapse because I slept in your bed. If this class of violations is harmless to the practice—if it produces no destabilizing effect—then there is no reason to prohibit it because private property is a valuable practice. The nap would only need prohibition if it could be proved that it actually endangered private property somehow. Finally, Ripstein argued that the problem with these indirect strategies is that they seem to miss what is really problematic about the nap. Only by redescribing the act in some way can they fit it into a class of wrongs covered under the harm principle.
Instead, Ripstein contended that the sovereignty principle provides a better way of thinking about what is actually wrong with the harmless nap. As seen above, Mill describes the individual is sovereign in sphere that regards him/herself. The best way to understand this, argued Ripstein, is as a set of reciprocal limits on freedom, in a Kantian sense. Everyone is entitled to widest sphere of freedom consistent with others having a like freedom. The only grounds for limiting freedom, on this view, are based in freedom itself. This idea, noted Ripstein, has been exposed to a powerful objection: that one cannot have a system that is just made up of limits on freedom. In order to decide which freedoms matter, one requires additional information. For example, my interest in the freedom to keep you off my property may conflict with your interest in having the freedom to cross it—how are we to decide between them? Weighting particular freedoms may seem to require more substantive input than a simple commitment to the importance of freedom itself gives.
But Ripstein responded that this objection fails, because there is a better way of thinking about freedom. The sovereignty principle understands freedom as independence, where independence is a matter of not being subject to choice of another person. This makes it possible to come up with an idea of equal freedom, according to which people are equally free if no person is subject to any other person’s choice. This ideal of independence is often associated with the political tradition of republicanism, which held that despotism is intrinsically bad, even if one is subject to a benevolent despot. The basic problem with despotism is that it deprives us of the ability to make our own choices, and the sovereignty principle extends this originally political idea to relations among private individuals. Despotism in this more general framework can be interpreted as using someone else’s powers where only they themselves are supposed to be free to use them. By usurping your powers through lying to you or deceiving you, or by destroying your powers so that you cannot make choices, I use you for a purpose that you didn’t set yourself.
The sovereignty principle can, in this way, explain why harm matters: if I harm you, I deprive you of your powers, and thereby make you subject to my choice. It can also explain why harm doesn’t matter, in cases where it seems not to, as in cases of fair contests, of volenti non fit inuria, or of harm to self. In all of these cases, no usurpation or destruction of the ability to choose and to set one’s ends for oneself is involved, because one has consented. One’s consent legitimizes what might otherwise be an exercise of despotism. Finally, the sovereignty principle, according to Ripstein, can also explain what is wrong with harmless crimes against property like the example of my taking a nap in your bed, because your property should be seen as part of the powers that are external to your own person, and that are important for your exercise of the power of choice. When I take a nap in your bed, I usurp your property. By usurping your property, I wrong you by using your powers for purposes which are not yours, and therefore by exercising domination over you.
Ripstein claimed that the sovereignty principle’s view of harmless property crime does not depend on controversial theses about whether property is bundle of rights or a social practice. For the purposes of criminal law, property is simply the sum of means at your disposal for setting your own ends. However you may have acquired property, what is significant about it now is that you have it as part of your external powers, and that a regime of equal freedom is a regime where everyone uses property as they see fit. The sovereignty principle’s view, then, is that the ‘wrongness’ involved in invading someone’s property is tantamount to a usurpation of their power of choice, and Ripstein concluded that this view is compatible with a wide range of theses about what property is, and what the limits of ownership are. Once these limits are in place, any violation of them is an exercise of domination over an individual’s sovereign sphere.