Beyond the Offense Principle: Summary and Application of “Beyond the Harm Principle”
In “Beyond the Harm Principle,” Ripstein critiques the limitations of Mill’s harm principle to articulate the details of harm by suggesting a new principle focused on preserving liberties rather than preventing harm. Ripstein calls this principle the sovereignty principle and is his answer to what is the end of criminalization. In this essay, I first summarize Ripstein’s claims and some of his arguments for the sovereignty principle and then demonstrate that the principle can be used not only to absolve the harm principle, as Ripstein demonstrates, but also Feinberg’s offense principle.
The sovereignty principle is as follows:
“The only legitimate restrictions on conduct are those that secure the mutual independence of free persons from each other.” (Ripstein, 224)
In the sovereignty principle, Ripstein is explicitly referring to the idea of equal freedom or the idea that each person has the ability to use their power for their own purposes in relation to others using their own powers for their own purpose (231). A system of equal freedom requires that no one use their powers to usurp or destroy another’s power which is done either by non-consensual use of another’s power or harm and injury (Ripstein, 234). The system of equal freedom, while focusing on allowing people to pursue what they want, does not, however, require that anyone provide the context for someone else to do what they want in the interest of mutual independence (Ripstein 240).
Ripstein, like Mill throughout On Liberty, is working under liberal principles that every person has that right to their own personal liberties and that it is the role of the social institutions to allow those liberties (Ripstein, 215, 243). While Mill seems to suggest that harm functions by restricting personal liberties, Ripstein claims that Mill limits the use of the harm principle by putting it in terms of harm instead of personal liberties (217).
Ripstein argues that there are harmless wrongdoings that legitimate restrictions ought to be placed upon that the harm principle cannot be used to address (217). His main working example to demonstrate the failings of the harm principle pertains to harmless trespassing: the reader is to imagine that while they are reading the essay somewhere out of their house, Ripstein goes into their house and takes a nap in their bed without harming anything or anyone (218). Ripstein is able to dismiss arguments that try to find harm in parts of the situation by proving that if the law is concerned with harms from bad character, fears, and lack of communication then the harm principle can be extended to create prohibitions that defenders of the harm principle would probably want to exclude on a liberal account (222). Ripstein then shows that the example can be thought of in terms of sovereignty as follows: by sleeping in the reader’s bed, the trespasser is using the reader’s personal powers without their consent. According to the sovereignty principle, harmless trespassing ought to be prohibited because the trespasser is using someone else’s power without their permission and violating terms of mutual independence (Ripstein, 240). By freeing the situation from discussion of harms, Ripstein is able to come up with a stable positive reason for prohibiting situations where harm could be done that withstands liberal violations like the indirect solutions proposed by defenders of the harm principle.
Ripstein shows that the sovereignty principle, almost like a broadened version of the harm principle, serves all of the purposes that defenders of the harm principle are concerned with. He does not, however, extend his principle to Feinberg’s offense principle and I am curious as to how we can fit Feinberg’s concerns into the sovereignty principle.
Like in his argument against the harm principle, I think it is likely that Ripstein and defenders of the sovereignty principle would say that the offense principle cannot work because it is not articulated in terms of maintaining liberties of conduct but rather an effect of conduct, in this case offense instead of harm. The main problem with the focus on offense is that, like harm, it can create laws that are unintentionally liberal when the main goal should be maximizing freedoms. By changing the focus of Feinberg’s discussion from the psychological effects of offense in the fourth section of “Offensive Nuisances” to how offense functions in terms of people using their power to pursue what they want, we may be able to fit the concerns of both the harm and offense principles into the sovereignty principle.
Let’s take Feinberg’s example where the reader is to imagine themselves on a bus and is witnessing offensive actions like beastiality and eating feces (Feinberg, 10–13). By demonstrating that the offended state is highly undesirable for members of a society, Feinberg concludes that restricting offense on the bus should be within the limits of the state (22). To fit into Ripstein’s structure, we can rephrase the reasonable concern that the legislature ought to have about the bus situation and also shift the focus from the liberties of the bus riders to the liberties of the bus owners. The public bus is the property of the government and thus is a power whose purpose and use is under government’s control under the notions of equal freedom. The purpose of the bus, as suggested by Feinberg throughout the example, is to get people to places in a relatively comfortable setting to help produce desirable members of society. Under the notions of equal freedom, the bus does not need to be provided as a context for anyone to pursue their own purpose. By performing cunnilingus on their dog on the bus (Feinberg, 12), the offender is not in the wrong for offending someone but for using the power of government property for their own purposes of being sexually intimate with their dog. To use someone else’s power properly, the offender must get consent, meaning that regulations on what can occur on the bus are well within the liberties of the government according to the sovereignty principle. All harmless offenses that concern Feinberg must occur in situations where the use of power, in most cases government or public power, is brought into question. By reforming the concern of offense to the concern of uses of power, Feinberg’s situations of interest can be handled alongside the harm principle within the sovereignty principle.
Works Cited
Feinberg. “Offensive Nuisances.” The Moral Limits of the Criminal Law, Oxford University Press, 1985, p 1–22.
Ripstein. “Beyond the Harm Principle.” Philosophy & Public Affairs, Vol. 34, №3, Wiley, 2006, p. 215–245.
