Legal Moralism and the Harm Principle: A Rejoinder

Abstract

In "Harm Versus Sovereignty: A Reply to Ripstein," Colin Bird criticizes several arguments of my article "Beyond the Harm Principle." In my earlier article I raised two objections to the Harm Principle, before going on to develop my alternative. The first is that it is underinclusive, because it is unable to identify a significant class of wrongs that a liberal state would want to prohibit: harmless trespasses against person and property. The second is that it requires independent grounds to explain which harms merit prohibition. Bird seeks to answer the first challenge by denying that the harm principle has any difficulty at all in accommodating those harmless trespasses that merit prohibition, and to answer the second by proposing that harms be balanced against each other to determine where prohibition is justified. In this brief response, I show that Bird's conceptualization of the harm principle enables it to account for my examples only by making it so elastic as to provide no real constraint on prohibition. Bird defends the harm principle as an alternative to what he calls "legal moralism," the legal prohibition of acts based on their nature rather than their effects on others. I shall show, however, that his interpretation of the harm principle generates an indirect form of legal moralism.