Type 1: Ripstein’s “Beyond the Harm Principle”
The harm principle introduces the individual’s sovereign sphere. Ripstein argues that in order to commit to the sovereignty of the individual, you must abandon the harm principle altogether (Ripstein 215). The sovereignty principle limits state power by defining what is within the individual’s sovereign sphere. This contrasts with the harm principle, which limits individual action by defining what actions are subject to state action through the means of criminalization.
In order to examine the sovereignty principle and its differences from the harm principle more closely, Ripstein leads his narrative with an example of harmless wrongdoing. In this example, Ripstein breaks into my house without damage and perfectly sleeps in my bed. I obviously feel wronged by such an event, but why? Ripstein explains that the example does not constitute harm, so I do not feel wronged because of the harm caused to me. Ripstein goes on to explain that one is objecting to the deed, not its effects, the latter of which is the sole focus of the harm principle (Ripstein 218).
Ripstein then proves the fallacy of two defenses of the harm principle. The first dense states that in order to prevent the category of harm known as harmful trespass, all trespassing should be prohibited (Ripstein 222). Ripstein explains that this broad prohibition is unnecessary. If the harm principle is based in harm, then only harmful instances of trespassing should be able to be criminalized and to criminalize all trespassing outright is an overstep of the limits set out by the harm principle (Ripstein 224). The second defense of the harm principle says that “my nap should be prohibited in order to protect property more generally. Allowing violations of the basic rules governing property will destabilize the institution of property,” (Ripstein 224). However, if the violation of the rules governing the practice of property does not threaten its collapse, then there is no basis to prohibit the action according to the harm principle. Overall, Ripstein shows how the harm principle falls short of explaining why this harmless wrongdoing should be prohibited.
Ripstein then demonstrates how the sovereignty principle accounts for those things that the harm principle cannot. First, the sovereignty principle explains that harm matters because when someone harms you, they subject you to their choice and leaves you without your own powers, thus interfering with your sovereignty. This concept of the usurpation of powers translates to the usurpation of property. By sleeping in someone else’s bed without their permission, Ripstein usurps my property. This usurpation of my property means that my powers are being used to advance purposes that are not set by me. Even though I was not harmed by Ripstein’s nap, my powers were usurped, and I was wronged. Second, the sovereignty principle also explains why harm does not matter in cases of self-injury or cases where consensual voluntary risk was taken by two individuals. In these cases, there was no domination involved. In self injury, no one is subjecting that individual to harm. While harm occurs, the individual is acting within their own sovereignty in their actions. In the second example of harm resulting from mutually undertaken risk, there is no despotism taking place because the consent of both individuals indicates that both individuals are exercising their sovereignty.
In his writing, Ripstein analyzes the shortcomings of the harm principle and its inability to address harmless wrongdoings; he establishes the sovereignty principle as a more adequate way to think about the prohibition of these harmless wrongdoings and harmful wrongdoings as well. The sovereignty principle explains that the inference with an individual’s sovereign state is grounds for criminalization, indifferent to harm.
