1. Earlier versions of this article were presented at the GALA workshop at Boalt Hall, University of California at Berkeley, at the John F. Kennedy School of Government at Harvard University, and at the Legal Theory Workshop at Yale Law School. A still earlier oral version was presented at a conference at the University of Toronto commemorating the bicentennial of Kant's death. Many people provided helpful questions and comments on those occasions. I am especially grateful to Bruce Ackerman, Arthur Applbaum, Michael Blake, Peter Cane, Jules Coleman, Meir Dan-Cohen, Gerald Dworkin, John Gardner, Louis-Philippe Hodgson, Douglas Husak, Sandy Kadish, Niko Kolodny, Christine Korsgaard, Mathias Risse, Samuel Scheffler, Wayne Sumner, Lynne Tyrell, Ernest Weinrib, Karen Weisman, and the Editors ofPhilosophy & Public Affairsfor their comments on earlier versions, and to Seana Shiffrin for sharing some unpublished material with me.
2. Are There Any Natural Rights?
3. 2. The harm principle probably gets some of its intuitive appeal from the thought that, because punishment harms the criminal, it can only be justified if it prevents greater harms. Bentham makes just this point when he writes, "But all punishment is mischief: all punishment in itself evil. Upon the principle of utility, if it ought at all to be admitted, it ought only to be admitted in as far as it promises to exclude some greater evil"A Fragment of Government with an Introduction to the Principles of Morals and Legislation(Cambridge: Cambridge University Press, 1988), at p. 281. Mill echoes him: "all restraint,quarestraint, is an evil" (On Liberty, chap. 1, para. 13). This way of thinking about the harm principle attaches special significance to harm that is much less plausible outside the criminal law. Defenders of freedom usually think that private persons can engage in a wide variety of self-serving behavior that will cause losses to others, such as the harm I suffer when you get the last ticket to the concert I had hoped to attend. The infliction of such harms is sometimes said to be justified by the benefits brought by market provision of scarce goods. The claim that the infliction of harm can be justified by the provision of benefits already requires going beyond this "harm for harm" rule.
4. 3. The extended defense of the harm principle by the late Joel Feinberg, in his multivolume workThe Moral Limits of the Criminal Law(Oxford: Oxford University Press, Various Dates) provides a clear model for the narrow construal. Feinberg explicitly defines harm as a "setback to an interest." This formulation appears to leave room for a broad interpretation of harm according to which a violation of a property right would qualify, even if it was not harmful in any more colloquial sense. Feinberg's own text makes it clear that this is not the way in which he understands the principle. For example, on page 31 of the first volume of the set,Harm to Others, Feinberg says that his aim is to analyze the idea of harm without "mentioning causally contributory actions." On this understanding, although interests may be complex, it must be possible to identify them independently of what violates them. He talks about "preventing (eliminating, reducing) harm" as a legitimate purpose of the criminal law. These are all, non-accidentally, causal concepts, precisely because the effect is supposed to be identifiable apart from the harmful cause. Because Feinberg sets things up in this way, unauthorized use of your property only qualifies as a setback to your interests if it has effects on you that can be identified independently of how they come about. On this understanding, you do not have "stake" (to use Feinberg's preferred term) in excluding others. Any complaint you might have would have to fall into the category of things that are "Disliked but Not Harmful" (Harm to Others, p. 47).Feinberg's discussion of insider trading, on page 222 of volume three,Harmless Wrongdoing, makes it clear that this is how he thinks about harm. In the Introduction toHarm to Others, Feinberg introduces the notion of a stake by talking about the "stake" investors have in the stocks they own-an interest in the stock doing well (Harm to Others, p. 33). Insider trading has the formal structure of my napping in your bed. An insider sells stock based on confidential information, and, as traditional legal analysis would have it, breaches a fiduciary obligation owed to shareholders, that is, uses his office for purposes that they, the owners of the stock, have not authorized. Feinberg rejects the traditional legal interpretation, arguing instead that the only grounds for prohibiting insider trading is that its general practice would be disastrous in its effects on the liquidity of equity markets. He tries to identify a negative consequence, because mere advantage taking falls outside the notice of the harm principle unless it has bad consequences.