Paul Curry

Narrowing Towards Harm: A Reflection on the Harm Principle’s Ascendancy in the Courts

Recent history of law in Canada, the United States and elsewhere, reveals a marked tendency towards a dependence on the ‘harm principle’ as the sole justification for legal action. In liberal circles this development is seen as largely positive. Non-liberals, on the other hand, are faced with two options (barring reversal of this tendency): they can couch their arguments in Millian garb or they can insist on using non-Millian arguments – arguments which, if the courts continue in the current vein, will ultimately fall upon deaf ears. The question my paper considers, then, is this: are courts wise to move towards a purely harm-based framework for criminal law? I present three points I believe the courts fail to see as they tend towards dependence on the harm principle: they rely too heavily on its false intuitive appeal; they do not account for or make explicit the fact that the harm principle does not justify rights but in fact relies on a conception and ordering of rights; and lastly, they do not account for the fact that the harm principle is not neutral between worldviews. I also consider a counterintuitive result of the harm principle which suggests its inadequacy as an exclusive rule governing relations between citizens. The goal of these arguments is to cast doubt on the adequacy of the harm principle as the sole or privileged basis for criminal law.