The collapse of the harm principle.

• Author: Harcourt, Bernard E.

1. INTRODUCTION

   In November 1998, fourteen neighborhoods in Chicago voted to shut down their liquor stores, bars, and lounges, and four more neighborhoods voted to close down specific taverns. Three additional liquor establishments were voted shut in February 1999. Along with the fourteen other neighborhoods that passed dry votes in 1996 and those that went dry right after Prohibition, to date more than 15% of Chicago has voted itself dry. The closures affect alcohol-related businesses, like liquor stores and bars, but do not restrict drinking in the privacy of one's home. The legal mechanism is an arcane 1933 "vote yourself dry" law, enacted at the time of the repeal of Prohibition, and amended by the state legislature in 1995.(1)

   Chicago's temperance movement reflects a fascinating development in the legal enforcement of morality. Instead of arguing about morals, the proponents of enforcement are talking about individual and social harms in contexts where, thirty years ago, the harm principle would have precluded regulation or prohibition. Chicago is a case on point. The closures are part of Mayor Richard Daley's campaign to revitalize neighborhoods. The campaign focuses on the harms that liquor-related businesses produce in a neighborhood, not on the morality or immorality of drinking. "People are voting for their pocketbook, for home values, for church, children and seniors," Mayor Daley is reported to have said. "This is a quality of life issue, not an attempt to impose prohibition."(2)

   A similar shift in justification is evident in a wide range of debates over the regulation or prohibition of activities that have traditionally been associated with moral offense--from prostitution and pornography, to loitering and drug use, to homosexual and heterosexual conduct. In a wide array of contexts, the proponents of regulation and prohibition have turned away from arguments based on morality, and turned instead to harm arguments. In New York City, for example, Mayor Rudolph Giuliani has implemented a policy of zero-tolerance toward quality-of-life offenses, and has vigorously enforced laws against public drinking, public urination, illegal peddling, squeegee solicitation, panhandling, prostitution, loitering, graffiti spraying, and turn-stile jumping. According to Mayor Giuliani, aggressive enforcement of these laws is necessary to combat serious crime--murders and robberies--because minor disorderly offenses contribute causally to serious crime. The justification for the enforcement policy is the harms that the activities cause, not their immorality. "[I]f a climate of disorder and lack of mutual respect is allowed to take root," Mayor Giuliani argues, "incidence of other, more serious antisocial behavior will increase.... [M]urder and graffiti are two vastly different crimes. But they are part of the same continuum...."(3)

   Similarly, in the pornography debate, Professor Catharine MacKinnon has proposed influential administrative and judicial measures to regulate pornographic material.(4) Her enforcement proposals, again, are not based on the immorality of pornography. Instead, the principal justification is the multiple harms that pornography and commercial sex cause women. "[T]he evidence of the harm of such material," MacKinnon explains, "shows that these materials change attitudes and impel behaviors in ways that are unique in their extent and devastating in their consequences."(5) MacKinnon's provocative discourse, and her vivid descriptions of injury, violence, and rape, are all about harm. In a similar vein, the recent crack-down on commercial sex establishments--peep shows, strip clubs, adult book and video stores--in New York City has been justified in the name of tourism, crime rates, and property value, not morality. As Mayor Giuliani explains, the campaign to shut down pornography businesses "will allow people to restore and maintain their neighborhoods, and protect generations of New Yorkers against ... the destabilization that [sex shops] cause."(6)

   A similar development has taken place in the debate over homosexuality. In the 1980s the AIDS epidemic became the harm that justified legal intervention. When San Francisco and New York City moved to close gay bathhouses in the mid-1980s, the argument was not about the immorality of homosexual conduct. Instead, the debate was about the harm associated with the potential spread of AIDS at gay bathhouses. Former New York State Governor Mario Cuomo, who endorsed the strict regulation of gay bathhouses and threatened to close down noncompliant establishments, emphasized harm, stating: "We know certain sexual behavior can be fatal. We must eliminate public establishments which profit from activities that foster this deadly disease."(7) The same argument about harm has been used to justify the regulation of sexual practices among military personnel infected with the HIV virus.(8)

   In fact, the focus on harm has become so pervasive that the concept of harm, today, is setting the very terms of contemporary debate. This is illustrated well, again, in the pornography context. In response to MacKinnon's proposal to regulate pornography, Professor Judith Butler has argued, in her recent book, Excitable Speech: A Politics of the Performative,(9) that the very etiology of pornography's harm suggests a different remedy. Butler's argument, in effect, is that the harm to women caused by pornography is not constitutive, but allows for a spatial and temporal gap within which personal resistance can be mounted. Similarly, in striking down MacKinnon's proposed ordinance in Indianapolis, Judge Frank Easterbrook acknowledged the harm that pornography causes women. According to Easterbrook, it is precisely the harm of pornography that "simply demonstrates the power of pornography as speech,"(10) and requires protected status under the First Amendment. Harm, not morality, structures the debate.

   This is illustrated also in the ongoing controversy over the legalization of marijuana and other psychoactive drugs. In response to a wave of enforcement of anti-drug policies in the 1980s--a wave of enforcement that was justified because of the harms associated with drug use and the illicit drug trade--the movement for drug policy reform has increasingly turned to the argument of "harm reduction." Whereas thirty years ago the opponents of criminalization talked about marijuana use as a "victimless crime"--as not causing harm to others--the opponents of criminalization now emphasize the harms associated with the war on drugs. Ethan Nadelmann, the director of an influential drug reform policy center in New York City, and other reformers have carefully crafted and employed the term "harm reduction." Their focus is on designing policies that will reduce the overall harm associated with drug use and drug interdiction policies. Nadelmann's main argument is that we must "[a]ccept that drug use is here to stay and that we have no choice but to learn to live with drugs so that they cause the least possible harm."(11) Again, harm, not morality, now structures the debate.

   1. A RECENT DEVELOPMENT IN THE DEBATE OVER THE LEGAL ENFORCEMENT OF MORALITY

      As we approach the end of the twentieth century, we are witnessing a remarkable development in the debate over the legal enforcement of morality.(12) The harm principle is effectively collapsing under the weight of its own success. Claims of harm have become so pervasive that the harm principle has become meaningless: the harm principle no longer serves the function of a critical principle because non-trivial harm arguments permeate the debate. Today, the issue is no longer whether a moral offense causes harm, but rather what type and what amount of harms the challenged conduct causes, and how the harms compare. On those issues, the harm principle is silent. This is a radical departure from the liberal theoretic, progressive discourse of the 1960s.

      More formally, in the writings of John Stuart Mill, H.L.A. Hart and Joel Feinberg, the harm principle acted as a necessary but not sufficient condition for legal enforcement.(13) The harm principle was used to exclude certain categories of activities from legal enforcement (necessary condition), but it did not determine what to include (but not sufficient condition), insofar as practical, constitutional or other factors weighed into the ultimate decision whether to regulate a moral offense. Today, although the harm principle formally remains a necessary but not sufficient condition, harm is no longer in fact a necessary condition because non-trivial harm arguments are being made about practically every moral offense. As a result, today, we no longer focus on the existence or non-existence of harm. Instead, we focus on the types of harm, the amounts of harms, and the balance of harms. As to these questions, the harm principle offers no guidance. It does not tell us how to compare harms.(14) It served only as a threshold determination, and that threshold is being satisfied in most categories of moral offense. As a result, the harm principle no longer acts today as a limiting principle with regard to the legal enforcement of morality.

      The collapse of the harm principle has significantly altered the map of liberal legal and political theory in the debate over the legal enforcement of morality.(15) To be sure, the liberal criteria themselves have not changed. As in the 1960s, it is still possible today to define "liberalism," in the specific context of the legal enforcement of morality, on the basis of the same three criteria, namely (1) that it is a justifiable reason to limit an

      individual's freedom of action if their action causes harm to other persons (the harm principle), (2) that it is also a justifiable reason to limit someone's activities in order to prevent serious offense to other persons (the offense principle), and (3) that it is generally not a justifiable reason to limit harmless...