No Harm: Ethical Principles for a Free Market

By T. Patrick Burke | Go to book overview

9
The Principle of No Harm III

THE THIRD PRINCIPLE .
THOSE WHO DO NOT CAUSE HARM DELIBERATELY OUGHT NOT TO BE PUNISHED

This follows from the first and second principles. The first principle is that human beings ought not to be harmed unless they have caused harm to others. The second is that those who have caused harm to the innocent deserve to be punished. Since punishment is a form of harm, it follows that those who have not caused harm ought not to be punished.

Our thesis is that there are no grounds on which a person can deserve to be punished other than that he has caused harm to others, or to society, in the sense explained above. In earlier chapters we have argued that it does not make sense to believe that it is possible to cause harm to a person by trading with him, or by refusing to trade with him, in the absence of force and fraud, whatever the terms of the trade, and similarly that it does not cause harm to society.

It is often assumed that other grounds have historically been accepted for punishment than the causing of harm, notably those forms of immorality which do not cause harm, for example sexual immorality, and the paternalistic desire to protect individuals against themselves, as in the case of laws prohibiting gambling. There is reason to believe, however, that both of these have been made the subject of law primarily out of a belief that they are harmful to society.

The best-known argument in recent times for legislation against immorality has been that put forward by the British justice, Lord Patrick Devlin, in a work which otherwise merits high regard.1 Devlin's argument

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