Extending the Harm Principle: 'Remote' Harms and Fair Imputation
Andrew von Hirsch* Formerly, proposals to extend the reach of the criminal law often were rationalized on paternalistic grounds, or on grounds of the conduct's supposed 'sinfulness'. Such efforts could be challenged by appealing to the harm principle-that is, the requirement that the conduct involved be harmful to others. The harm principle thus served as a valuable antidote, a way of keeping the scope of the criminal law modest.
At present, however, efforts to widen the law's scope are often rationalized in a different manner, that is designed to co-opt the harm principle: appeal is made to the conduct's supposed long term risk of harm to others. A variety of prohibitions (for example, those relating to drug use1) have been defended by reference to the eventual deleterious social consequences to which the conduct leads. Extending 'harm' in this fashion, thus may erode the usefulness of the harm principle as a constraint on the state's punitive power. This raises the present question: what limitations of principle should there be upon the invocation of more 'remote' forms of risk, as grounds for criminalization?
My thinking on this question has not reached the point where I can offer a full, positive account. I shall, however, suggest how and why a conven-____________________
I am particularly indebted to Andrew Ashworth, who helped me conceptualize the whole approach, and to Andrew Simester and Antony Duff who supplied me with extensive written comments. I am grateful also to Stanley Cohen, Hyman Gross, Douglas Husak, and Nils Jareborg for their suggestions on earlier drafts.