Actionable Harm and the Role of The State

This post offers a comprehensive version of my “harm principle” — which I have discussed here, here, and here — and outlines its implications for state action. I will from time to time revise this post and expand the selected bibliography of relevant posts at the end. Many of those posts include links to other relevant posts, and all of them form the foundation for what I say here.

The following principles rest on the axiom that a state is inevitable — a proposition I expound in several of the posts listed in the bibliography. Given the inevitability of a state, the challenge is to ensure that the state defends liberty and does not suppress it. The following principles of actionable harm and state action, if observed, would conduce to liberty.

1. The state should not act — or encourage action by private entities — except as it seeks to deter, prevent, or remedy an actionable harm to life, liberty, property, or the pursuit of happiness (hereinafter “liberty”).

2. An actionable harm to liberty is one that

a. arises or would arise from the commission of an overt act or acts by any person or entity, domestic or foreign;

b. contravenes socially evolved norms of behavior; and

c. is inflicted on any person who lacks a voice in the shaping of the norms of behavior and is held captive in the locale in which those norms hold sway.

3. An actionable harm to liberty may be immediate (as in the case of murder) or predictable (as in the case of pollution). But actionable harms extend beyond those that are immediate or predictable. Harms also result from actions by the state that strain and sunder the bonds of trust that make it possible for a people to coexist civilly, through the mutual self-restraint that arises from voluntarily evolved social norms. Concerted uses of state power have in recent decades deeply eroded such norms. The result has been to undermine the trust and self-restraint that enable a people to enjoy liberty and its fruits while relying on the state solely for the defense of that liberty and those fruits. For example:

  • Affirmative action and other forms of forced racial integration deny freedom of association, prolong racial animosity, impose unwarranted economic harm on those who are guilty of nothing but their skin color, and generally deprive persons of liberty and property without due process of law.
  • The authorization of abortion suborns infanticide and invites euthanasia of the infirm and elderly.
  • The legal enshrinement of gay rights will have the same anti-libertarian effects as affirmative action and other forms of forced integration.
  • State recognition of gay marriage will undermine heterosexual marriage, which is an essential civilizing institution.
  • The acquiescence by power-seeking politicians in the indiscriminate admission and granting of citizenship to persons from Central America — in the face of great popular opposition — will impose heavy economic costs on Americans, further undermine our already strained commitment to limited government, and multiply the cultural and ethnic divisions in the nation.

4. An expression of thought cannot be an actionable harm unless it

a. amounts to defamation;

b. would directly obstruct governmental efforts to deter, prevent, or remedy an actionable harm (e.g., divulging classified defense information, committing perjury);

c. intentionally causes or would directly cause an actionable harm (e.g., plotting to commit an act of terrorism, forming a lynch mob);

d. purposely — through a lie or the withholding of pertinent facts — causes a person to act against self-interest in an economic transaction (e.g., misrepresenting a product, inflating a corporation’s statement of earnings); or

e. purposely — through its intended influence on government — results in what would be an actionable harm if committed by a private entity (e.g., the taking of income from persons who earn it, simply to assuage the envy of those who earn less). (The remedy for such harms should not be suppression or punishment of the harmful expressions but — through the enactment and enforcement of constitutional limits on the power of the state — assurance that they cannot influence public policy.)

With those exceptions, a mere statement of fact, belief, opinion, or attitude cannot be an actionable harm. Otherwise, those persons who do not care for the facts, beliefs, opinions, or attitudes expressed by other persons would be able to stifle speech they find offensive merely by claiming to be harmed by it. By extension, persons who claim to be offended by the superior income or wealth of other persons would be entitled to recompense from those other persons.

5. A private, voluntary act of omission (e.g., the refusal of social or economic relations for reasons of personal preference), other than a breach of contract or duty, cannot be an actionable harm. It is incompatible with liberty for the state to judge, punish, or attempt to influence private, voluntary actions that are not otherwise actionable harms.

6. By the same token, it is incompatible with liberty for the state to judge, punish, or attempt to influence private, voluntary acts of commission which have undesirable but avoidable consequences. For example:

  • Government prohibition of smoking on private property is anti-libertarian because non-smokers could choose not to frequent or work at establishments that allow smoking.
  • Other government restrictions on the use of private property (e.g., laws that bar restrictive covenants or mandate “equal accommodation”) are anti-libertarain because they (1) diminish property rights and (2) discourage ameliorating activities (e.g., the evolution away from cultural behaviors that play into racial prejudice, investments in black communities and black-run “accommodations”).
  • Tax-funded subsidies for retirement and health care are anti-libertarian because they discourage hard work, saving, and other prudent habits — habits that would lead to less dependence on government, were those habits encouraged.

7. The proper role of the state is to enforce the preceding principles. In particular,

a. to remain neutral with respect to evolved social norms, except where those norms deny voice or exit, as with the systematic disenfranchisement or enslavement of particular classes of persons;

b. to foster economic freedom (and therefore social freedom) by ensuring open trade within the nation and (to the extent compatible with national security) open trade with (but selective immigration from) other nations;

c. to ensure free expression of thought, except where such expression is tantamount to an actionable harm (as outlined above);

d. to see that the laws which protect liberty are enforced swiftly and surely, with favoritism toward no person or class of persons; and

e. to defend liberty against its enemies, foreign and domestic.

Selected bibliography of relevant posts (with links to other relevant posts therein):
The Erosion of the Constitutional Contract (03/23/04)
Why Outsourcing Is Good: A Simple Lesson . . . (03/31/04)
Fear of the Free Market: Part I, Part II, and Part III (04/08/04, 04/11/04, and 04/16/04)
Trade Deficit Hysteria (05/14/04)
Getting It Wrong: Civil Libertarians and the War on Terror (A Case Study) (05/18/04)
Social Injustice (05/23/04)
The Cost of Affirmative Action (06/01/04)
Who Decides Who’s Deserving? (08/13/04)
Refuting Rousseau and His Progeny (08/14/04)
The Rationality Fallacy (08/16/04)
The Main Causes of Prosperity (08/21/04)
It Can Happen Here: Eugenics, Abortion, Euthanasia, and Mental Screening (09/11/04)
Why Class Warfare Is Bad for Everyone (09/21/04)
Is There Such a Thing as Legal Discrimination? (09/23/04)
More on the Legality of Discrimination (09/24/04)
Race and Acceptance (09/27/04)
Does Capital Punishment Deter Homicide? (10/04/04)
Libertarian Twaddle about the Death Penalty (10/13/04)
Debunking More Myths of Income Inequality (10/13/04)
Free-Market Healthcare (10/15/04)
Social Security Is Unconstitutional (10/31/04)
Social Security — Myth and Reality (11/20/04)
Peter Singer’s Fallacy (11/26/04)
A Crime Is a Crime (11/26/04)
The Origin and Essence of Rights (01/01/05)
Notes on the State of Liberty in American Law (01/01/05)
Liberty and Its Prerequisites (01/01/05)
The Economic Consequences of Liberty (01/01/05)
The Destruction of Income and Wealth by the State (01/01/05)
The Broken Promise of Liberty (01/01/05)
Redeeming the Promise of Liberty (01/01/05)
Affirmative Action: Two Views from the Academy (01/19/05)
A Century of Progress? (01/30/05)
Socialist Calculation and the Turing Test (02/12/05)
Free Speech and Limited Government (02/15/05)
Feminist Balderdash (02/19/05)
Judeo-Christian Values and Liberty (02/20/05)
Social Security: The Permanent Solution (02/21/05)
The Social Welfare Function (03/17/05)
Killing Free Speech in Order to Save It (03/23/05)
Yet Another Look at Democracy (03/30/05)
A Mathematician’s Insight (04/03/05)
Libertarianism, Marriage, and the True Meaning of Family Values (04/06/05)
Rich Voter, Poor Voter, and Academic Liberalism (04/13/05)
Conservatism, Libertarianism, and Public Morality (04/25/05)
Illusory Progress (05/15/05)
A Contrarian View of Segregation (05/18/05)
I Dare Call It Treason (05/31/05)
Raich and the Rule of Law (06/07/05)
Free Markets, Free People, and Utter Disgust with Government (06/24/05)
An Agenda for the Supreme Court (06/29/05)
The Old Eugenics in a New Guise (07/14/05)
Saving the Innocent? (07/23/05)
But Wouldn’t Warlords Take Over? (07/24/05)
Conservatism, Libertarianism, Socialism, and Democracy (08/05/05)
Three More Cheers for the Great Political Divide (08/12/05)
Schelling and Segregation (08/15/05)
Treasonous Speech? (08/18/05)
Foxhole Rats, Redux (08/22/05)
After the Bell Curve (08/27/05)
A Footnote . . . (08/30/05)
Science, Evolution, Religion, and Liberty (08/31/05)
Katrina’s Aftermath: Who’s to Blame? (09/01/05)
“The Private Sector Isn’t Perfect” (09/02/05)
Common Ground for Conservatives and Libertarians? (09/04/05)
A Modest Proposal for Disaster Preparedness (09/07/05)
The Supreme Court: Our Last, Best Hope for a Semblance of Liberty (09/22/05)
Liberals and the Rule of Law (09/26/05)
The Legality of Teaching Intelligent Design (09/26/05) and Part II (09/28/05)
Thoughts That Liberals Should Be Thinking (09/27/05) and More Thoughts . . . (10/09/05)
Consider the Children (10/07/05)
Liberty or Self-Indulgence? (10/10/05)
Same-Sex Marriage (10/20/05)
A Useful Precedent (10/22/05)
Consider the Children (10/27/05)
“Equal Protection” and Homosexual Marriage (10/30/05)
Law, Liberty, and Abortion (10/31/05)
Equal Time: The Sequel (11/05/05) and addendum
Understanding Outsourcing (11/07/05)
Science, Logic, and God (11/08/05)
Joe Stiglitz Ig-Nobelist (11/11/05)
Abortion and the Slippery Slope (11/20/05)
Taxes, Charitable Giving, and Republicanism (11/24/05)
Libertarianism and Preemptive War: Part II (11/27/05)
Liberty of Contract, Substantive Due Process, and States’ Police Power (11/28/05)
Privacy, Autonomy, and Responsibility (11/29/05)
A Simple Fallacy (12/01/05)
Ten Commandments of Economics (12/02/05)
Torture and Morality (12/04/05)
More Commandments of Economics (12/06/05)
Peter Singer’s Agenda (12/15/05)
The Media’s Measurable Bias (12/19/05)
Anarchy: An Empty Concept (12/20/05)
Productivity Growth and Tax Cuts (12/29/05)
Capitalism, Liberty, and Christianity (01/01/06)
More Punishment Means Less Crime (01/03/06)
More about Crime and Punishment (01/06/06)
A Dissonant Vision (01/09/06)
Privacy: Variations on the Theme of Liberty (01/11/06)
Debunking “Scientific Objectivity” (01/16/06)
More about Crime and Punishment: A Footnote (01/17/06)
The Fatal Naïveté of Anarcho-Libertarianism (01/28/06)
Recommended Reading about NSA’s Surveillance Program (02/05/06)
Liberty, General Welfare, and the State (02/06/06)
Legalism vs. Liberty (02/07/06)
Time on the Cross, Re-Revisited (02/09/06)
Riots, Culture, and the Final Showdown (02/15/06)
Government’s Role in Social Decline (02/16/06)
A Rant about Torture (02/16/06)
More Final(?) Words about Preemption and the Constitution (02/17/06)
Anarcho-Authoritarianism (02/18/06)
Apropos Academic Freedom and Western Values (02/23/06)
Monopoly and the General Welfare (02/25/06)
Sunstein and Executive Power (02/26/06)
Anti-Western Values in the West (02/28/06)
On Income Inequality (03/09/06)
The Adolescent Rebellion Syndrome (03/10/06)
Calling a Nazi a Nazi (03/12/06)
Trade, Government Spending, and Economic Growth (03/17/06)
The Meaning of Liberty (03/25/06)
Thomas Woods and War (03/31/06)
An Immigration Roundup (04/04/06, with links to later posts on the subject)
Two Heroes and a Blackguard (04/06/06)
The Causes of Economic Growth (04/08/06)
Charles Murray’s Grand Plan (04/10/06)
Slippery Paternalists (04/13/06)
Let the Punishment Fit the Crime (04/14/06)
Courtly Doings (see the second item, on nullification by State courts, 04/20/06)
E Pluribus Unum? (04/23/06)
Moussaoui and “White Guilt” (05/03/06)
There’s More to Income Than Money (05/03/06)
Science, Axioms, and Economics (05/06/06)
Nock Reconsidered (05/08/06)
The Harm Principle (05/11/06)
Footnotes to “The Harm Principle” (05/16/06)
Republicanism, Economic Freedom, and Charitable Giving (05/19/06)
The Harm Principle, Again (05/20/06)
Don’t Tar My Nationalism with the Racism Brush (05/22/06)
The Indivisibility of Economic and Other Freedoms (05/23/06)
Rights and “Cosmic Justice” (05/29/06)
A Flawed Defense of Anarcho-Capitalism (06/02/06)
Mises on Liberty and the State (06/23/06)
Varieties of Libertarianism (07/01/06)
Liberty, Human Nature, and the State (07/08/06)