The Principles of Actionable Harm

I prefer — as a minarchistic libertarian (a radical-right-minarchist, to be precise) — an accountable, constrained state to the the condition of anarchy. This leads to warlordism and thence to despotism. But the state must be held to its proper realm of action, namely, dispensing justice and defending citizens. Its purpose in doing those things — and the sole justification for its being — is to protect negative rights (including property rights) and civil society. (For more about the proper role of the state, go to “Parsing Political Philosophy” and under the section headed “Minarchism,” see “The Protection of Negative Rights,” “More about Property Rights,” and the “Role of Civil Society.”)

Specifically:

1. An actionable harm — a harm against which the state may properly act — is one that deprives a person of negative rights or undermines the voluntarily evolved institutions and norms of civil society.

2. The state should not act — or encourage action by private entities — except as it seeks to deter, prevent, or remedy an actionable harm to its citizens.

3. An actionable harm may be immediate (as in the case of murder) or credibly threatened (as in the case of a conspiracy to commit murder). But actionable harms extend beyond those that are immediate or credibly threatened. They 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. The use of state power has 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; for example:

Affirmative action and other forms of forced racial integration deny property rights and freedom of association, prolong racial animosity, and impose unwarranted economic harm on those who are guilty of nothing but the paleness of their skin.

Abortion suborns infanticide and invites euthanasia of the infirm and elderly.

The legal enshrinement of gay rights leads to the suppression of speech and the denial of freedoms of expression and association, at the expense of citizens who have done nothing worse than refuse to recognize a “lifestyle choice” of which they disapprove, as should be their right.

State recognition of gay marriage undermines heterosexual marriage — an essential civilizing institution.

Amnesties for illegal immigrants impose heavy economic costs on Americans and enlarge the constituency for big government.

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

a. is defamatory; or

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

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

d. purposely — through a lie or the withholding of pertinent facts — causes a person to act against self-interest; 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 the suppression or punishment of the harmful expressions; the remedy should be the enactment and enforcement of restrictions on the ability of government to act as it does.)

5. 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. And those persons who claim to be offended by the superior income or wealth of other persons would be entitled to recompense from those other persons. (It takes little imagination to see the ramifications of such thinking; rich heterosexuals, for example, could claim to be offended by the existence of persons who are poor or homosexual, and could demand their extermination as a remedy.)

6. It cannot be an actionable harm to commit 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 fiduciary responsibility. Nor can it be an actionable harm to commit a private, voluntary act which does nothing more than arouse resentment, envy, or anger in others. A legitimate state does not judge, punish, or attempt to influence private, voluntary acts that are not otherwise actionable harms.

7. By the same token, a legitimate state does not 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 illegitimate 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 public accommodation) are illegitimate 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 public accommodations).

Tax-funded subsidies for retirement and health care are illegitimate because they discourage hard work, saving, and other prudent habits — habits that would lead to less dependence on government, were those habits encouraged.

8. It is also wrong for the state to make and enforce distinctions among individuals that have the effect of advantaging some persons because of their age, gender, sexual orientation, skin color, ethnicity, religion, or economic status.

9. Except in the case of punishment for an actionable harm, it is an actionable harm to bar a competent adult from

a. expressing his views, as long as they are not defamatory or meant to incite harm (voice); or

b. moving to a place of his choosing (exit).

(As a practical matter, voice is of little consequence if the state’s power of the lives and livelihoods of citizens has grown so great that it cannot be undone except by revolution. Further, exit becomes meaningless when the central government’s power reaches into every corner of the nation and leaves persons of ordinary means with no place to turn. In the present circumstances, it follows that the state daily commits actionable harms against citizens of the United States.)

10. 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; and

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; and

c. to ensure free expression of thought, except where such expression is tantamount to an actionable harm (as in a conspiracy to commit murder or mount a campaign of harassment); and

d. to see that just laws — those enacted in accordance with the principles of actionable harm — are enforced swiftly and surely, with favoritism toward no person or class of persons; and

e. to defend citizens against predators, foreign and domestic.

* * *

The principles of actionable harm are not rules for making everyone happy. They are rules for ensuring that each of us is able to pursue happiness without impinging on the happiness of others.

The state should apply the principles of actionable harm only to citizens and legitimate residents of the United States. Sovereignty is otherwise meaningless; the United States exists for the protection of citizens and persons legitimately resident; it is not an eleemosynary institution.

By the same token, those who would harm citizens and legitimate residents of the United States must be treated summarily and harshly, as necessary.

* * *

Share this:

Related