Introduction
Most undergraduates are likely to become acquainted with John Stuart Mill's famous harm principle at some point. Here is how he stated the principle in On Liberty:
The object of this Essay is to assert one very simple principle, as entitled to govern absolutely the dealings of society with the individual in the way of compulsion and control, whether the means used be physical force in the form of legal penalties, or the moral coercion of public opinion. That principle is, that the sole end for which mankind are warranted, individually or collectively, in interfering with the liberty of action of any of their number, is self-protection. That the only purpose for which power can be rightfully exercised over any member of a civilized community, against his will, is to prevent harm to others. His own good, either physical or moral, is not sufficient warrant. He cannot rightfully be compelled to do or forbear because it will be better for him to do so, because it will make him happier, because, in the opinion of others, to do so would be wise, or even right... The only part of the conduct of anyone, for which he is amenable to society, is that which concerns others. In the part which merely concerns himself, his independence is, of right, absolute. Over himself, over his own body and mind, the individual is sovereign.
The harm principle is itself a fascinating topic (perhaps for another Lexicon entry), but on this occasion, we are using it to ask the question: what constitutes harm to others? Of course, we can all enumerated examples of harm. Alice kicks Ben in the shin and bruises him. Carla steals David's lunch. Edwina falsely accuses Frank of plagarism. But all of these examples assume that we can distinguish what the infliction of harm from something else--the denial of a privilege or advantage. Gertrude denies Harry a job. Ingrid decides not to invite Jim to her party. Karl refuses to share his collection of MP3 files with Laurie. Are these harms or not?
The problem of distinguishing harm from denial of advantage or rights from privileges involves one of the most interesting concepts in legal theory--the notion of a baseline. This entry in theLegal Theory Lexicon introduces to the baseline problem. As always, the Lexicon is aimed at law students, especially first-year students, with an interest in legal theory.
The Function of a Baseline
A variety of important legal concepts are relative in the following sense: an action, event, or state of affairs falls under the concept by comparison to some alternative. Mill's idea of "harm" has this property: an event is a "harming" only in comparison to some prior or alternative state of affairs. A similar point could be made about "injury," "advantage," "benefit," and similar terms.
There is where the notion of a baseline comes in. For example, we might use a temporal baseline to define harm: action X is a harm to individual P if and only if P is worse off after X and this change in welfare is causally produced by X. This sounds plausible, but it isn't difficult to cook up examples where this formula doesn't match our intuitive understanding of harm. Mary asks Nancy to repay a $10 loan, and Nancy agrees to do so. Nancy is worse off, but it isn't clear that Mary has harmed Nancy--even though her request for payment is the cause of Nancy's being worse off (financially) than she was before the request for repayment. A similar point could be made about advantage. Mary forgives Nancy’s debt. Nancy's financial circumstances aren't improved relative to a temporal baseline, but we might believe that Mary has conferred an advantage on Nancy. In both examples, the temporal baseline doesn't capture our intuitive sense that the relevant baseline ought to be defined in terms of Mary and Nancy's respective entitlements.
Possible Legal Baselines
So how could the law identify baselines? Let's just list a few possibilities:
Positive Entitlements: The law could take one's existing entitlements (as defined by the positive law) as the baseline for measuring legal harm or advantage.
Common law: Another option would be to take the common law system of property, contract, and tort law as the definition of baseline entitlements. Official actions that worsened an individual's position relative to the common-law baseline could be defined as harms, and actions that bettered the common-law baseline could be defined as advantages.
Natural rights: Yet another possibility would be the the baseline could be defined by a theory of natural rights. One such theory is offered by theories of the state of nature and the social contract. The baseline of natural rights could be identified with those rights that would be retained by rational individuals who agreed to enter into civil society from a state of nature.
Human rights: Another source of a baseline might be the bundle of entitlements identified by international human rights law.
At this point, I'm sure that Lexicon readers will have recognized that the identification of a baseline can be crucially important to answering the question whether an injury has occurred. If positive law identifies the baseline, then there are no injuries unless a legal entitlement is violated. But if natural right sets the baseline, then there can be injury without violation of the positive law.
Contexts in which Baselines Matter
Baselines are important in a variety of contexts. How do we distinguish offers from threats? Nozick's clever distinction is that a threat is an offer you would rather not receive, but underlying his point is the notion of a baseline.
Baselines have played an especially prominent role in constitutional theory. In that context, the baseline problem is strongly associated with Cass Sunstein, and especially with his analysis of the United States Supreme Court's decision in Lochner v. New York. As most readers of theLexicon will know, the Supreme Court invalidated a New York statute that regulated the number of hours that could be worked by bakers on the basis of the due process clause of the 14th Amendment of the United States Constitution. The statute was challenged on the basis that it deprived bakery owners of liberty. The question is what determines the baseline. Sustein argued that the Court had erroneously assumed that the common-law provides a natural baseline, when in fact the system of common-law rights is itself a product of positive law and hence subject to redefinition by legislative action. The following passage provides the flavor of Sunstein's argument:
The Lochner Court required government neutrality and was skeptical of government “intervention”; it defined both notions in terms of whether the state had threatened to alter the common law distribution of entitlements and wealth, which was taken to be a part of nature rather than a legal construct. Once the common law system came to be seen as a product of legal rules, the baseline from which constitutional decisions were made had to shift. When the Lochner framework was abandoned in West Coast Hotel, the common law system itself appeared to be a subsidy to employers. The West Coast Hotel Court thus adopted an alternative baseline and rejected Lochner era understandings of neutrality and action. (Sunstein, Lochner's Legacy, p. 917)
Of course, the system of common-law rights could be used as a baseline. Sunstein's point is that the common-law is not more "natural" than any other baseline derived from the positive law.
One can imagine a variety of replies to Sunstein's argument. One possibility is to argue that the common-law system of rights does have some special statues. For example, it might be argued that common-law property, contract, and tort rights instantiate a system of natural rights. Or it might be argued that the common law reflects deeply held and wide shared social norms that provide the content of a shared social sense of justice. Whether arguments like this will succeed on the merits is certainly contestable, but for your purpose the important point is that baselines must be justified--they cannot just be assumed.
Conclusion
Concepts like harm, injury, advantage, and benefit are pervasive in legal theory. Understanding these concepts requires an appreciation of the baseline problem. The pont of this Lexicon entry is to give the reader a basic understanding of what baselines are and how they can be challenged and defended. Of course, there is much more to be said, and the bibliograph provides some additional sources to investigate.
Bibliography
- Jack M. Beerman & Joseph William Singer, Baseline Questions in Legal Reasoning: The Example of Property in Jobs, 23 Ga. L. Rev. 911 (1989).
- David E. Bernstein, Lochner's Legacy's Legacy, 82 Tex. L. Rev. 1 (2003).
- Cass Sunstein, Lochner's Legacy, 87 Colum. L. Rev. 873 (1987).
- Cass Sunstein, After the Rights Revolution: Reconceiving the Regulatory State
(Harvard University Press 1990).
(This entry was last revised on January 13, 2013. My thanks to Kenneth Simons for his comments.)
by Thom Brooks. Here is a description:
and 
. It argues that Balkin’s theoretical contribution is substantial. His reconciliation of originalism and living constitutionalism is correct and should mark a real advance in constitutional theory and scholarship. Political considerations may, however, complicate its reception. Something like political considerations seem also to have complicated Balkin’s theory. He suggests that we may think of American constitutional history as an attempt to redeem the promises of the Declaration of Independence. I argue that the Reconstruction Amendments are a much more appropriate focus for redemption and speculate that Balkin chooses the Declaration instead because it has a universal appeal that the Reconstruction Amendments do not. But by making his theory consistent with our national mythology of a successful constitutional experiment — a mythology that slights the Civil War and Reconstriction — Balkin actually accedes to a political program he probably does not endorse.
