Kadish Center for Morality, Law and Public Affairs

In On Liberty, just a few sentences after he introduces his famous "harm principle," John Stuart Mill writes "The only part of the conduct of anyone, for which he is answerable to society, is that which concerns others. In the part which merely concerns himself, his independence is, of right, absolute. Over himself, over his body and mind, the individual is sovereign." My aim is to argue that a commitment to individual sovereignty and a sphere of action in which you are answerable only to yourself requires that we abandon the harm principle.

The only way to unseat a time honoured principle is to provide a superior alternative. Following the sentence of Mill just quoted, I will call the alternative "the sovereignty principle." Liberalism is fundamentally a doctrine about the legitimate uses of state power, and the sovereignty principle articulates the basis for those limits in terms of ideas of individuality and independence. It provides a narrow rationale for the legitimate use of state power, and precludes other proposed bases. I explain why its conception of freedom is not subject to certain familiar objections, ones that have historically driven some to embrace the harm principle. Before doing so, I show that narrowly construed, the harm principle fails to account for a significant and familiar class of wrongs that most liberals would agree merit prohibition.

In the last generation, the American Supreme Court has constitutionalized an increasing number of issues concerning the structure of elections and the design of democratic governance institutions. Similar developments are emerging in the courts of other countries. This Foreword critiques the current premises and methodology that underlie this emerging new domain of constitutional law. The Foreword offers an alternative, functional foundation for judicial review of democratic politics in which the central task should be ensuring that political processes are appropriately competitive and in which conventional understandings of individual rights, associational rights, and political equality should play a diminished role. The Foreword then applies these ideas to several central, recent constitutional issues concerning the structure of democracy: the design of election districts, the issue of groups and political representation, the legal regulation of political parties, and the financing of elections.

Revelations of ill-treatment of prisoners by American forces at Abu Ghraib and the publication of memoranda showing that Bush administration lawyers have been seeking to narrow the application of the Convention against Torture and other similar provisions – these developments make it necessary for us to think afresh about the character and significance of the various legal prohibitions on torture. This paper argues that the prohibition on torture is not just one rule among others, but a legal archetype – a rule which is emblematic of our larger commitment to break the link between law and brutality. Characterizing the prohibition as a legal archetype affects how we think about the implications of authorizing torture (or interrogation methods that come close to torture); it affects how we think about issues of definition in regard to torture; and it affects how we think about the fragility and contingency of the provisions of positive law that stand between us and barbarism.