The Harmfulness of Trespassing

In his article, “Beyond the Harm Principle,” Ripstein defends an alternative to J.S. Mill’s harm principle, which he names the sovereignty principle. Ripstein proposes a thought experiment to tear down our notion of the harm principle: harmless trespassing.

In this thought experiment, a man comes into your house while you are away, sleeps in your bed, and leaves the house — all without leaving a trace. He cleaned the sheets and did not hurt the mattress. He wore a hair net. There are no indicators that he was ever even there. Yet everyone thinks that such an action should be criminalized.

Ripstein thinks that this example undermines the harm principle, as the trespasser caused no harm. Therefore, if the harm principle is strictly followed, this trespassing incident cannot be criminalized. But that goes against everyone’s intuition, so it cannot be right.

While Ripstein’s thought experiment seems to attack the harm principle, it does not seem to reckon with the offense principle. The trespasser sleeping in your bed seems a lot like the disgusting bus stories that Feinberg proposed that make us so uncomfortable.

This makes it difficult for Ripstein to build the foundations of his sovereignty principle on this example. When I hear the story of the man sleeping in my bed, my first thought is not of my property rights and liberty, but of how nasty and offensive it is that someone else was in my bed and I had no idea.

That example actually hits kind of close to home for me this week, because someone broke into my house this weekend and stole some of my roomate’s things. While he did not steal any of my things, just the thought of someone walking around the house either while I was asleep or just before I got home is creepy. When explaining why that action was criminal, my first thought is not “because he trespassed on my property,” but “because he made me feel threatened.”

While Ripstein has a solid objection to an unmodified harm principle, his example of trespassing fails to establish his sovereignty principle as a favorable alternative.