San Diego Law Review

Library of Congress Authority File


Document Type

Legal Moralism


Ribeiro’s article is broadly sympathetic to Mill’s harm principle. However, it argues that there is no one conclusive argument in its favor. Rather, there are a plurality of different arguments that all lend strength to Mill’s general conclusion, at least in particular categories of cases. The Article begins by noting that the harm principle is not limited to criminalization. In various ways short of criminalization, the law seems to prefer some ways of life over others on what seem to be paternalistic or moralistic grounds rather than any kind of obvious harm the actors are doing to other people. We don’t ban cigarettes, but we do tax them. We don’t punish atheists, but it is religions that get a tax deduction. We don’t ban pornography, but we affirmatively subsidize the arts and not pornography. Some states don’t ban surrogacy arrangements, but they won’t enforce surrogacy contracts either.