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31 Oxford J. Legal Stud. 1 (2011)
Distributive Justice and the Sovereignty Principle

handle is hein.journals/oxfjls31 and id is 3 raw text is: Oxford Journal of Legal Studies, Vol. 31, No. 1 (2011), pp. 1-21 doi: 10.1093/ojls/gqqO32 Published Advance Access December 1, 2010 Distributive Justice and the Sovereignty Principle WILLIAM E. O'BRIAN JR* Abstract-This article explores the implications of the Harm Principle, modified to accommodate recent criticisms by Arthur Ripstein, for theories of distributive justice. It concludes that the resulting Sovereignty Principle leads to a left- libertarian theory of justice that is based not on egalitarianism but rather on considerations internal to the Principle itself. This theory avoids criticisms of incoherence that have been rightly applied to other recent versions of left- libertarianism, and supports a requirement of substantial redistribution without necessarily precluding further redistribution for reasons other than those of justice. Keywords: distributive justice, harm principle, sovereignty principle, left- libertarianism, single tax 1. Introduction In this article, I argue for a theory of distributive justice that is based on a variant of John Stuart Mill's well-known Harm Principle. Under the Harm Principle, the state may not limit one person's freedom except to prevent or remedy harm to others. However, the variant that I discuss is modified substantially along the lines urged by Arthur Ripstein in a recent article (and book), and thus is significantly different from Mill's principle. To avoid confusion, I shall therefore adopt Ripstein's term and refer to it as the Sovereignty Principle. A special emendation of this rule is what I shall refer to as the 'Reciprocal Sovereignty Principle', pursuant to which people are permitted to harm each other if those harms are reciprocal and the practice of allowing such harming is mutually beneficial. The Harm Principle is most often discussed in the context of the moral limits of the criminal law, as that is the context of Joel Feinberg's four-volume treatise' on it. However, as originally formulated by Mill, it states that 'the sole * School of Law, University of Warwick. Email: w.obrian@warwick.ac.uk. The author wishes to thank Hillel Steiner, Karl Widerquist, Matthew Clayton, Victor Tadros, Ed Page, Danny Priel, Octavio Ferraz and anonymous referees for this and other journals for helpful comments on previous drafts. The usual disclaimers apply. J j Feinberg, The Moral Limits of the Criminal Law, 4 vols (OUP, Oxford 1984-90). 0 The Author 2010. Published by Oxford University Press. All rights reserved. For permissions, please e-mail: journals.permissions@oup.com

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