Some scholars contend that the context and nuances of 'harmful' and 'harmless' are too broad and must be properly defined. Still, questions remain with regards which acts the state should criminalise and acts which the state should consider private and harmless. This paper will maintain Mill's argument that acts which evidently harm others should be criminalised. It will further argue that consensual acts in which consent lacks validity should also fall under the scope of the law and the control of private and 'harmless' behaviours fall beyond the aforementioned categories and is none of the state's business. However, the criminalisation of these acts, as Mill had argued, should not be meant to unnecessarily augment the power of the state.
In his work 'On Liberty,' John Stuart Mill brought forth the most compelling clarification on the distinction between liberalism and paternalism. He argues that 'the only purpose for which power can be rightfully exercised' over citizens, against their volition 'is to prevent harm to others' adding that 'the individual is sovereign' over himself (Mill, 24 ). However, Mill's 'harm principle' has come under attacks - the most prominent of which was put forth by Arthur Ripstein. Ripstein argues that Mill's harm principle should be abandoned as he brings forward the notion of 'equal freedom,' an idea derivative of Kant's and which he believes afford the more 'legitimate basis for criminalisation' (Ripstein 216-219). For Ripstein, Mill's principles fell in short in scope as it failed to include considerable 'class' of 'violations' that do not necessitate criminalisation or prohibition. He adds that the harm principle failed to define fully the distinctive status that it gives to harm especially on when or why harm should be substantiated and when or why harm is germane to criminalisation and the formulation of a legislation. Ripstein cites harmless trespass as one example. For instance, a person intrudes into your property while you are out. The intruder does not make any damage whatsoever to your locks and door and takes a nap in your bed. The intruder takes extra precautionary measures such as wearing a hypoallergenic sleeping garb or not leaving any trace or anything that may inconvenience anyone. He does this and leaves and as a result has not harmed anyone. As the whole purpose of the harm principle, according to Ripstein, is to illustrate that negative behaviour and intentions must result to negative consequences in order for it to require prohibition. The act of intruding into someone's home and sleeping in his bed, as long as the intruder goes in and out without leaving a trace or creating discomfort, is harmless (220-246). Although Ripstein agrees that this action needs to be criminalised, this cannot be validated as a harmful wrong. Hence, the harm principle is categorical, does not provide exceptions to deeds that produce no harm and should be replaced by his sovereignty principle.
Baker, on the other hand believes that Ripstein's trespass is far from harmless. This intrusion is a threat to a person's security as well as sets back 'the interest' that the owner being intruded in maintaining his property which provides him a secure abode. The