The Principle of Autonomy It is morally wrong to stop autonomous individuals from making their own decisions.

HANDOUT 9: STATE PATERNALISM 1: THE PRINCIPLES OF AUTONOMY AND BENEFICENCE The Intervention episode featuring an alcoholic named Bret provided a paradigmatic example of how the following two ethical principles can conflict: the principle of autonomy and the principle of beneficence. The Principle of Autonomy It is morally wrong to stop autonomous individuals from making their own decisions. The Principle of Beneficence There is an ethical duty to do as much good as we can (the principle of active beneficence) and as little harm as possible (the principle of non-maleficence). We can see this by considering the following questions. Q1: Based on Bret s behavior before and during the intervention, do you think that Bret is fully rational? Do you think his behavior was consistent with his true desires? Q2: Think about the tactics used by the family and interventionist. Were they concerned with respecting Bret s autonomy (i.e. his ability to make his own choice)? If not what was their primary concern? Q3: In the end, to what extent did Bret make a free choice to go to treatment? Do you think it matters whether Bret made a free choice or not? 2: THE HARM PRINCIPLE AND NON-INTERFERENCE PRINCIPLE In this unit, we will look at two major ways in which the principles of autonomy and beneficence can conflict in cases that are relevant to bioethics. Cases where the government, or state, restricts the freedom of its citizens in order to serve the goals of public health and well-being. Cases where the doctors restrict the freedom of their patients in order to promote the patient s health. We will begin with state paternalism by discussing Gerald Dworkin s famous article entitled Paternalism. At the beginning of his article Dworkin discusses a famous introductory passage from a book by John Stuart Mill entitled On Liberty (1859). [T]he sole end for which mankind are warranted, individually or collectively, in interfering with the liberty or action of any of their number, is self-protection. That the only purpose for which power can be rightfully exercised over any member of a civilized community, against his will, is to prevent harm to others. He cannot rightfully be compelled to do or forbear because it will be better for him to do so, 1

because it will make him happier, because, in the opinion of others, to do so would be wise, or even right. 1 Here Mill makes two claims about the conditions under which it is acceptable for the government to intervene in the lives of its citizens. One of these claims is commonly called the harm principle while the other is commonly termed the non-interference principle. The Harm Principle The only reason that the government can have for legitimately restricting the freedom of its citizens is to prevent them from harming others. The Non-Interference Principle The government is never justified in interfering with the freedom of its citizens because it would be to that own citizen s benefit. It is easy to think of laws that are based upon the harm principle. The government restricts my freedom to murder and steal from others based upon the harm principle and Dworkin points out that no one with the possible exception of extreme pacifists or anarchists questions the first half of the principle (Dworkin, 64). 2 The non-interference principle, however, is much more controversial. This is the principle that Dworkin discusses in this article. 3: WHAT IS PATERNALISM? Those who reject the non-interference principle think that there are at least some instances where state paternalism is justified. Dworkin defines paternalism in the following way. Paternalism The interference with a person s liberty of action justified by reasons referring exclusively to the welfare, good, happiness, needs, interests or values of the person being coerced (Dworkin, 65). Essentially, paternalism occurs whenever someone s freedom is limited for their own good. There are a couple of clarifications that need to be made about this definition. 3.1 EXAMPLES OF PATERNALISTIC LAWS The following are some examples of paternalistic laws that Dworkin identifies (Dworkin 65-66). Laws requiring motorcyclists to wear safety helmets when operating their vehicles. Laws forbidding persons from swimming at a public beach when lifeguards are not on duty. Laws regulating certain kinds of sexual conduct, e.g. homosexuality among consenting adults in private. 1 John Stuart Mill, On Liberty, in Mill: The Spirit of the Age, On Liberty, The Subjection of Women, ed. Alan Ryan (New York: W. W. Norton & Company, 1997), 48. 2 This handout is based upon Gerald Dworkin, Paternalism, The Monist 56:1 (1972): 64-84. Citations will be made intext in the following format: (Dworkin, ##). 2

Laws regulating the use of certain drugs which may have harmful consequences to the user but do not lead to anti-social conduct. Laws requiring a license to engage in certain professions with those not receiving a license subject to fine or jail sentence if they do engage in the practice. Laws compelling people to spend a specified fraction of their income on the purchase of retirement annuities. (Social Security) Laws forbidding various forms of gambling (often justified on the grounds that the poor are more likely to throw away their money on such activities than the rich who can afford to). Dworkin also mentions the possibility, which is now an actuality, of a law requiring that people wear safety-belts in automobiles (Dworkin, 67). 3.2 PATERNALISTIC AND NON-PATERNALISTIC REASONS It is important to see that the same law can in some circumstances be paternalistic and in other cases not be paternalistic depending on the reason it was put into place (Dworkin, 65). Consider the following two examples. Laws prohibiting the sale and consumption of heroin. o This law could be justified by the fact that heroin users are more likely to harm other people. This would not be a paternalistic justification (this justification relies upon the Harm Principle). o This law could be justified by the fact that heroin does great harm to those who use it. This would be a paternalistic justification insofar as it is intended to protect the potential drug user from him or herself. Laws prohibiting the sale and consumption of pornography. o This law could be justified based upon the argument that pornography can make those who view it more likely to commit sexual assault. This would not be a paternalistic justification (this justification relies upon the Harm Principle). o This law could be justified based upon the argument that it harms the moral character of the person consuming it that it makes the user a worse person. This would be a paternalistic justification insofar as it is intended to protect the potential drug user from him or herself. Our concern will be strictly with the paternalistic justification of laws. 3.3 PURE AND IMPURE PATERNALISM Dworkin also makes a distinction between pure and impure paternalism. Pure Paternalism A paternalistic law in which the person (or persons) being coerced is also the person (or persons) who the law is trying to benefit. Impure Paternalism A paternalistic law in which the person (or persons) being coerced is not the same person (or persons) who the law is trying to benefit. 3

Most of the examples of paternalistic laws fall in the first category. For instance, a law which prohibits the use of dangerous drugs limits the autonomy of the same person the law is trying to benefit (namely, the person who would use the drugs). However, not all paternalistic laws are like this. Thus, in the case of professional licensing it is the practitioner who is directly interfered with and it is the would-be patient whose interests are presumably being served. (Dworkin, 67). When we require certain professions (such as dentists, doctors, psychologists, and lawyers) to be licensed before they can practice we are restricting the freedom of the professionals. However, the person being protected are their clients we are protecting people from seeing, for instance, a doctor who is not well qualified. This is an instance of impure paternalism. 3.4 RECOGNIZED AND UNRECOGNIZED VALUES Dworkin notes that paternalism is often characterized as an action which overrides someone s own considered value judgments. Paternalism might be thought of as the use of coercion to achieve a good which is not recognized as such by all concerned (Dworkin, 69). Consider a law requiring motorcyclists to wear helmets. Someone might object to this law by stating that they genuinely value the feeling of the wind in their hair, and the freedom of being unconstrained by a helmet, over their own health and safety. However, Dworkin points out that the matter is not always quite like that (Dworkin, 70). For example, when we force motorcyclists to wear helmets we are trying to promote a good the protection of the person from injury which is surely recognized by most of the individuals concerned. It is not that a cyclist doesn t value his own bodily integrity; rather, as a supporter of such legislation would put it, he either places, perhaps irrationally, another value or good (freedom from wearing a helmet) above that of physical well-being or, perhaps, while recognizing the danger in the abstract, he either does not fully appreciate it or he underestimates the likelihood of its occurring (Dworkin, 70). In many cases, paternalistic laws simply force people to make a choice they already agree is best and would make themselves if they were thinking clearly. As we will see, this idea is crucial for Dworkin s argument that some paternalistic measures are justified. 4

4: MILL S TWO ARGUMENTS AGAINST PATERNALISM Mill defended the position in On Liberty that state paternalism is never justified by offering two different kinds of arguments. 4.1 MILL S UTILITARIAN ARGUMENT The first argument Mill provides against paternalism is Utilitarian in nature. He argues that paternalistic interference tends to cause more harm than good. But neither one person, nor any number of persons, is warranted in saying to another human creature of ripe years, that he shall not do with his life for his own benefit what he chooses to do with it. He is the person most interested in his own well-being: the interest which any other person, except in cases of strong personal attachment, can have in it, is trifling, compared with that which he himself has [ ] the most ordinary man or woman has means of knowledge immeasurably surpassing those that can be possessed by anyone else. The interference of society to overrule his judgment and purposes in what only regards himself must be grounded on general presumptions; which [ ] are as likely as not to be misapplied to individual cases, by persons no better acquainted with the circumstances of such cases than those are who look at them merely from without. 3 Mill makes two points in this passage. (i) The individual cares more about his or her well-being than the government does. Therefore, the individual is more likely than the government to do what is in their own interest. (ii) The government must rely upon general policies of what is best for individuals when acting paternalistically. However, because each individual s circumstances are different these general policies are likely to be misapplied. The individual is better acquainted with the particularities of his or her situation and, therefore, is in a better position than the government to decide how to live his or her life. These claims may be true (we will discuss the second one further in the next lesson), but Dworkin points out that where Mill goes wrong is by trying to derive an absolute prohibition against paternalism from these considerations. To show this [that intervening in an individual s choices always causes more harm than good] is impossible; one reason being that it isn t true. Preventing a man from selling himself into slavery (a paternalistic measure which Mill himself accepts as legitimate), or from taking heroin, or from driving a car without wearing seat-belts may constitute a lesser evil than allowing him to do any of these things. A consistent Utilitarian can only argue against paternalism on the grounds that it (as a matter of fact) does not maximize the good. It is always a contingent question that may be refuted by the evidence (Dworkin, 74). 3 Mill, On Liberty, 100. 5

Even if it is true in general that individuals are better positioned to make decisions about their life, it is undeniable that individuals still make bad choices (fail to wear seat belts, smoke, etc.). Thus, a consistent Utilitarian should argue that paternalism is justified in certain cases because it seems that there are cases where paternalism will bring out the greatest good. 4.2 MILL S AUTONOMY BASED ARGUMENT The previous argument is contingent in the sense that it whether or not it is sound depends upon how the evidence turns out. Whether or not limiting an individual citizens freedom produces more harm than good depends on the situation. However, Dworkin notes that there is also another type of argument in On Liberty. But there is also a non-contingent argument which runs through On Liberty. When Mill states that there is a part of the life of every person who has come to years of discretion, within which the individuality of that person ought to reign uncontrolled either by any other person or by the public collectively he is saying something about what it means to be a person, an autonomous agent. It is because coercing a person for his own good denies this status as an independent entity that Mill objects to it so strongly and in such absolute terms. To be able to choose is a good that is independent of the wisdom of what is chosen. A man s mode of laying out his existence is the best, not because it is the best in itself, but because it is his own mode. (Dworkin, 74-75) Mill s point here is that a person s ability to make his or her own choice is valuable regardless of the consequences, even if it seems that choice is a bad one. In this respect, Mill s point here actually resembles the idea, found in Kantian ethics, that we must respect the autonomy of persons. Rachels explains this connection in the following way. Treating people as ends, and respecting their rational capacities, has other implications. We should not force adults to do things against their will; instead, we should let them make their own decisions. We should therefore be wary of laws that aim to protect people from themselves for example, laws requiring people to wear seat belts or motorcycle helmets. 4 Some have criticized Mill for contradicting his utilitarianism which holds that what is important is the consequences of our actions and that the only thing with intrinsic value is pleasure (which implies that autonomy does not have intrinsic value). However, our concern will just be with the argument itself and not with whether it is consistent with the Mill s utilitarianism. 4.3 MILL ON CONTRACTUAL SLAVERY What Dworkin finds interesting about Mill s autonomy-based argument is that Mill makes one notable exception to it. 4 James and Stuart Rachels. Kant and Respect for Persons. In The Elements of Moral Philosophy. 8 th edition. New York: McGraw-Hill, 2015. 140. 6

In this and most civilised countries, for example, an engagement by which a person should sell himself, or allow himself to be sold, as a slave, would be null and void [ ] The reason for not interfering, unless for the sake of others, with a person s voluntary acts, is consideration for his liberty [ ] But by selling himself for a slave, he abdicates his liberty; he foregoes any future use of it beyond that single act. He therefore defeats, in his own case, the very purpose which is the justification of allowing him to dispose of himself [ ] The principle of freedom cannot require that he should be free not to be free. It is not freedom to be allowed to alienate his freedom. 5 Mill argues that one case where the government should be allowed to interfere in an individual s decisions is if that individual wanted to voluntarily contract themselves into slavery. The reason for this is that, by doing so, one would permanently forfeit his or her autonomy. The purpose of government non-interference is to protect individual freedom, but where one wants to use his or her freedom to give up their freedom, the government interference is actually required to protect individual freedom. From this idea, Dworkin believes we can derive the following principle. This gives us a principle a very narrow one by which to justify some paternalistic interferences. Paternalism is justified only to preserve a wider range of freedom for the individual in question (Dworkin, 76). Dworkin believes that this principle is capable of justifying paternalism in a wider range of cases than just contractual slavery. 5: PROTECTING AUTONOMY THROUGH PATERNALISTIC INTERFERENCE 5.1 PARENTAL PATERNALISM Dworkin suggests that we begin by looking at other cases where paternalism is commonly seen as justified. Even Mill intends his principles to be applicable only to mature individuals, not those in what he calls non-age. What is it that justifies us in interfering with children? The fact that they lack some of the emotional and cognitive capacities required in order to make fully rational decisions [ ] For example it is very difficult for a child to defer gratification for any considerable period of time. Given these deficiencies and given the very real and permanent dangers that may befall the child it becomes not only permissible but even a duty of the parent to restrict the child s freedom in various ways (Dworkin, 76). The least controversial sort of paternalism is the power that parents exercise over their children or parental paternalism. For Parents have not only the right, but the duty, to take away some of their child s freedoms the child s benefit (forcing a child to eat vegetables, forcing a child to go to school, etc.). Such actions are often thought of as a wager by the parent on the child s subsequent recognition of the wisdom of the restrictions (Dworkin, 76-77). Although the child may not 5 Mill, On Liberty, 121. 7

consent to being made to go to school now, later on she should be able to see that it was for the best. 5.2 CONSENTING TO PATERNALISM However, it is not clear that this kind of reason could also be used to justify paternalistic laws which apply to adults. There are two crucial differences between the parent-child relationship and the government-citizen relationship (at least if we accept Mill s conception of the role of government). The government is not generally seen as responsible for the well-being of its citizens to the same extent that a parent is for the well-being of a child. Adult citizens in a political community are generally seen as autonomous individuals who consent to be ruled. It doesn t matter that a child doesn t consent to paternalistic measures, but it does matter (it is often thought) that adults provide their consent before someone can interfere with their freedom. What Dworkin needs is some way of explaining how adult citizens can be said to consent to paternalistic measures even if there is no explicit consent. To make this point he first considers a case where there is explicit consent to paternalism. What he has in mind are cases where it is rational for an individual to agree that others should force him to act in ways which, at the time of action, the individual may not see as desirable (Dworkin, 77). He provides the following example. If, for example, a man knows that he is subject to breaking his resolves when temptation is present, he may ask a friend to refuse to entertain his requests at some later stage. A classical example is given in the Odyssey when Odysseus commands his men to tie him to the mast and refuse all future orders to be set free, because he knows the power of the Sirens to enchant men with their songs. Here we are on relatively sound ground in later refusing Odysseus' request to be set free. He may even claim to have changed his mind but, since it is just such changes that he wished to guard against, we are entitled to ignore them (Dworkin, 77). In this case, Odysseus recognizes that his decision making abilities are going to be compromised in the near future and, thus, gives other permission to limit his autonomy. Dworkin also points to the example of a community that recognizes the need for a certain tax but then, later when it is actually time to pay it, no longer wants to. In this case we might consent to coercive measures that will force us to pay the tax in the future when we no longer want to part with our money (Dworkin, 77). 5.3 PATERNALISM AS A SOCIAL INSURANCE POLICY The above cases are instances of explicit consent to some particular paternalistic measure. However, in all the examples we have discussed, this is not how the laws came about. We are simply born into a system of government which we never actually agreed to participate in. Rather, consent to paternalistic laws would, according to Dworkin, involve the following. What must be involved here is not consent to specific measures but rather consent to a system of government, run by elected representatives, with an understanding that they may act to safeguard our interests in certain limited ways (Dworkin, 78). 8

The question is: would it make sense to consent to live under a government with the power to protect us from ourselves in certain instances? Dworkin believes that the answer to this question is yes, based upon the following reasoning. I suggest that since we are all aware of our irrational propensities, deficiencies in cognitive and emotional capacities, and avoidable and unavoidable ignorance, it is rational and prudent for us to in effect take out social insurance policies (Dworkin, 78). We should all recognize that, at various times throughout our lives, our cognitive capacities can be diminished (we temporarily act like children). There are situations in which all of us have a difficult time with the following: properly assessing risk putting off present pleasure for greater future rewards resisting temptation and addiction. Because of this, Dworkin believes that rational individuals would have good reason to consent to live under a government with the authority to put in place policies that will protect us when our decision-making abilities are diminished. State paternalism is a social insurance policy against our own deficiencies. 6: THREE EXAMPLES OF JUSTIFIED PATERNALISM At this point, all Dworkin has established is that the state has the power to put into place paternalistic measures that will preserve a wider range of freedom than we would have otherwise by protecting us against our own cognitive deficiencies. By itself, such an arrangement is rather vague. Now clearly, since the initial agreement is not about specific measures we are dealing with a more-or-less blank check and therefore there have to be carefully defined limits. What I am looking for are certain kinds of conditions which make it plausible to suppose that rational men could reach agreement to limit their liberty even when other men s interest are not affected (Dworkin, 77). Dworkin provides three examples of types of cases where he believes the government would be justified in wielding its paternalistic power. First, there are decisions which make it impossible for the person who made the decision to return to his or her original state. Some of the decisions we make are of such a character that they produce changes which are in one or another way irreversible. Situations are created in which it is difficult or impossible to return to anything like the initial state at which the decision was made. In particular, some of these changes will make it impossible to continue to make reasoned choices in the future. I am thinking specifically of decisions which 9

involve taking drugs that are physically or psychologically addictive and those which are destructive of one s mental and physical capacities (Dworkin, 80). The decision to use highly addictive drugs, such as heroin and cocaine, can permanently compromise one s autonomy such that one can no longer make rational, autonomous decisions. Second, there are decisions which are made under extreme psychological or sociological pressure. For instance, Dworkin points to the decision to commit suicide which is usually made at a point where the individual is not thinking clearly and calmly about the nature of his decision (Dworkin, 81). Dworkin does not advocate for a ban on suicide. However, he does think we would have good reason to consent to an arrangement where the government can force us to think carefully about that decision. Since we are all aware of the possibility of temporary states, such as great fear or depression, that are inimical to the making of well-informed and rational decisions, it would be prudent for all of us if there were some kind of institutional arrangement whereby we were restrained from making a decision which is so irreversible [ ] But we might have a cooling off period, in much the same way that we now require couples who file for divorce to go through a waiting period. Or, more far-fetched, we might imagine a Suicide Board composed of a psychologist and another member picked up by applicant. The Board would be required to meet and talk with the person proposing to take his life, though its approval would not be required (Dworkin, 81-82). Third, there are situations where one either does not know all the facts or does not fully appreciate the facts. Dworkin points to the example of cigarette use (Dworkin, 82). 1. A man may not know the fact--for example, smoking between one and two packs a day shortens life expectancy 6.2 years, the costs and pain of the illness caused by smoking, et cetera. 2. A man may know the facts, wish to stop smoking, but not have the requisite willpower. 3. A man may know the facts but not have them play the correct role in his calculation because, say, he discounts the danger psychologically since it is remote in time and/or inflates the attractiveness of other consequences of his decision which he regards as beneficial. In order to account for these deficiencies, the government is justified in taking action such as requiring warning labels on cigarette packages and/or putting a heavy tax on cigarettes. 10