Paternalism

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1.  Introduction

A strange form of entertainment appeared among the French youth in the beginning of the 1990s. Local discotheques started to organize ‘dwarf tossing’ events, in which a dwarf, wearing suitable protective gear, would allow himself to be thrown short distances onto an air bed by the clients. French authorities soon prohibited these events, on the basis that the practice violated the principle of human dignity. In a series of appeals, the case was brought before the French Conseil d’Etat and the UN Human Rights Committee.¹ The applicant, Mr. Wackenheim, one of dwarf employees in question, claimed that banning him from his work had an adverse effect on his life and represented an affront to his dignity, since human dignity consists in having a job. Although his petition was rejected by both forums, Mr. Wackenheim’s reasoning is also understandable to a certain degree. The case raises an interesting question for legal theorists. What are the acceptable limits of state intervention to protect competent individuals from their own self-harming conduct? Put it more directly, what are the rules and limits of legal paternalism?

Beginning with the age of the Enlightenment, paternalism came increasingly to the forefront of philosophical attention. Ever since this period, the dilemma of regulating self-harming behaviour has occupied the mind of many moral and legal philosophers. For the past two centuries, the discourse has been dominated by the harm principle of John Stuart Mill. The principle, when stating 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”, provides a clear-cut rule in relation to paternalism: it plainly excludes paternalism from the sphere of legitimate state interventions.² Taking Mill seriously, paternalism would not be an overly interesting question, either from a legal or an ethical perspective, because the harm principle regulates the question in a comprehensive manner. How come then that paternalism still raises so many theoretical controversies and generates so much debate in public discourse?

Obviously, the harm principle is far from being an uncontested formula. It is an essentially liberal precept that has been subjected to numerous criticisms, ← 9 | 10 → mainly because its radical prohibition of paternalism seems untenable in modern societies. There are several cases when paternalism seems unobjectionable and for some people, even expressly necessary. In principle, it is possible to agree with Feinberg that “[…] the [main] problem is to reconcile somehow our general repugnance for paternalism with the apparent necessity, or at least reasonableness, of some paternalistic regulations”.³ There are a lot of different justificatory theories of paternalism, and one can rightfully ask which theory handles self-harming actions most ‘successfully’. The existence of these competing approaches partly explains the controversial character of paternalism, especially when considering that the debates over this question are heavily laden with moral and political presuppositions. These often preclude the possibility of rational discussion. However, there is a deeper problem that contributes to the controversial nature of paternalism, independent of political orientation or personal moral convictions. It seems to be related to any theory that strives to give a comprehensive rule for paternalism. Apparently, paternalism is such a complex and delicate issue that it is impossible to devise one overarching principle that could adequately ‘govern’ all of its dealings.

To demonstrate this complexity, consider some typical examples of paternalism. ‘Classical’ examples include regulations requiring motorcyclists to wear crash helmets or drivers to fasten their seat belts; prescribing safety equipment for construction workers; restricting the sale of alcoholic beverages or tobacco; establishing special rules for dangerous sports (e.g. high altitude mountaineering, white-water rafting, motor racing, etc.) or simply prohibiting potentially harmful activities (e.g. base jumping, the consumption of dangerous food).⁴ More fundamental issues involve the prohibition of euthanasia, the criminalization of drug use or the introduction of compulsory public education. Paternalism often comes up in a non-legal context. The doctor who lies to a terminally ill woman on her deathbed (telling her that her son is doing well, although he has just lost his life in a car accident) definitely acts paternalistically. Parents offering extra pocket money to their children for earning good grades in school also act in a paternalistic way. It seems that the real significance of the question becomes evident when paternalism affects fundamental life choices (e.g. euthanasia). ← 10 | 11 → As long as paternalism deals with merely instrumental problems (e.g. safety belts or crash-helmets), it might ‘feed’ interesting theoretical debates but it has much less practical relevance.

1.1  The relevance of the topic

Paternalism has been a favourite ‘playground’ of moral philosophers for the last forty years. It has generated an immense amount of literature and articles still keep popping up regularly until this day. Although Hart already touches on the issue of paternalism in Law, Liberty and Morality (1963), the beginning of the intense debate can be attributed to the publication of Joel Feinberg’s and Gerald Dworkin’s seminal papers in 1971 and 1972.⁵ An important stage in the theoretical development was the appearance of Feinberg’s comprehensive book on paternalism published as the third part of his four-volume magnum opus entitled The Moral Limits of the Criminal Law (1989). The theoretical discourse continues with changing intensity. New scientific trends put the topic in new perspectives. For example, the recent idea of libertarian paternalism, based on the findings of cognitive psychology and behavioural economics, focuses on the application of non-coercive forms of paternalism. Newly emerging ethical theories, such as the ethics of care, demand the re-examination of previous models of paternalism based on traditional ethical approaches.

The protection from self-harming behaviour is not only a persistent theoretical question but also a fact of life that emerges in new forms with the increasing complexity and pluralism of modern societies. Technological advancement also creates new moral dilemmas with paternalistic implications (e.g. euthanasia). Consequently, paternalism often becomes the ‘battlefield’ of conflicting worldviews and remains a highly relevant issue nowadays. Paternalism permeates private and public relations as well. In the latter case, the question arises to what extent a ‘paternalistic’ welfare state should provide help to its citizens. This seems particularly relevant in post-socialist Central and Eastern Europe where people often feel nostalgic about the ‘old times’ when the state used to take ‘better care’ of its citizens. ← 11 | 12 →

1.2  The method and scope of the research?

The approach of this book is predominantly theoretical. There is a huge variety of philosophical arguments and theories related to paternalism and one of the objectives here is to try and ‘clean up the conceptual mess’ that characterizes this field. The book’s method is ‘meta-theoretical’ to a certain extent, in the sense that it is a discourse on paternalistic discourses: it presents, evaluates and critically reflects on different justificatory theories of paternalism.

I primarily conceive paternalism as an ethical dilemma. Although it often becomes a legal issue in the form of paternalistic regulations and subsequent judicial decisions, there are questions of paternalism that never enter the field of law. Additionally, it seems that paternalistic state interventions are often backed up by ethical arguments. Paternalism at the level of constitutional adjudication can be conceived as the collision of certain fundamental rights and/or constitutional interests, typically with the right to privacy in focus. Despite the fact that there are established constitutional tests in the jurisprudence of high courts to resolve these collisions, it can be convincingly argued that the balancing procedure often reflects ethical arguments and the outcome of cases is determined by ethical considerations.

There are three possible methods to decide an ethical dilemma such as paternalism.⁶ (1) The top-down approach follows the traditional syllogism-model of applying pre-existing rules to specific situations.⁷ It works by subsuming a particular case under a general norm or abstract principle. This deductivist model seems to function well in ‘simple’ cases that can be brought directly and unambiguously under one specific moral principle. Unfortunately, most paternalistic cases are not so easy to decide because the abstract rules regulating paternalism are often indeterminate and there might be conflicting principles that require balancing as well. Let us take a simple autonomy-based rule for paternalism, for example that ‘paternalistic interventions are justified as long as they do not violate the autonomy of the paternalised person’. Two problems seem to render the top-down model inoperable here. The first one is related to the abstract character of the rule, most notably that it does not specify the exact meaning of the term ‘autonomy’. The second problem is that a ‘rival’ principle potentially applicable to paternalistic situations, namely the principle of benevolence might prescribe different actions than the principle of autonomy. (2) The bottom-up strategy of ← 12 | 13 → justification is an inductivist method which claims that paradigmatic cases and particular judgments allow us to draw moral conclusions independently of general norms. Such ‘casuistic’ model is comparable to the precedent-system of the common law. New cases are decided on the basis of previous cases that show similar features and present similar problems as the case in question. Chapter 4 will examine the possibility of a ‘contextual’ and ‘case-sensitive’ approach to the justification of paternalistic interventions. However, this approach does not necessarily imply casuistry. With virtue ethics in centre, the question is not how to derive right actions from previous paradigmatic decisions, but how to derive right actions from virtuous character. (3) It is possible to argue that there is a ‘middle way’ between the top-down and the bottom-up approaches in which general rules and individual cases seem to mutually influence each other in a ‘reflective equilibrium’. Neither principles, nor paradigmatic cases are given priority here. It is the coherence of these elements that matters. The way this book makes use of certain hard cases of paternalism seems to reflect a ‘reflective equilibrium’ approach since the discussed cases aim to demonstrate how moral intuitions might influence abstract principles in concrete situations.

The method of my theoretical investigation is mainly analytical which might be explained by the fact that the discourse on paternalism is dominated by the works of English and American authors. The scope of legal research is limited to the analysis of selected cases and problems. A comprehensive empirical overview of paternalistic legal regulations will not be provided, partly because it is irrelevant from a theoretical perspective, and partly because it seems impossible to examine all laws and judicial decisions related to this issue. The notion of paternalism is extremely wide, especially when benefit-promoting forms are taken into account. With a slight exaggeration, most forms of welfare regulations and institutions, from public education to health insurance policies, can be considered as having paternalistic implications.

1.3  The structure of the book

This book consists of four main chapters. The theoretical investigations of the first three chapters (chapters 2, 3 and 4) make up the larger part of the work, while the last chapter (chapter 5) discusses practical legal issues. Chapter 2 deals with the definitional and justificatory questions of paternalism. Although it might seem easy at first sight to give an account of paternalism, there is a large variety of substantially different definitions in the philosophical literature. The aim of this chapter is to identify the definitional elements that seem necessary to construct an ‘adequately wide’ notion of paternalism. The analysis will show ← 13 | 14 → that most definitions make reference to the violation of the subject’s liberty or autonomy (i.e. the ‘element of interference’) and to the harm-preventing or benefit-promoting character of paternalism (i.e. the ‘element of benevolence’). The chapter also demonstrates how definitions gradually extend the ‘element of interference’ in order to cover most diverse forms of paternalism. Since completely self-regarding actions are extremely rare and almost any action can be interpreted as ‘interfering’ with someone else’s autonomy, the question arises whether ‘interference’ is a necessary conceptual element of paternalism at all. It is possible to argue that paternalism is best defined by its motive which, on a rudimentary level, implies benevolence, i.e. the benevolent desire to take care of someone in need. After the analysis of possible definitional elements, the ‘external’ and the ‘internal’ aspects of paternalism are examined. Since paternalism often overlaps with other liberty-limiting principles, conceptual clarity requires that it is separated from other principles used to justify intervention to someone’s liberty. With respect to the ‘internal’ aspects of paternalism, distinctions are made within the concept and different ‘subtypes’ of paternalism are identified.

The second part of the chapter presents the most commonly employed justificatory models of paternalism. It seems possible to distinguish between three basic approaches of justification, corresponding to the three main trends of normative ethics. Emphasis will be placed on the examination of autonomy-based justifications due to their apparent predominance in the scientific discourse. Two main trends are distinguished within this category: voluntariness-based justifications focus on the voluntariness of self-harming actions, while consent-based theories require the paternalised person’s consent to justify paternalistic interventions. The voluntariness-model is presented through a critical examination of Joel Feinberg’s theory. Certain weaknesses of Feinberg’s theory are pointed out, including the problem of ‘evaluative’ self-harming decisions. These decisions are fully voluntary, but they might seem irrational or unreasonable to others because they represent unusual and essentially subjective preferences. Feinberg’s theory seems unable to give a conclusive answer to paternalism when it comes to such self-harming choices. On a more fundamental level, it is possible to object to the ‘fetishization’ of voluntary choice on the basis that Feinberg connects voluntariness too ‘intimately’ to the notion of autonomy. Equating voluntariness with autonomy is problematic because voluntariness seems to be only one element of autonomous decision-making and acting voluntarily does not necessarily lead to an autonomous life based on truly authentic preferences. Proceeding to consent-based theories, five types of consent will be examined with respect ← 14 | 15 → to their justificatory potential related to paternalism (contemporaneous, prior, subsequent, anticipated and hypothetical consent).

Chapter 3 is an attempt to point out some of the weaknesses of the autonomy-based approaches. The first section contains a detailed examination of the notion of autonomy. Autonomy is a complex concept that can be understood in many different ways. Consequently, an autonomy-based approach to paternalism first seems to presuppose the adoption of a specific theory of autonomy. Personal autonomy is constituted by external and internal components that can be oppositely affected by different interventions. Paternalistic manipulation, for example, interferes with the internal conditions of autonomy (e.g. by affecting the process of preference formation) but it does not necessarily take away options from someone. Moreover, the value and the normative character of autonomy seem to be ‘contingent’ on social-historical circumstances. People attribute a distinguished value to autonomy in the modern age but with the failure of the ‘Enlightenment-project’, the ‘myth’ of autonomy is gradually dissolved. As emphasis shifts from the individual to the community, the approach to paternalism also seems to change from rejection to (limited) acceptance.

The second section examines the problems associated with the harm principle of John Stuart Mill. The principle, in its original form, sets a blanket prohibition to legal paternalism and moralism which is justified by Mill’s utilitarian reasoning. However, there is a tension between Mill’s commitment to utilitarianism and his categorical approach towards liberty. This tension is resolved by ‘replacing’ the utilitarian justification of the harm principle with a deontological framework. It will be demonstrated that this ‘interpretational change’ is already implicit in On Liberty and it is fulfilled in the theories of modern liberal authors such as Joel Feinberg. Taking into account this interpretational shift, a strange paradox appears: while the absolute character of Mill’s prohibition is gradually abandoned through different methods of ‘softening’ the harm principle, the utilitarian justification is replaced by a deontological background, which seems more suitable for justifying categorical prohibitions.