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Paternalism and the Law

Barbara Hands considers whether it is ever right for the law to limit your freedom of choice and action, for your own good.

Fred and Bob are a gay couple who have been together for 15 years. Fred is nearing death from AIDS, and his partner Bob is a doctor. Fred has asked Bob to relieve him of his misery now so that he does not have to be in pain and a burden to Bob for the next three months or so. Fred and Bob are aware of the law prohibiting physician-assisted suicide. They consider the law paternalistic and find themselves wrestling with the question of whether or not it is morally justified.

What is paternalism? What does it mean for a law to be paternalistic? If a law is found to be paternalistic, does that also mean it’s not morally justified? This article will examine these issues and attempt to resolve them.

John Stuart Mill, Gerald Dworkin and Seana V. Shiffrin all have thoughts about paternalism. Mill believes there is no justification for paternalism under any circumstances; Dworkin claims that to be justified, paternalistic laws need to meet two criteria; and Shiffrin makes a general case for paternalism. I will compare their ideas and analyze them with respect to physician-assisted suicide. In the end I hope to persuade you that Dworkin’s and Shiffrin’s arguments are insufficient to withstand the power of Mill’s arguments against paternalism.

Let’s look first at the concept of paternalism. The Oxford Companion to Philosophy describes paternalism as “the power or authority one person or institution exercises over another to confer benefits or prevent harm for the latter regardless of the latter’s informed consent.” In other words, paternalism is the interference with a person’s liberty of action for reasons exclusively referring to the welfare or interests of that person.

Paternalism is not controversial when applied to children or the mentally ill, under normal circumstances. But paternalism is otherwise thought by many to be a threat to individual autonomy, liberty, rights and privacy. With regard to the ban on physician-assisted suicide, in deciding that it is better for someone to continue to live a few more months even though it means resultant suffering, a government is acting paternalistically. This is not so different from a father who prohibits his son from driving with friends to a concert 200 miles away. But although many might feel the father is justified in limiting his son’s actions because he thinks that it’s for his son’s good, they could still ask why or how the government is justified in acting in a paternalistic manner towards adults.

There are many laws that fall under the umbrella of paternalism. Some of these laws prohibit us from doing things, such as prohibiting us from swimming when no lifeguard is stationed at the beach. Some of these laws require us to do something, such as wearing seatbelts in a car, or wearing helmets while riding motorcycles. Some of these laws benefit the person restricted by the law, such as laws which prohibit underage smoking (this is called pure paternalism). Some of these laws benefit persons other than those restricted – such as laws which regulate the licensing of those who practice medicine (this is called impure paternalism).

Mill’s First Argument

In his famous essay On Liberty (1859), John Stuart Mill offers arguments for the absolute prohibition of paternalism. As a utilitarian, Mill is looking for the best possible outcome [‘the greatest good for the greatest number’], and he finds no instances where a paternalistic action provides this.

Mill’s first argument is of a consequentialist nature. He claims that no one knows or cares more about an individual’s interests and advancing those interests than the individual in question. But this may not necessarily be the case. Children and those with an infirmity are not always able to recognize what is best for them, for example. I recently visited the doctor because I don’t have the specialist knowledge needed to make the best decision about my health care. And in many other everyday cases people cannot always recognize the best course of action. My church must sell a portion of its property to the state of North Carolina for a road expansion project. We have enlisted the services of an attorney to aid in the legal matters. The parent of a severely disturbed person may care for that person more than that person cares for herself. We are not experts in all scenarios, and so must sometimes rely on the directions and decisions of others to ensure the best path for us. Mill’s justification here for a total ban on paternalistic acts does not withstand scrutiny.

Dworkin’s Arguments

In Morality and the Law (1971), Gerald Dworkin claims that paternalism is justified only when two conditions apply. Firstly, the paternalism must be intended to protect against irrational propensities – deficiencies of cognitive and emotional capacity and ignorance, both avoidable and unavoidable. Secondly, to be justified, paternalistic intervention must be restricted to decisions that are far-reaching, potentially dangerous, and irreversible. (These three conditions for decisions are all necessary, and jointly sufficient.)

Let’s first look at Dworkin’s ideas concerning irrationality. One could be guilty of having an evaluative illusion, for example – of being irrational by attaching incorrect values and weightings to certain actions, causing a gross miscalculation of costs and benefits. For instance, if Mary determines that the costs of wearing a seatbelt – discomfort of the shoulder and stomach, crumpling of clothing, etc – are higher than the benefits of wearing it – surviving a car wreck without permanent disabilities – then she has acted irrationally because she has evaluated wrongly. Another type of irrationality is when a person is unable to act on or in accordance with her preferences. She’s experiencing a weakness of will and could be called irrational. For example, if I had decided that I truly did want to quit smoking, but kept finding excuses to begin tomorrow instead of now, I would be experiencing a weakness of will. According to Dworkin, this is acting irrationally.

Now a person contemplating physician-assisted suicide may not seem to be experiencing a weakness of will. Fred’s will seems strong. He knows what he wants and appears to be willing to follow it through. Neither does he appear to be having an evaluative illusion. He knows the consequences to himself of ending his life, and believes that they’re better than the life he will have if he does not. So far, Dworkin has not justified the outlawing of physician-assisted suicide.

But Dworkin also claims paternalism is justified to protect against diminished cognitive or emotional capacity. If I decide I can step off the roof and plummet to the ground, yet get up and walk away, as I have seen Wylie Coyote do many times, I would be suffering from a cognitive deficiency. You would be perfectly justified in stepping in to try and stop me, even though you are interfering with my choice.

As a matter of fact, we seldom hesitate to step in and interfere with each others’ choices in such instances. After a friend consumes ten beers and an equal number of bourbon chasers, it is not unjustified, and is in fact expected, for one to prevent that friend from driving home. The friend’s delusion that she can drive is potentially dangerous, and could have far-reaching and irreversible consequences. After she looses her duel with the telephone pole, the friend could be paralyzed for the rest of her life, with no hope of recovery. Here, concerning the protection of someone unable to make rational decisions for herself, Dworkin may have a plausible justification for paternalistic laws.

There are further ideas to consider before we can accept Dworkin’s proposals. It is plausible that an attempt to climb El Capitan in Yosemite National Park is potentially dangerous and could cause far-reaching, irreversible consequences. Even experienced climbers have accidents. So should there be a law against certain kinds of mountain climbing?

In Mary’s mind, Sue is having evaluative illusions, because she puts her money into a mattress rather than into a retirement fund. But Sue has heard horror stories from her parents and grandparents of what it was like to live through the Depression, and she wants to make sure her family does not suffer in a similar manner if there is a modern-day banking failure. Should we have laws against stuffing our mattresses with money, requiring all individuals to use a bank?

Dworkin claims that as far as paternalism and law are concerned, it is the state’s responsibility to show exactly the nature of the potential harm and the probability of its occurrence, and that the state should interfere as little as possible consistent with the justification for the paternalistic interference. In the case of intervening in Fred’s desire for physician-assisted suicide, the state’s burden of proof would be very great.

Remember that Dworkin claimed that paternalism is justified only for decisions that are far-reaching, potentially dangerous and have irreversible consequences. The decision to end one’s life is surely a far-reaching decision that has irreversible consequences – but is it potentially dangerous? To be potentially dangerous it would seem that there must be some reduction in the quality of life. But a case could be made that the quality of Fred’s life would not be lessened by death, since in death there is no life at all. Though the emotional states of loved ones may be in disarray for a time, the overall quality of their lives is improved when the burden of caring for a terminally-ill person is removed. Since the potentially dangerous aspect is not present for the dead person, Dworkin’s argument fails to support a ban on physician-assisted suicide here either.

Shiffrin’s Arguments

On the other side of the coin, Seana V. Shiffrin suggests in ‘Paternalism, Unconscionability Doctrine, and Accommodation’ (Philosophy and Public Affairs, Summer 2000) that paternalism can be justified. Shiffrin believes that neither a violation of autonomy nor interference with liberty are necessary for paternalism, and that a violation of autonomy is also not sufficient for paternalism. She further claims that even though some behaviors are freedom-enhancing they can also be paternalistic. For instance, if I have declared that I only want to serve chips and pretzels and one brand of beer at my party, but you show up with hot wings, a veggie tray and a cooler full of Heinekens and Coronas, you are treating me paternalistically. You decided that I could not make proper choices and that you would make them for me.

For Shiffrin, paternalistic acts also need not be contrary to the desires an agent actually has. If you are hiding my cigarettes while I am trying to quit, then you are treating me paternalistically even though it is my desire to quit smoking anyway. Furthermore, a paternalist need not even be motivated by a concern for the welfare or interests of the paternalized agent. Returning to El Capitan; if a park ranger refuses to let you attempt a climb because he is concerned for your spouse and children, he is taking control over a decision that’s within your domain, but not because he’s concerned with your welfare. For Shiffrin, all that’s necessary for paternalism is that the paternalist take control over something that is properly within the agent’s own domain of judgment.

Shiffrin discusses paternalism in relation to the Unconscionability Doctrine (UD), a rule sometimes applied by courts in the United States. The UD is a decision not to enforce a contract because it is deemed excessively one-sided, exploitative, or otherwise grossly unfair. The standard objection to the UD is that applying it is paternalistic; but Shiffrin believes that even if it is a case of paternalism, it is justified.

This claim concerns the nature of contracts in general. Legal institutions such as contract-making require the cooperation of the community, and enforcement of contracts provides assurances that there will be no abuse of this mutual trust. This is how I am able to enter into an agreement or make a deal with a stranger, a person I have no previous reason to trust. But Shiffrin claims that the state does not need to be prepared to enforce all such contracts: the state is not obliged to ensure that Mary’s promises are kept simply because Mary made a contract with Sue. The state’s interference with Mary’s ability to make a contract is a violation of an autonomy right; but refraining from guaranteeing that Mary keeps her contract is not a violation of an autonomy right. Shiffrin suggests that the state’s justification for not enforcing a contract may simply be a self-regarding concern not to facilitate or assist in harmful, exploitative, or immoral actions. In a similar way, I may paternalistically refuse to help you find your cigarettes, but it may simply be that I do not want to be implicated in your self-destructive decision to smoke, rather than a genuine concern on my part for your health.

I think one can make a parallel with Shiffrin’s justification of paternalistic UD and a paternalistic law against physician-assisted suicide. If Shiffrin’s characterization of paternalism is accepted, then a paternalistic law banning physician-assisted suicide is justified if only for the reason that the state does not want to assist (and be implicated) in one’s decision to end one’s life. If there is no law banning physician-assisted suicide, someone might even suggest that the state is facilitating such suicidal decisions. And if there is no law banning physician-assisted suicide, there would certainly have to be rules and regulations governing when, by what methods and who could partake of such an action. These rules and regulations would be passed by some state or national agency. This could also be interpreted as the government facilitating your choice to end your life. So if the state simply doesn’t want to get involved – not because it wants to see that your life is preserved but because it feels it is not the state’s place to condone suicide – the easiest thing is to ban the action. Shiffrin therefore believes that some paternalistic acts are justified. But is her argument strong enough to counter one last argument against paternalism?

Back To Mill

Returning to Mill, we find that in addition to his utilitarian, consequentialist argument against paternalism, he also has a non-consequentialist one too. Mill believes that the value of a life comes from that life having been chosen by the person who leads it, not by the consequences of the choices the individual makes. Thus Mill celebrates the autonomy of the individual, and anything interfering with or diminishing that autonomy is unjustified. This includes paternalistic laws. Since the individual’s choice to continue to live or not is restricted by paternalistic laws, those laws cannot be justified.

Mill’s only exceptions to autonomous choices and laws are those that would permit an individual to sell herself into slavery. To Mill, choices need to be exercised regularly and throughout one’s life for life to be of value. Obviously, selling oneself into slavery heavily curtails one’s future choices.

For Mill, paternalism would only be morally justified when it’s necessary to preserve an individual’s autonomy – but these instances appear to be very rare, if they exist at all. In particular, there is nothing about a law banning physician-assisted suicide which preserves an individual’s autonomy. Fred’s autonomy and to a certain extent Dr Bob’s autonomy are both limited by this law. Fred is not able to make the decision to live or not, and in the same way, Dr Bob cannot make the decision to help Fred as Fred requests. The state has taken control over a decision which should properly be within the individual’s control.

I will agree with Mill, that it is autonomy which makes my life valuable. Lacking such autonomy, the life of a chicken on a battery farm or even the life of a person in a permanent vegetative state would be much less valuable. With the lack of any apparent reasons to dismiss this idea, I believe we are left with Mill’s (almost) absolute ban on paternalistic laws. A paternalistic ban on physician-assisted suicide does not preserve the individual’s autonomy. Respect for the individual’s autonomy has been removed by a law preventing a terminally-ill patient from making choices. And the value of Fred’s life is surely diminished by his inability to make an autonomous decision about his own future.

Shiffrin makes some interesting points; and a law banning physician-assisted suicide may not be unjustified in some instances, such as with children, or for Dworkin’s adults of diminished cognitive or emotional capacity. Such provisions would need to be written into the law. But for a rational individual like Fred, who is destined for a life that will qualitatively continue to deteriorate, a law against physician-assisted suicide is both paternalistic and unjustified. Such a law would be self-serving – requiring that Fred remain alive, unable to act on his autonomy until his mental or emotional state reaches such a point that Dworkin’s deficiencies come into play and he needs the choices made for him, in a way he never wanted.

© Barbara Hands 2009

Barbara Hands is a Philosophy Instructor at the University of North Carolina at Greensboro. Her teaching emphasis is Contemporary Moral Issues and Philosophy in Science Fiction.

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