Instead of trying to tackle all of the cases that fall under Mill’s Harm Principle, we’re looking at specific reasons for limiting liberty.
Last week, we talked about offense. The question was: can the state limit liberty on the grounds that the behavior to be limited is offensive? (Strictly speaking, we should add: “provided the proposed legislation meets a variety of other conditions meant to preserve liberty and avoid errors as well”.) Mill’s Harm Principle says “no”, most people say “yes”.
This week, we talked about another case: paternalism. Here, the question is whether the law can limit liberty on the grounds that the behavior to be limited is bad for the person who engages in it. (Again, provided other conditions are met). Mill’s Harm Principle says that the individual’s “own good, either physical or moral, is not a sufficient warrant” and that “he cannot rightfully be compelled to do or forbear because it will make him happier; because, in the opinions of others, to do so would be wise, or even right” (p. 267). In other words, “no”.
But most of us say “yes”, at least in some cases.
Note that this way of setting up the issue helps us to put aside thorny questions about line-drawing. By that I mean questions about whether a given act is merely offensive rather than harmful or whether the real reason for legislation is paternalistic or for the social good.
Those are genuine questions about a lot of real legislation. But to keep our discussion focused, I asked you to imagine that the sole argument for a piece of legislation was a paternalistic one. If we find that no such argument can ever work, we will dismiss them all out of hand.
This question has come up a number of times. Victor asked how the assertion that some contentious policy or activity is “intrinsically good” can provide an argument for that policy or activity that an opponent is obliged to answer. (It doesn’t, unless the opponent agrees with the assertion about intrinsic value). David pressed some of the examples on Tuesday on the grounds that they merely assumed that we could know when an outcome would be good for someone and that we could measure how good it is. Finally, Michael objected to Dworkin’s failure to address the issue of how we could determine what is good for someone; he correctly noted that this is the most important question.
All true! So why are we going on about this?
We’re going on about this because some cases are about as obvious as you’re going to find in any debate about values. If we can’t agree that life and health are good, we can’t agree about any values. Fortunately, there is no serious dispute of either point.
There are disputes about how these things should be compared with other aims. I can imagine jobs that would be healthier than this one. But this is what I want to do. Many people have recreational activities that are risky to health and, occasionally, life. But that’s what they want to do.
Dworkin’s case for paternalism is restricted to the clear cases, where there’s no serious assertion that the lost liberty is important or desired. That’s what the requirement of hypothetical consent does for him. He has a strong bias towards liberty and against paternalism.
Really, we should insist on an explanation of that. What is so great about liberty? Why shouldn’t we do what’s best for people, even if it comes at the expense of more liberty than they want to give up?