February 23, 1995
John Stuart Mill, quoted by Gerald Dworkin on page 367 of the text, writes: " . . . the only purpose for which power can be rightfully exercised over any member of a civilized community . . . is to prevent harm to others." Dworkin, questioning the contention, defines paternalism, same page, as " . . . 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." He then argues, on utilitarian grounds, that there are instances where paternalism is justified. On page 379 he talks about (1) "irreversible situations," (2) "decisions under pressure" and (3) "decisions made where the factors are not appreciated." After discussing these three situations, he concludes (page 381) "I have suggested . . . a number of types of situations in which it seems plausible that rational men would agree to granting the legislative powers of a society the right to impose (paternalistic) restrictions .
. . "
I argue against this claim, holding that Mill's claim is absolute. My grounds are those of religious absolutism, exemplified by C. S. Lewis's observation in "God in the Dock," where he says " . . . a tyranny sincerely exercised for the good of its victims may be the most oppressive . . . those who torment us for our own good will torment us without end, for they do so with the approval of their own conscience."
A focus: I write only about "mature" people and "state" actions. I exclude cases of mental illness and mental retardation, senility, and all other cases outside one's usual idea of a reasonably lucid functioning adult human being. If the state wishes to force a drunk to go home rather than lie in a ditch, I am unconcerned; a drunk is not lucid. If a bovine school board forces a student to cut his hair or suffer ostracism, this is regrettable, but a student is not mature. If a nursing home feels it must strap me to a chair for my protection, this may be unfortunate, but a nursing home is not a state. The
objection that there is no well-defined line between the class of people I consider, and those I exclude (i.e., at what age is a person suddenly "mature") does not suffice; certainly a person of 35 qualifies and a person of 3 does not; all the rest is wrangling over detail.
I begin with the preamble to the U.S. Declaration of Independence:
"When in the Course of human Events, it becomes necessary for one People to dissolve the Political Bands which have connected them with another, and to assume among the Powers of the Earth, the separate and equal Station to which the Laws of Nature and of Nature's God entitle them, a decent Respect to the Opinions of Mankind requires that they should declare the causes which impel them to the Separation.
We hold these Truths to be self-evident,
that all Men are created equal,
that they are endowed by their Creator
with certain unalienable Rights,
that among these are Life, Liberty,
and the Pursuit of Happiness-
That to secure these Rights, Governments are instituted among
Men, deriving their just Powers from the Consent of the Governed, . . . ."
I don't know what Mill thought of these words; I know that they express a sufficient ground for Mill's thesis, independent of utilitarianism. I add to them these words from Thomas Jefferson, written when he drafted the Virginia Act for Religious
Liberty in 1786:
"... Almighty God hath created the mind free . . .. all attempts to influence it by temporal punishments or burden, or by civil incapacitations, tend only to beget habits of hypocrisy and meanness, . . . it is time enough for the rightful purposes of civil government for its officers to interfere when principles break out into overt acts against peace and good order. . . . What has been the effect of coercion? To make one half the world fools, and the other half hypocrites." So, Jefferson appears to be arguing Mill's thesis, fifty years earlier, on both absolute and utilitarian grounds; the
utilitarian grounds are rooted in absolutism.
It is dangerous to argue for an absolute; an "always," and that is Mill's thesis; a single example can fell it. I assume that Dworkin's three situations are a good response to Mill, but of course, the possibility of a new example always exists; so the argument is never finished. Refuting Dworkin, then, is a necessary response to establish Mill's contention, but no sufficient response will ever be possible.
(1) Irreversible situations. We assume a person, X, who is about to make an irreversible decision. He is about to do "a dangerous thing"; it may be driving without a seat belt or making his first hang glide attempt from a Piper Cub 2000 feet above the desert. We (the government officials) are quite sure he hasn't all the data to make an informed decision. We therefore send large\men in blue with guns to coerce his behavior into what the state approves.
But one may argue that X will never have enough data. One may argue about what data is relevant. X, himself, is the only one who cares enough to get and understand the data. As each case is different, the applicable data for each case is also different. I see a reason for the state to use persuasion in words, but not deeds, as such persuasion may be accepted, or ignored, by X. Even using X's tax money to publicize such persuasion is probably OK, for this is "promoting the general welfare," a legitimate government function. But the government has no coercive right to "promote a specific person's
welfare." We are peers under our creator; no person, no persons, no government body is placed "in loco parentis." Each person's "pursuit of happiness" is his alone to follow. The DOI makes no exemption for the state.
Under this classification are a host of governmental interference policies, including drug use, prostitution, gambling, etc. Most of us agree that these are "bad things." But should the State be the arbitrator? If so, on what grounds? If the DOI means what it says; if we are all truly peers before our creator, it follows that every man is not only his own priest, as the Protestant religion affirms, but also his own keeper. It is X that bears responsibility for his behavior, not the State. To send police to enforce that behavior is immorality of a peculiarly vicious kind, as C. S. Lewis aptly noted.
The Rhode Island case discussed on page 368 presents an interesting twist. The court upheld paternalistic legislation on the grounds of the state's interest in not allowing helmetless cyclists to become public charges. Yet the state decision to take care of accident cases surely came first! Presumably, motorcycle cases were already considered in that particular decision. Using this "reasoning," it would be OK for the state to establish absolute control over its people -- to the extent of their nutrition habits, their sexual preferences, etc. I suspect that this is a "heap" argument; if it is,
I don't see it as fallacious.
(2) Decisions made under pressure. Dworkin discusses suicide, and does so wrongly. If the State decides to withhold social security benefits in the case of a suicide, that is its right; it is not "parenting," but simply defining a business case to the potential suicide; more data that he may consider. As for the religious institution example, such is not a government; one is free to join or not join any such institution; no coercion is possible in the sense of the Mill thesis.
Dworkin's argument for a "waiting period" also fails, for to one in extreme untreatable pain, a minute is eternity, while to one mentally depressed over a wasted life, time is hardly a factor at all. No possible law could cover all the situations, for people are autonomous, they can always dissent; they need give no reasons, for there can be no law which legislates "rational" behavior.
(3) Decisions made where the factors are not appreciated "correctly." Dworkin illustrates, on page 380, several cases involving cigarette smoking. Here, he overestimates the capability of statistical science to provide meaningful answers for individual cases. The risk to an octogenarian of beginning to smoke is obviously unlike that of a teenager! The risk of driving without seat belt restraints is clearly different in a driveway than on a parkway! More to the point -- it is
not the state's duty to tell an individual either what the data is -- or what the data means! As in (1) above, it seems OK to make data available, as well as an "official" interpretation. But that's all. I constructed the following little verse (?) to illustrate this:
Numbers are not data.
Data are not facts.
Facts are not information.
Information is not knowledge.
Knowledge is not truth.
Truth is not wisdom.
Wisdom is not virtue.
Virtue is not love.
Love, however, is not chocolate! -- jb
The point? Everywhere along the ladder is human interpretation. This cannot be done by a state, for every case is unique.
Dworkin concludes that he has suggested a number of situations " . . . in which it seems plausible that rational men would agree . . . " on paternalistic legislation. I assert that he has not made that case in general, or with any of the examples adduced.
In summary, Mill's dictum for the state to keep "hands off" people is defended on religious libertarian grounds and three classes of possible state paternalistic policies suggested by Dworkin are discussed and rejected.
John W. Burgeson