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A justification of paternalism Carter, Rosemary Ann 1974-12-31

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A J U S T I F I C A T I O N OF  PATERNALISM  by Rosemary Ann B.A.,  University  of  B r i t i s h Columbia,  A T H E S I S SUBMITTED I N THE  Carter  PARTIAL  REQUIREMENTS FOR THE  FULFILMENT  DEGREE  MASTER  OF  in  Department  the  1973  OF  ARTS  of Philosophy  We  accept  this  thesis  required  standard  Jonathan  Bennett  D.  G.  as  conforming t o  Brown  Richard  THE  Sikora  U N I V E R S I T Y OF B R I T I S H September,  197^  COLUMBIA  the  OF  In  presenting  an  advanced  the I  Library  further  for  degree shall  agree  scholarly  by  his  of  this  written  this  thesis  in  at  University  the  make  that  it  purposes  for  freely  permission may  representatives. thesis  partial  is  financial  for  of  Columbia,  British  gain  Depa r t m e n t Columbia  for  extensive by  the  understood  permission.  The U n i v e r s i t y o f B r i t i s h V a n c o u v e r 8, Canada  of  available  be g r a n t e d  It  fulfilment  shall  Head  be  requirements  reference copying  that  not  the  of  agree  and  of my  I  this  or  allowed  without  that  study. thesis  Department  copying  for  or  publication my  i Abstract I attempt i n t h i s paper to develop a theory of paternalism which indicates when and why a paternalistic action i s j u s t i f i e d .  In the  f i r s t two chapters I consider the extant theories on t h i s subject: i n the f i r s t chapter I develop a u t i l i t a r i a n theory of the j u s t i f i cation of paternalistic interference, and i n the second chapter I consider various non-utilitarian theories that have been offered. Although I do not agree with the u t i l i t a r i a n analysis of rights, and so with t h e i r rationale f o r paternalistic intervention, I argue that such a theory does provide a strong presumption against such interference.  Nor do I find any of the non-utilitarian theories satisfac-  tory, although they each contain certain important insights. In the t h i r d chapter I develop my own theory.  I claim that there i s r e a l l y  only a problem i n j u s t i f y i n g paternalism when the subject has the prima facie right to do what he proposes t o do. I t i s therefore necessary to determine under what conditions any prima facie right can be interfered with.  From results of t h i s investigation I conclude  that consent, either t a c i t or e x p l i c i t , p r i o r or subsequent to i n t e r ference, i s the key to the j u s t i f i c a t i o n of paternalistic interference. More s p e c i f i c a l l y , I argue that consent, or the disposition to consent upon receipt of factual information or correction of a l o g i c a l error, i s a necessary condition for j u s t i f i c a t i o n , and that i t i s also suff i c i e n t except where i t i s gained by "warping" the subject's preferences, or where i t i s due to lack of relevant information, or a l o g i c a l error.  Table  of  Contents  Introduction  Utilitarian  Justification  Some N o n - u t i l i t a r i a n  Development  Bibliography  of  of  Paternalism  Theories  an A l t e r n a t i v e  Theory  i i i  Acknowledgment s  Acknowledgments out  the  several  comments I Council  are  drafts  on p r e l i m i n a r y  also for  wish to the  year  due t o  of  this  Richard thesis,  Sikora and t o  for D.  G.  his  help  through-  Brown f o r  his  versions.  acknowledge  the  during which  I  financial wrote  this  support thesis.  of  the  Canada  1  Introduction  I  make t h e  assumption i n t h i s  shared by most people sumption i n is a  to  favor  interfere  rationale  can be  c o u l d be that  for  we  either are  is  are  that  we  the  subject*s  the  f i r s t  are  In  and why  the  good.  The  are  protecting actions  kind of  in  given for  on t h e b a s i s whether  is  the  in  —  when t h e  such interference  is  justified,  shall define  order to  be  i f  to  one offer  interference  who i s the  pre-  supposed  subject  to  himself  interference  realize  certain  would u s u a l l y be  offered  harmful consequences in this  interference  paper is  or  is  of with  for the  grounds f o r  good  interference  recognized problem i n determining  paternalism for  T h i s means t h a t but  and t h a t  is  and i t  i s  to  this  when  problem  attention.  or b e l i e f s  welfare,  is  when t h e  a  I  of  }ty c o n c e r n  is  my  standing  reason f o r  from the  other words,  a  such  a position to  or beliefs.  believe  him from harming h i m s e l f  There  direct  i t  reason that  others  rationale  or,  reasons  ~  is  I  one m u s t be p r e p a r e d  preventing  he  there  and b e l i e f s ,  former case the  latter,  I  actions  we  these,  one w h i c h  that  action  classes  the  that  subject,  of  interference  paternalistic.  that  so.  ensuring that In  the  doing  else.  benefits.  of  with either  from the  someone  our culture,  freedom of  d i v i d e d i n t o two  benefit or  of  in  paper,  reasons the  interference  as to  major  coercive  interference  do p r i m a r i l y w i t h  the  c o n s i d e r a t i o n must be  need not  be  considered paternalistic.  for this So,  i f  with  someone's  subject's the  subject's  reason exclusively parents  own  want t h e i r  in child  2  to  take  piano  lessons mainly because  from doing so, to  play  the  ence w i t h either  with  force  would  person to  any  beliefs course  interest  the  have t o  religious  think  count  with  s o m e t h i n g he  an extreme  does  seen by the  o r d e r t o be  fanatics,  i t  of this  not  she  but  do.  imagine  some  way.  interference, modify would  i n the fervor  the  or  Interfering  radically  the  we  do,  Such processes  given  difficult to  interfer-  want t o  as b e i n g  learns  action  kind of  that  them.  instigators  paternalistic, is  not  changing them i n  example  i f  someone's  s o m e t h i n g he d o e s want t o involve  benefit  as p a t e r n a l i s t i c  interfere  person subjected to be  she w i l l  make t h e m h a p p y  other psychological processes  of  in  w i l l  s t i l l  do  someone's b e l i e f s would would be  it  W h e n we  him from doing  along with  of  this  actions. that  Brainwashing  the  a l s o because  piano,  her  we p r e v e n t  but  they  subject's of  some  appropriate  circumstances. David lates  as  Donaldson* has  paternalistic  forced to  do  acts,  s o m e t h i n g he  ficiary  act  prefers;  money when t h e I  have  this  for  raises  paper  i n which the  do)  but  also those  affects  the  donor equally  example,  latter  only those want t o  do ( o r  giving people  would be p r e f e r r e d .  offerei captures  Donaldson's in  which  not  a broader d e f i n i t i o n which  doesn't  s o m e t h i n g he d o e s want t o alternative  offered  the  further  (although  I  central  cases  of  prevented  they  w i l l  from is  and which t h e  food vouchers since  the  paternalism,  problems with which I think  subject  i n which there  But  stipu-  have t o  don't be  is doing  an bene-  instead  of  definition and  since  wish to  dealt  with  deal  3  eventually) In  I  the  shall  f i r s t  set  two  i t  aside.  chapters  justification  of paternalism,  tive  The  theory.  theory  to  actions  the  how s t r o n g  out  on t h e  and  chapter  offer  is  an  of  M i l l  to  theories  of  It  is  with  paternalism would never  be  as  alterna-  someone's  interesting  such interference that,  the  utilitarian  interfere  thought  on  t h i r d my own  application  grounds.  against  utility.  extant  i n the  ought  on p a t e r n a l i s t i c  a presumption  basis  fact,  examine the  p r o b l e m o f when one  or beliefs  see  tingent  first  I  can be  a matter  j u s t i f i e d towards  to  made of  con-  sane  adults: "... the sole end f o r which mankind are warranted individ u a l l y or c o l l e c t i v e l y , i n i n t e r f e r i n g w i t h the l i b e r t y of a c t i o n of any o f t h e i r number, i s s e l f - p r o t e c t i o n . That the o n l y purpose f o r which power can be r i g h t f u l l y e x e r c i s e d o v e r a n y member o f a c i v i l i s e d c o m m u n i t y , a g a i n s t his w i l l , i s t o p r e v e n t harm t o o t h e r s . H i s own g o o d , e i t h e r p h y s i c a l or moral, i s not s u f f i c i e n t warrant. And t h a t each  this  is  so because  individual is  left  everyone w i l l  to pursue  his  believe,  and argue  implicitly,  that  but  there  nonetheless  fairly  that  against probable since  are  such interference. i t  this  is  that  one w i t h w h i c h many  moral  But  think  paternalism  constitutes  utilitarians.  I  of I  a fairly us w i l l  do not  justification for  own g o o d a s  this  think  is  a false  interference.  off  i f  sees f i t .  I  empirical  utilitarian  in  for  whether  arguments  non-interference, or not  we  the  That  think  I  how  disutilities,  u t i l i t y provides i s ,  claim,  illustrate  over-all  argument  sympathetic that  he  useful to  result  strong be  is  strong  it  w i l l  always be b e t t e r  don't  are  necessary that  4  whether cerns  or not  only  ties.  one  himself  This  is  should be p e r m i t t e d t o  do  ought t o  on a c a l c u l a t i o n  really  a basic  rights,  and  tion  —  such an argument  that  the  do not  utilitarian  fere quite to  this i f  can't  argue  belongs  nor  over-all  out,  of  so t h a t  interfere  Eut  with  decision.  here  i n  I  for  rights  is  question  the  a theory  truth  of  not  would l i k e  there  is  to  freedom of  do not  an e m p i r i c a l l y i m p l a u s i b l e  of  rights  point  my  —  u t i l i role  I  do  that  assume  for  should not  situation although  i t  who  a  u t i l i t i e s inter-  one does  whether  being  of  assump-  an o b l i g a t i o n t o  there  con-  For those  out  then whether  action  of the  over-all  agree that  think that  of  correct.  neither  interfere,  surely you w i l l  another's  on the  he w a n t s when i t  d i s u t i l i t i e s and t h e  an o b l i g a t i o n not t o  arbitrary.  entirely  conflict  assumption I  the  balance  arbitrary is  although I  u t i l i t a r i a n account  share  seem t o  rest  as  one  is  ought  rest  such a  so  on  an  balance  might be  f a i r l y  unusual. At  any  rate,  moral problems, of  different  i t  seems t o  tant  to  I  do not  a position that  reasons. me,  attempt  accept  allows  Because  u t i l i t a r i a n i s m as  is of  the  s h a r e d b y many p e o p l e this  and because  unjustified paternalism,  a non-utilitarian rationale  for  I  solution for  a  to  number  utilitarianism, think  i t  i s  impor-  paternalistic  inter-  ference. Rawls,^  Dworkin,"* Brown,^  such a r a t i o n a l e . some d e t a i l ,  In  the  and  Donaldson^ each  second chapter  p o i n t i n g out what  I  think  I  the  attempt  examine t h e s e various  to  provide  theories  problems  are  in  with  5  each  of them.  rationale which I  I  for  don't  interference,  incorporate  The  think  in  the  but  one way  t h i r d chapter  my s o l u t i o n t o  any  is  really  a p r o b l e m when t h e  a prima facie  (or  not  do what  what c i r c u m s t a n c e s I  conclude that  quent  to  certain  tion,  and that  conditions. consent of But  any  is  rights  o n l y make  is  I  is  of  am n o t  a brief  the  that  to  f i r s t  or the  rights  is  important  at  a theory the  of  rights  solution to  or  this  is  doing  results  subse-  paternalistic consent  justifica-  specified in  arises  c o n c e r n i n my t h e o r y  is  under  F r o m my  condition of  Another problem which  offering  from  prior  some  is  paternalism  disposition to  under  of  interfere  consider  j u s t i f i c a t i o n of  s u f f i c i e n t except  central  to  proposed  or e x p l i c i t ,  a necessary  of  and defense  interfered with.  consent, is  I  insights  theory.  being prevented  him),  tacit  key  analysis  gesture  of  correct  interference  or not  the  the  important  development  of is  provide  i n t o my own  of whether  can be  the  sufficient. is  to  subject  either  also  Tooley's?  which  them has  another  required  circumstances,  not  because  argue  i t  or  do what he  right  consent,  I  under  to  being  interference,  interference.  of  question  right  is  each  theories  p r o b l e m o f when p a t e r n a l i s t i c  Because t h e  has  these  devoted  justified. only  of  showing i n the  'who  in this  has  paper  when  area rights'. I  can  d i f f i c u l t problem.  6  Footnotes for Introduction 1.  David Donaldson, "Fathers and Sons", unpublished paper.  2. John Stuart M i l l , Utilitarianism. Liberty and Representative Government. Everyman's Library (New York: Dutton, 1 9 1 0 ) , pp. 72 - 73. 3. John Rawls, A Theory of Justice (Cambridge, Massachusetts: Harvard University Press, 1971), see especially pp. 249 - 250. 4. Gerald Dworkin, "Paternalism", The Monist. Vol. 56 (1972), pp. 6 4 - 8 4 . 5. D. G. Brown, "The Rights of Children", The Journal of Education. No. 17 (April 1971), pp. 8 - 20. 6.  David Donaldson, "Fathers and Sons", unpublished paper.  . -7-.. Michael Tooley, i n the Correspondence, Philosophy & Public Affairs. Vol. 2, No. 4 (Summer 1973), PP. 419 - "^W.  7  Chapter Utilitarian  In  this  problem fied. deal  of It  of  chapter  natural  rather,  are  sane  arguments t o show why  not  those  it  adults.  is  one  same  Section In ence,  theory  that  I  there  ought  not  grounds,  interference  This,  this  w i l l  be  u t i l i t y  shall  when t h e  f i r s t  is  one  and t h e  strong  ought t o  be  pre-  subof  second,  question of  I  subjects  And f i n a l l y  in  the  whether  on grounds  second,  a  a number  the  i n which  justi-  is  p r e s u m p t i o n when t h e deficient.  the  great  proposed  develop In  a  argue,  a fairly  case.  where t h e  interference  of  w i l l be  cases  interfere,  I  section I  or mentally  the  to  f i r s t  not  utilitarianism to  on grounds  s h o u l d be t h e  c o n s i d e r two  act  interference  the  is  insane,  arises;  that  Paternalism  of  grounds there  In  or  of  one i n w h i c h  on  forthcoming.  1. order to  show t h a t  a n d how s t r o n g i t  central  of  condoned.  paternalistic  interfere  u t i l i t y  suppose  show why t h i s  section, to  to  on these  children, the  last  apply the  p a t e r n a l i s m w i l l be  sumption against  are  Justification  d e t e r m i n i n g when p a t e r n a l i s t i c is  mistake;  jects  I  1  considerations  likely  to  course  the  be  in  any  there  is, in  a presumption against  shall present  determing what t h e  given case.  supposed b e n e f i t  interfered with.  I  is  to  On t h e the  The p r o b l e m i s  what I  believe  balance  positive  p e r s o n whose  interfer-  side  of  to  u t i l i t y  there  action is  i n determining what the  be  is  the is  of  being possible  8  disutilities expect  are  In  number  the  of  porated  of  On L i b e r t y relevant  i n the  not  those  be  has  I  form of  coercive  vention  of  a  text,  against  out  in  might  itself of  of  most  that  i t  against  himself  suffer.  the  that  shall  the  On  assessed  states  have  a critique  of  in  to  be  a  incorM i l l  I  a consideration is it  to  explicitly  which I  such  one  with  Liberty. reasons  on grounds when t h e is  of  for  non-  u t i l i t y  a  stronger  paternalism takes  merely  attempt  suffer  arise  to  private  make  the  inter-  clear  do  from personal  from which the  and those  why  this  against  something that  former  interference is  the  one does  is  itself  supposed b e n e f i t s  of  of  which  not want t o do).*  interference.  the as  f i r s t . presents nature  do  (or  The v e r y  a d i s u t i l i t y which must be  the  legis-  society  objectionable  s o m e t h i n g one d o e s want t o  objectionable  and/or  subject  from which the  s h a l l consider the  i m m e d i a t e l y t o many p e o p l e  from doing  is  I  into those  considerations  being forced to  prevented  where  one  following discussion.  paternalism might  One  not  l e g i s l a t i o n t h a n when i t  paternalism divide  a whole  of  utilitarian  interference  I  or  acknowledge  page  various  accurately  many is  but  The p o s s i b l e d i s u t i l i t i e s w h i c h lative  be  suggests  shall  relevant  single person.  so i n the  can't  either  suggested I  should point  c a n b e made  considerations would lead  Since t h i s  discussing the  interference  is  of  considerations,  following.  giving the  Before  M i l l  considering his  M i l l  a footnote  case  kinds  d i s u t i l i t i e s where these  advance.  shall  and what  How g r e a t  being fact  weighed the  9  disutility must be force w i l l  is  w i l l  must be  used  over  be much g r e a t e r  be more  term  intervention,  circumstances  of  the  of  a better  position to  means  than  that  judgments w i t h  this,  result  respect  to  his  ference  is  subject's  this  not  of  of  disutility  case.  If  more  legislation tions  since  the  or i f  total  force  the  disutilities  were  used  only  intervention short  depend on the  precise  do  is  for  reasons  these  than  chance  any  and t h a t  w i l l  off  a  c a s e when t h e  he was  right,  is  person.^ in  his  are  likely  think that  his  inter-  out  have the  his  that  disutility  w i l l without  and perhaps before. takes  even  This the  on g e n e r a l  individual cases.  the  the  is  even  form  of  presump-  S u c h p r e s u m p t i o n s may b e  misapplied in  in  others  interference  good f o r people.-^  he  accurate  probably turn  result,  than  other  of being  s o t h e n we w i l l  as  has  preferences,  something against  off  each person  feelings,  interests  i t  that  s u c h l e g i s l a t i o n m u s t b e made  about what i s  gether wrong,  the  i f  d i s u t i l i t i e s than  course  and t h a t  good,  h i s b e i n g worse  l i k e l y t o be  of  own g o o d ,  this  his being better of  w i l l  coercion  Obviously  of  a l t h o u g h someone m i g h t  someone b e i n g f o r c e d t o  utility  amount  over-all  a much b e t t e r  So  the  in  his  t o make m i s t a k e s .  is  time,  the  long term p a t e r n a l i s t i c  else,  assess  has  for his  of  same  time  itself.  own c i r c u m s t a n c e s ,  anyone  he  in  obvious consideration i s  his  etc.  is  of  case.  second most  knowledge  the  although i t  desires,  This  of  l i k e l y to  i t  length  a long period  than i f  Because  w i l l  The  on the  u s e d and how o f f e n s i v e  momentarily.  more  depend both  I  alto-  think  10  there of  is  strong empirical evidence  course  condemn a l l  there  may w e l l  these  are  strong  legislative Not  tion with  arguments  is  that  a better  is to  is  and c h i l d r e n , reason f o r Again I  the  in  the  form of  relevant  chance  a  what  greater  anyone  be  else  take  really  There w i l l  is  cannot  grounds —  --  but  adopting  his  than  as  But  such  responsible for  interest  in  and t h u s  determine  the  this  is  is  to  quite  it  or  whereas t h i s  not,  really  assess  whether  is  this,  he  and  4 .  energy  and t h u s  w i l l  but i l l -  particularly parents  provides  a  good  paternalistically. in  fact  when i t  resulttakes  individual is  proposing  obvious:  body  the  possibly take  accurately  better is  posi-  being."  lovers,  greater  l e g i s l a t i o n cannot  each person necessary  interfered with  interest,  s t i l l  his  because  time  intervention  l e g i s l a t i o n t h a n when a p r i v a t e reason f o r  also  a well-meaning,  i t  subject  in  favored  own w e l l  between  of p a t e r n a l i s t i c the  his  necessary  dealing with people  d i s u t i l i t y for  The  of  exceptions to  and o t h e r s .  danger  accurate  with  the in  strong personal bond,  siblings,  more  information, but  of being correct  using caution i n  interfere.  people  caution in  h i m s e l f because  (probably)  determine  think the  ing  We  from such f a u l t s  considerable  good f o r  he w i l l  outsider.  where t h e r e  suffer  a p e r s o n more l i k e l y t o be  respect  accurately  informed  be  for  claim.  l e g i s l a t i o n on t h e s e  do n o t  p r o b a b l y more c o n c e r n e d t h a n  have  to  some w h i c h  o f what  T h i s means to  paternalistic  support t h i s  measures.  only  assessment  is  be  to  at  for least  his  of  the position,  him that possible  his in  action  11  interpersonal there  is  interference,  a certain  Finally, arise of  thing of  a  to  from his  mistakes,  arise  from two  is  no l o n g e r  necessary,  i t  is  to  things. learn  fact  (if  deliberative whose  to  in  is  of  also  the  itself;  happy t h a n  not  can be  someone t o  The  a fact)  are  The f i r s t  anyone  of  being  this  someone who d o e s h a v e these  making a p o l i c y seen t h a t  that  source  a less  a competent  of  to  do  his  deliber-  he  is  personally had been  harm-  permitted  few  mistakes  be  true  not  t o make w i s e  w i l l be  going to  do  only  f u l f i l l i n g  things being  someone's  one  decisions,  capacity  then,  from  underdeveloped  is  other  that,  d i s u t i l i t y arises  This w i l l  such  deemed  happy i n d i v i d u a l t h a n  unable  some-  fact  d e c i s i o n maker  i t ,  most  opportunity  i t  by making a  of  interfering with is  i n  might  even  from the  d i s u t i l i t i e s only provide  person  when  d i s u t i l i t i e s of  whenever  i f  or  him the  a n i n d i v i d u a l who h a s  be  who h a s n ' t  off  own i n t e r e s t  that  probable  about  o f t e n do f o o l i s h ,  second  w i l l  is  The  intervene  well-developed.  being  should emphasize t h a t for  sources.  consequences  because  he  and t h i s might r e s u l t  serve his  capacities  capacities  because but  i t  him on e v e r y  would deny  He w o u l d h a v e b e e n b e t t e r  how b e s t  above,  of paternalism  seen that  This  l i k e l y he w i l l  o n some m i n o r m a t t e r s . the  subject  remaining underdeveloped.  when t h e r e  ful  can be  interest.  w i l l  the  out  relationship.  interfering with  his  capacities  state  of  o c c a s i o n s when i t  learning  ative  disutilities for  counter  pointed  kind of personal  from a p o l i c y  those  and as  a  less  equal. good  I  reason  a c t i o n when  something counter  to  i t his  12  interests;  in  any p a r t i c u l a r  subject's  deliberative  the  from doing  gains  such as I  the  ones  so,  cited  intervention.  As i t  non-interference  is  than  as  the  case can be arguments The  made  in that gains  whatever they different  to  the  f i r s t  are  the  second from the  nalistic  legislation being directed  ment. ing  The  time,  the to  and energy  society increase  argument  is  that  from non-interference  befall by  resources  the  outside  '•  i n d i v i d u a l s as coercion.  be  of  paternalistic  of  the  talk  of  interference And because  measures,  harms  money,  these  follow.  I  advantages I  shall  the  of cast  strongest  shall consider  the  first.  providing i t  r e s u l t s ; ^ the  to  against  mankind r e s u l t i n g from i n d i v i d u a l s being  wish,  a  considerations,  to  terms.  being permitted t o pursue  benefits  balanced  other  a result  disadvantages  from the  the  as  legislative  field  sources:  from people often  against  that  inhibiting  d i s u t i l i t i e s which might  a whole  following discussion i n those  be  a number o f  more c o n v e n i e n t  the  l i k e l i h o o d of  have t o  and t h o s e  now t o  society  the  w i l l  along with  t u r n my a t t e n t i o n a  the  capacities  already  experienced by  Instance  It  one e l s e ,  their  own g o o d ,  benefits  that  probably  f a i r l y  clear  other  or  innovation  outweigh  any  actions  why t h i s  result  areas  pater-  where  e.g.  improve the  using  environ-  society,  result-  harm t h a t being  do  arise  enforce  considerable,  to  two  which  since  used t o  mankind or  of their  from  society that  instead into  gains to  a result  to  might be  social benefits, the  come  cultural benefits  or mankind are  w i l l  is  no  left  might  uninhibited  s h o u l d be  the  case  13  as  far  as  the  tremendously tion,  with  lated  to  this  to  to  the  there  time,  is  The  recently  is  concerned:  enforce  in  been  resources  being  argued t h a t  doubt  the  that  it  is  paternalistic  prohibition against  outweighs  l i t t l e  and energy  benefits  society  difficulty. has  of  effectively  legislation far  me t h a t  money,  cost  And i t  anti-drug  source  difficult  the  i n point.  to  second  cost  these  corre-  is  of  a  case  enforcing  supposed b e n e f i t s .  in  It  and s i m i l a r  so  legisla-  directly  alcohol  the  just  seems  cases  consumed c o u l d be much more p r o f i t a b l y  the directed  elsewhere. The has  of  follow  likely  the  the in  state  or church laying day  and t h e  when a p i e c e  life.  directed tural  elsewhere?  are  The  must be  we  answers  i n determining whether  fied  on u t i l i t a r i a n  don't  think  as t h e the  down  in  possible  rules  are  energy  questions  a piece  that  negative one  is  endeavors  w i l l  stagnate.  the  of  being costs  be more  n a r r o w m i n d e d way  these  or not  the  scientific  what  could the  to  non-paternalism  legislation is  asked:  our  of  strict  and  a whole,  of paternalistic  part  As f a r  as  such l e g i s l a t i o n ?  progress?  practice  Artistic  culture  following questions enforcing  of the  p l a u s i b i l i t y when one c o n s i d e r s  day t o  suffer,  So,  of  suggested benefit  considerable  results to  f i r s t  w i l l  proposed to  society  profitably  inhibiting play  a  cul-  large  legislation is  justi-  grounds. interpersonal  sort  above c o n s i d e r a t i o n s  from such paternalism  there  just  of w i l l  won't  be  paternalism play the  any  is  concerned,  significant  possible  harmful  I  role;  Ik  consequences Even i f be  on t h e  sider  to  society  given the  side  the  the  actions  l i t i e s .  is  l a t i o n which  of  is  is  engaged source  Such  i n by of  the  there  is  being for  in  able  not  to  Finally,  open the  grounds  a  so i t  other  result  the  case  against  in  reasoning,  think  resort.  It  lying:  is  say,  then  justify  should point o n l y when  out  of the  prenumber  carefully  "He do  only  being The  interfered  so,"  where  realized  cases.  This  into  account  negative  one may  not  being  results  have  as of  a good  particular  is  not  case  case  i t .  that  argument,  very  a large  or hasn't two  legis-  a danger.  one t a k e s  circumstances  own w o u l d  be  reason:  the  u t i -  disutility.  example but  and c o n s i d e r s  what people  I  when  the  system i s  door to  w i l l  the  other  paternalistic  o k a y f o r me t o  between  con-  for  paternalism i s  calculations  to  to  outweigh  overall  w i l l  following one's  even though the  I  must be  difference  others  believe  observer  necessary  relevant  s t i l l  u t i l i t i e s have not been  e v e n when t h e  an  is  legal  that  their  lying  a last  might  the  danger  when c o n s i d e r e d on t h e i r  be  since  it  seem  a precedent  d i s u t i l i t i e s might  a measure  is  u t i l i t i e s  one h a s  setting  i n d i v i d u a l precedent  p o s s i b i l i t y of  careful  of  a private  made t h e  analogous t o the  the  some p o s s i b i l i t y t h a t  hasn't  that  results  f o r which the  the  interference,  and w h i c h would i n f a c t  on p a t e r n a l i s t i c he  considerations  being considered,  other measures  There  where  whole.  a p a r t i c u l a r p r o b l e m when  oriented.  calculated  a  of p a t e r n a l i s t i c  paternalistic  cedent  above  possible negative  This  as  paternalism w i l l exhortation,  or  always  pleas  15  have f a i l e d that  to  change  one w i l l b e  doing  something which  so the  over-all  successfully  is  none  do  so.  he  or  favour We  ought  in  considerations 1.  the to  2.  not  evil  not  someone  a)  a person i s  he  else  more  than  interested  has more  in  knowledge  circumstances than c)  his  anyone  l e g i s l a t i o n , being based cannot  take  cases;  what u t i l i -  choice.  on  utilitarian  intervention: does  not  in  his  what  is  reasons: assessment  w i l l be  his  since  feelings  he  of is  and  else; on g e n e r a l  into consideration the  of p a r t i c u l a r  has  doesn't  own w e l l - b e i n g ; of  been  want  benefits;  following  others  has  about  only  do s o m e t h i n g one  careful  does;  assuming the  u s u a l l y be mistaken about f o r the  because  when one  based  in paternalistic  from  t h a n when he  a person  following reasons  outweigh the  interests  more  with  him  true  when someone  such circumstances,  engaging  for  b)  the  w i l l  is  w i l l be times  i n debate  interest  paternalism  p a t e r n a l i s m would be the  often  other people  his  there  of being forced to  do w i l l  This  greater  their prevent  o t h e r t h a n he p l a n n e d ,  In  summary,  for  in  coercion to  d i s u t i l i t i e s that  engage  do.  is  interest.  always be  do  interference,  have,  his  Of c o u r s e  opportunity to  ties  of the  u t i l i t y w i l l  have the ought  against  persuaded t o  forced to  mind about what  justified in turning to  persuasion carries  been  someone's  presumptions circumstances  good  16  there  3.  is  the  p o s s i b i l i t y of  deliberative the  4.  cost  to  society w i l l  people  to  the  to  pursue  there  6.  reasoned  are  greater  I to  think  create  a  i t  insane, be  his  net  w i l l  subjects  to take  sane  mentally  I  the  sees a  in  w i l l , each  of  and person  f i t ;  precedent;  successful, w i l l  always have  the  these  c o n s i d e r a t i o n s work  paternalistic  form of But  deficient? In  their  from leaving  these  adults.  them.  what  Surely next  a  about  classes  measures)  children,  the  paternalism w i l l shall  of people  together  interference  legislative  section I  have developed f o r  often  examine  i n the  the  light  non-intervention i n  general.  2. needs  to  be  shown when i n t e r f e r i n g w i t h  on p a t e r n a l i s t i c  interference the  of  force.  agreed that  is  are  reasons which  What  that  be  he  i s  u t i l i t y than  when i t  and the  Section  results  i t  benefits  difficulties involved  setting  i f  f o r paternalism towards  of the  child  in  argument,  outweigh the  something against  own g o o d a s  dangers  j u s t i f i e d towards  case  do  the  strong presumption against  (particularly when t h e  to  often  to  innovation that  5.  development  capacities;  such i n t e r v e n t i o n due forcing  i n h i b i t i n g the  are  grounds i s  inapplicable  utilities  they  refer  that  given the to  are  some  of  nature  slight  the of  the  actions  reasons the  case  and c o u l d be  of  for  non-  and/or  f a i r l y  a  17  easily  overridden  usually not  true  being  while  t h e n we  a general  there I  is  think  and a d u l t s former  one  the  latter  interest.  If be  in  left of  on u t i l i t a r i a n  most  beneficial.  their  lack  their  inability  of  is  to  experience,  their  their  perceive  actions  adults  take  more  else  this  is  not  true  i n  typically  as  interested  own.  And i f  their tively  lack  to  direct  unimportant  might be the  of  a  child protect  case f o r are  interference  case  of  light that  interested  in  their  likely  of  own a c t i o n s ,  legislation is  not  as  are  in and  usually  than  anyone are  they  are  legislators relaThere  responsible  necessary  only  would  conse-  is  expertise.  and thus  things  which  p r o b a b l y be  directly  and have t h e  do  the  it  well-being  greater  adults  best  Their parents  of paternalism  more  abilities  own w e l f a r e  child w i l l  the  c o u l d be  And a l t h o u g h  their  to  things  nature  children.  each  the  are  the  children's  of  is  cognitive  in their  children  considerably  do those  appreciate  concern with  form' of  to  children  j u s t i f i e d towards  what  they  there  adult.  between  such phenomena  instigators  arguing  to  an  is  for  towards  is  wrong  undeveloped  in their  i n the  of  interest  c h i l d from his  i n the  as  inaction).  the  the  b o t h more  the  or  (or  that  are  own d e v i c e s  explanation  subject  often  this  a reason  differences  harm, -o r n e g l e c t  The  to  grounds  If  paternalism  children  judgments  their  true  in their  against  important  that  their  great  prove  of  interference.  p r e s u m p t i o n when t h e  of the  adults  quences  have  of  w h i c h makes p a t e r n a l i s m more  than  w i l l  utilities  presumption  this  often than  that  by the  for  competence  paternalistic unnecessary,  but  18  is  more  ents. tect  likely to However,  the  in  there  is  (e.g.  made.  It  might  would be  from doing i f  i t  Another i n by  w i l l  no c o s t  be  interference.  the  And o f  d i r e c t e d towards  l o w as  most  adults  of  the  the tive  the  attend  responsible the  relative weakness  those  is  i n  of  teachers, school,  cost  to  of  is  certain  e.g.  in  such  is  not  be  whom t h e  a precedent is  is  be  be  older  either  mem-  legislation is less  dangerous since  or  because  or  don't  due p a r t l y  and p a r t l y  by  requiring  interfere, low  of  relatively  handled  laws  case,  quite  an a d u l t ,  there  legislation  parents,  the  situations  this  drinking alcohol,  a position to s t i l l  children  instances  likely to  those  things  always  of  of  such l e g i s l a t i o n w i l l  others;  could  legislation.  almost  majority  either  of  their  Because  s t i l l  pro-  objection  to prevent  great  par-  classified  i n which p a t e r n a l i s t i c cost  or  a c h i l d t h a n when i t  are  paternalism is  children,  towards  setting  there  to  home b e c a u s e  from p a t e r n a l i s t i c  the  society w i l l  those  that  Where t h i s  of  serves  such an  prohibiting their  aren't  infrequency  where  or guardians.  cases  enforcing  adults  Furthermore, subject  society  sexual relations.  wish to,  that  children the  family,  children to having  is  go)  from h i s  powerless  for help  from concerned  o f w h i c h would be  child  to  comes  legislation that  true  responsible for the  of the  a  a c h i l d ' s parents to  of  relatively  fact  when i t  some  want  a l s o be  were not  relevant  engaged  bers  parents removing  which parents  the  a class  e v e n when he d o e s n ' t  not be  is  error than  c h i l d from h i s  as p a t e r n a l i s t i c abuse  be  to  the  to  rela-  directed. when  f o r the  the  reasons  19  outlined  above,  when one  ought not  towards adults  since  to  people  between  might p l a y  the  less  danger  of  do  so.  And i t  seems  are  used as  two  there  are  two  an important p a r t  a child's  action.  development  of  The  deliberative  of  of  the  results  decided  upon and t h e  The  other  forced to which not  is  to  do I  think  with the  outweigh the want t o  it  Unless  that It  one's  of  against  for  the  be  left having  the one's  a  child's  do? this  It is  his  i f  one  is  into  follows  a play-off to  act  to  are  not  i n the  This is  a policy  nature  being forced  a  of  although there  interference  with  a  child w i l l  be  w i l l  has  being  consideration or  grounds.  into w i l l  doing be  one  be  something  times cannot  j u s t i f i e d on u t i l i t a r i a n  that  he  non-interference  consideration,  clear  severity  deciding whether  from  there  the  of  experience.  on p a t e r n a l i s t i c  but  interfere  manner  by  is  which  inhibiting  between  him l e a r n  will.  often w i l l , taken  or not  objectionable  actions  of  relevant  they  p o s s i b i l i t y of  c h i l d which would r e s u l t annoyance  a  non-interference  i g n o r e d when an a d u l t  interference  should be  ernalistic  benefits  often  he d o e s n ' t  sure  child being  something  harm t o  won't.  w i l l  is  towards  is.  skills  consideration is  interfere  Does t h e really  the  i s  there  even i f  deciding whether  f i r s t  Obviously there  i t  paternalism  for paternalism  people,  reasons  in  interference.  of  children  unlikely that  recognize that  classes  p r e c i s e l y what  interfering with  a precedent  willing to  these  articulate  Nonetheless,  with  to  is  c h i l d r e n would be  difference able  there  times  when be  grounds. when  u n j u s t i f i e d on  the  pat-  20  grounds  of  ference  because  so great  as  This and f o r or  utility,  there  the  also  similar  people w i l l  true  of  whose  This  capacities  ment  as  does  not  some  reasons.  often  is  not are  to whether  If  a l t h o u g h one  larly  when t h e  true  not  cies  and those  who d o n o t .  harm w i l l  ious  areas  w i l l  of  of the  his  course  his  aren't,  personal  to  l i f e  It  be  c o n s i d e r a t i o n s we u t i l i t y w i l l  impaired  while  correct do  suffer  might be t h e  in  case that  outside  cause  have t o  on the  worry  side  particuwho  of  about  are  deficien-  him  a some varIt  likelihood  disutilities  s m a l l compared t o  one  capaci-  control  harm and t h e  from non-interference.  usually be  And  interference.  Even the  judg-  allowing  experience to  of the  relatively  really  someone  his  those  from mental  of  these  something.  things which w i l l  experience.  result  side  First,  own g o o d ,  not  cognitive  on t h e  following.  b o r d e r l i n e between  necessary  nearly  deficient,  inhibiting deliberative  severity  don't  not  and m e n t a l l y  o f t e n be  who  inter-  adult.  their  himself without  society w i l l  are  such a p o s s i b i l i t y i n mind,  on t h e  depend on the  so  p r o b a b l y be  ought  about  him the  harm w h i c h would  precedent;  or  some o f t h e  give  for  doing  severely  of the  or those  learning through the  cost  these  of  is  ought  s h o u l d keep  who  personal  has  u t i l i t y w i l l  worry  and t h o s e  an  insane  impaired w i l l  a person  do  is  the  because  person f a l l s  case t o  of  know what  sane  borderline  strong presumption against  someone  then  u s u a l l y have t o  ties,  a  proposed subject  emotional capacities  interference.  not  p o s s i b l e d i s u t i l i t i e s of  when t h e  is  is  the  of  potential  Because  of  setting  a  interference  within  21  that  class  those  anyway;  with  s t i l l  subject  unlikely that  p e o p l e whose  have t o  take  w i l l  into  disutility  on i t s  often  u t i l i t y  interference.  not  of  Section  this  question  as  section I  relation to  justified,  ought  the  might i t  second I  sible,  not  be  reasons,  interference  t o be  or not  first at  fact  construct  engaged  required  in  a moving v e h i c l e .  to  impaired.  pater-  do  of  disutilities for his  will.  enough t o as  for We  with  But  the  this  override  the  children,there  on u t i l i t a r i a n  shall  argue  glance  grounds.  utility,  would  be  relation  empirically  paternalistic  I  every  so o f t e n  law that  they  would l i k e t o  as t o  to  plau-  interference  how a  utilitarian  in this  might  instance,  i t  i t  suggest  to  For  not  seat b e l t s  reasons  i t  or  their  Because v a r i o u s case  whether  fasten  c u l a t i o n might go.  interference.  is  In  arises.  utility,  interference  unjustified.  believe  of  the  i n .  of people by  have much w e i g h t  on grounds  appear that  of  i n which  paternalistically  that  p r o b a b l y be  on grounds  circumstances  interfere  a case which I  question arises  be  I  f i r s t  would i n  and i n which  The  favor  a precedent  not  great  s h a l l c o n s i d e r two  to whether  although i t  the  are  as  towards  3  In  In  used  something against  For these  a presumption against  paternalism  consideration the  do  own w i l l  be  capacities  being forced to  is  of  is  impaired capacities  nalism towards course  and i t  can  for  should while  non-interference  appear clearly  that  u t i l i t y  demonstrated  calf a i l  would that  22  fastening the  one's  interference  people  realize  seat b e l t they of  seat b e l t  but  can't  not  they  comes  that f a i l  come t o  doing  so;  grips  that  the  know i s  than  on t h e  their  w i l l but  be  no  i n the  or  is  taken,  it  c o u l d be  would be Finally ten  one's  the  fact  result that  unfastened  there  is  viz:  the  to of  ensure  cars  of  the  that  So  the  could t i p  a precedent.  or  to  perhaps  bother  one  with  could  argue  to  society  likely  that  i s ,  routine  already  of  checks,  of which Or  note  perhaps  were  left  of  having  doing  o f t e n be in  in favor  the balance  there  unfastened. to  so,  of the  of  fas-  given  avoided  spite  there  obeyed  such a way t h a t  belts  out-  that  legislation is  But  out  reasons:  they  benefits  fastened.  their  do what  annoyance  can  most  to  or  that  consequences  accordingly.  seat  seem t o b e b a l a n c i n g  setting  having  something  out  and death  seat b e l t  the  fact  fasten  w i l l ;  assuming,  designed i n  i f  the  speeders,  would outweigh the injuries  cost  fact  a number o f  result.  would be  be  noise  consideration which danger  of  on not  that  ticketing  seem l i k e l y  one's  u t i l i t i e s a  possible  seat b e l t s  that  serious  of having  the  not  seat belt that  the  or whatever passed  required  does  emotionally with from weakness  In  to  of  such l e g i s l a t i o n ,  an o b j e c t i o n a b l e it  self-interest  Nor w i l l the  the  irrelevant.  simply forcing people  course  and f i n e s  of  good which might  special effort  rather  fastened  of  out  is  and t h u s  any  interest.  weigh the benefits  interest  a higher value  legislation is in  one's  accordingly for  suffer  irrationally place  seat b e l t s  ought  act  they  in  from l e g i s l a t o r s  they to  is  as  the  a fact  interference, other  As noted e a r l i e r  this  way, is  a  23  a p a r t i c u l a r danger i n the realm of l e g i s l a t i o n because the l e g a l system i s precedent oriented.  Because of the high p r o b a b i l i t y of  undesirable results of a great deal of p a t e r n a l i s t i c l e g i s l a t i o n f o r the reasons already given i n Section 1, I think the danger of setting a precedent i s great enough to constitute a f a i r l y conclusive reason against a law requiring the fastening of seat b e l t s . The following case i s one i n which on grounds of u t i l i t y i t would probably be concluded that one ought to engage i n p a t e r n a l i s t i c interference.  Say a woman's husband has had i n the past a severe  drinking problem.  I t damaged h i s health, jeopardized h i s job, and  made him f o u l tempered and hard t o l i v e with.  He went to Alcoholics  Anonymous meetings and managed t o stay o f f alcohol f o r a number of years, but due to a p a r t i c u l a r l y s t r e s s f u l time, has decided that he r e a l l y needs a drink i n order t o get through.  His wife knows from  past experience that i f he has one drink he w i l l again soon be s u f f e r ing  from alcoholism.  So she decides t o threaten to leave him i f he  takes even a single drink.  Her husband believes she means what she  says, and i n spite of great reluctance decides not to indulge. such interference j u s t i f i e d on u t i l i t a r i a n grounds or not?  Was  I t seems  to me that the only considerations that have any force are the benef i t s of the interference and the objectionable nature of h i s being forced t o do something against h i s w i l l .  Surely i t i s obvious that  i n t h i s case the benefits w i l l f a r outweigh any d i s u t i l i t i e s a r i s i n g from h i s being coerced into not doing something he wants t o do.  This  means that interference would be justified on utilitarian grounds. In summary, I have argued that because of a number of considerations paternalism will usually result i n greater disutilities than utilities, particularly when i t is to take the form of legislation, and that this creates a general presumption against interference on utilitarian grounds, but that there will be some circumstances in which the reverse is true, when on utilitarian grounds interference would be justified.  25  Footnotes  for  Chapter  1. John Stuart M i l l , U t i l i t a r i a n i s m . Government. E v e r y m a n ' s L i b r a r y (New Y o r k : 2.  Mill,  p.  133.  3.  Mill,  p.  133.  4.  Mill,  p.  133.  5.  Mill,  p.  121.  1  Liberty Dutton,  and  Representative p. 133.  1910),  26  Chapter 2 Some Non-utilitarian Theories I am concerned i n this chapter with the extant non-utilitarian theories on the justification of paternalism. I offer critique and criticism of the positions taken by Rawls, Dworkin, Donaldson,3 1  2  and Brown.* Rawls offers three principles of paternalism which he thinks are the ones that "parties would acknowledge i n the original position to protect themselves against the weakness and infirmities of their reason and w i l l i n society."-' A l l three principles are necessary conditions for paternalistic interference, and are jointly s u f f i cient, so only i f a l l the principles are f u l f i l l e d w i l l paternalism be justified. 1.  They read as follows:  paternalistic intervention must be justified by evidenced failure or absence of reason and w i l l ;  2.  the intervention must be guided by what i s known about the subject's more permanent aims and preferences. We may know about these through familiarity with the particular person i n question.  But i f we lack any detailed kind of informa-  tion we w i l l know that he i s probably interested i n primary goods because these are things that most people would want no matter what else they want, e.g. health, happiness, nourishment, sufficient wealth, etc. Acting i n accordance with the permanent aims and preferences or the primary goods gives the 3rd condition the best chance of being f u l f i l l e d .  27  the  3.  paternalistic  would approve  act  must be  upon t h e  something of which  recovery  or development  the  subject  of his  rational  powers. These  principles  one d o e s n ' t tion.  accept  There  are,  have,  the  I  think,  intuitive  plausibility,  t h e o r e t i c a l background of  however,  certain  the  even  original  d i f f i c u l t i e s which  I  wish  i f  posito  point  out. First,  there  non-existence ference, isfy to  someone  ability bute  first  to  act  some a m b i g u i t y  r a t i o n a l powers  or whether  that  say  of  is  simply not  condition. acted  never  do  so t o  while  denying that  animals  to  —  isn't  above,  Rawls wants the  necessary  which,  not  one's  is  has  not  given the  have  Rawls wants  in  that  the  at  so.  non-existence  of  this  of the  against  d i s t i n c t i o n drawn could also  above,  our  satisfy the  know w h i c h p o s s i b l e i n t e r p r e t a t i o n  order to  determine  how much p a t e r n a l i s t i c  we  powers,  i t  seems,  conditions  he  t o be also  a  says,  irrationathat  f i r s t of  a t t r i -  while  own  means  the  w h y we  r a t i o n a l powers But  sat-  that  has  rational  interference.  a protection  i s  he  times,  Given  wording  respect  that  This  certain  inter-  one has w o u l d  this  human w i t h  from the  the  condition for  acknowledge  such powers.  clear  e x i s t e n t powers  important to  powers  done  some p e o p l e  p r i n c i p l e s are  l i t y . .."^  It  entirely  Rawls wants  a necessary  to  condition for paternalistic  "Paternalistic  using  is  we c r e d i t  animals  whether  should be noted i n  but  although i t that  t o be  irrationally  irrational behavior  to  using the  It  rationally,  as  his  simply  condition. principle  inter-  28  ference would be j u s t i f i e d . The second d i f f i c u l t y i s t h a t the p r i n c i p l e s don't seem t o take account o f those people who s u f f e r from severe impairment o f t h e i r r a t i o n a l c a p a c i t i e s and who w i l l never recover or develop them the permanently insane o r mentally retarded.  ~  Because they won't ever  have these a b i l i t i e s i t seems reasonable t o suppose t h a t they w i l l never consent t o t h e i r p a t e r n a l i s t i c treatment, l e a v i n g the t h i r d cond i t i o n u n f u l f i l l e d . But since i t i s a necessary condition fbr j u s t i f i e d paternalism, such i n t e r f e r e n c e won't be j u s t i f i e d without i t s fulfillment.  This leaves us i n the absurd p o s i t i o n of paternalism  not being j u s t i f i e d f o r those classes of people towards whom i t seems i n t u i t i v e l y t o be most obviously j u s t i f i e d . We might t r y t o a l l e v i a t e t h i s problem by reading the t h i r d c o n d i t i o n as a hypothetical ~  perhaps i t i s even meant t o be read as such:  the i n t e r -  ference must be something of which the subject of the paternalism would approve i f he develops o r recovers h i s r a t i o n a l powers.  This  c e r t a i n l y takes care of the permanently insane and mentally retarded, but such a reading seems t o leave the way open f o r extending paternalism w e l l beyond what most of us would be happy w i t h .  I t i s not  p o s s i b l e f o r someone t o argue t h a t none of us ever develop our r a t i o n a l powers t o the capacity of which they are capable, but i f we ever d i d we would approve of a l l kinds of p a t e r n a l i s t i c treatment which we wouldn't i n our present s t a t e .  The danger i s the same  whether Rawls t h i n k s i r r a t i o n a l i t y and/or the non-existence of  29  rational powers f u l f i l l s the f i r s t condition.  In the f i r s t case i t  could be argued that we would approve i f the existence of our f u l l rational powers were ever realized; i n the second case, that we would approve i f we ever came to view the relevant situation rationally, i.e. used the powers available.  Of course i t i s possible to stipulate  the level of development, or the severity of the irrationality and to make this level low enough that there seems l i t t l e threat of too much paternalism.  But this requires theoretical work which we don't find  in Rawls. Finally, there i s a problem with the f i r s t condition — must be an evidenced absence or failure of reason or w i l l .  there This seems  intuitively to be a reasonable restriction, but I think we'll find that there are some situations i n which i t need not be f u l f i l l e d i n order for paternalism to be justified.  For instance, to use an  example from M i l l , i f someone i s about to walk across a bridge which i s , unknown to him, on the verge of collapse, we should take whatever means necessary to stop him from doing so, provided we haven't the time to warn him of the danger.  There need be no absence or failure  of reason i n this case to justify such intervention, but merely ignorance and insufficient time to remedy i t .  M i l l denies that this i s a  case of paternalistic intervention on the grounds that "liberty consists i n doing what one desires, and he does not desire to f a l l into the  river."^  his freedom.  So, the argument concludes, we have not interfered with But this seems to ignore the fact that at the time of  30  intervention, the subject does want to cross the bridge, and we are stopping him from attempting to satisfy that want. Of course, one can point out that i f we only had time to warn him of the danger, he would probably have decided not to cross the bridge; or that after explaining why we had grabbed him as he started across, he would probably thank us f o r saving his l i f e .  But these arguments don't  show that our interference wasn't paternalistic; they are rather, possible j u s t i f i c a t i o n s f o r such interference. At any rate, i f we deny that the interference i n the crossingthe-bridge example i s paternalistic on the grounds that the subject does not desire the consequences, we have t o deny that a l l sorts of interference with people's actions would be paternalistic on the same grounds. For example, i t could be argued that children don't r e a l l y want to die of malnutrition so making them eat t h e i r vegetables i s not paternalistic; or that people don't r e a l l y want to become heroin addicts and so denying them access to heroin i s not paternal i s t i c ; that people don't r e a l l y want to die of lung cancer so making the sale of cigarettes i l l e g a l i s not paternalistic, etc.  And i f  these measures are not paternalistic, then of course they don't require the j u s t i f i c a t i o n that they otherwise would. a consequence none of us are w i l l i n g to accept.  This i s , I think  But, of course, the  important point i s that people do want to smoke, take heroin, and not eat their vegetables; such desires might be i r r a t i o n a l given that most people also do not want to get lung cancer, become addicts,  31  or be unhealthy. But that does not change the fact that they have the desires, and that the actions of parents  or legislative measures are  interfering with them. I shall not commit myself at this point on whether or not paternalism i n such cases as mentioned above i s or would be justified, but i t seems quite clear that stopping someone from attempting to walk across a bridge which i s about to collapse Is justifiable interference, and any theory with a hope of being correct must allow for such cases of paternalistic intervention.  But this i s just what  Rawls* f i r s t condition denies, since i t requires that there be an evidenced absence of reason or w i l l .  For this reason i t cannot be a  necessary condition for the justification of paternalistic intervention. Dworkin delimits the area of justifiable paternalism basically by the notion of consent.  This i s a similar condition to the third  one of Rawls but whereas Rawls requires the actual consent of the subject of paternalistic treatment, Dworkin rests his case on the hypothetical consent, not of any particular subject of paternalism, but of rational people.  He attempts to produce "certain kinds of con-  ditions which make i t plausible to suppose that rational men could reach agreement to limit their liberty even when other men's interests are not affected."^ which  The conditions, one or a combination of  Dworkin suggests as making i t l i k e l y that rational people  would agree to paternalistic measures, are as follows:  32  1.  when there are certain 'goods' which could be promoted bycertain measures, even i f they are not recognized by the subjects of those measures as being 'goods' at the time. He suggests health and education as being such goods, and compulsory attendance at educational institutes as the paternalistic measure promoting the l a t t e r .  He makes no  suggestion as to how the former might be promoted. 2.  where someone i s making an i r r a t i o n a l weighting of values. This might be the case where one continues to smoke cigarettes i n the l i g h t of the dangers of doing so, or when one refuses to fasten his seat belt.  Of course there may be  other explanations of such behavior, such as #3 below. I t i s implied by Dworkin that laws banning the sale of cigarettes and requiring the fastening of seat belts would probably be acceptable to rational persons as paternalistic measures to prevent the harm one might experience from having such i r r a t i o n a l values. 3.  where someone f a i l s to act i n accordance with his actual preferences and desires.  Dworkin thinks paternalistic mea-  sures i n such circumstances would be even more clearly acceptable than i n the above condition ( 2 ) , since "we are r e a l l y not — by assumption ~  imposing a good on another  person."9  k.  where the decision i s irreversable, e.g. suicide, or where  33  the act w i l l result i n some changes which w i l l make i t impossible t o make reasoned choices i n the future, e.g. taking c e r t a i n drugs.  He thinks r a t i o n a l people would  agree t o a cooling o f f period with respect t o suicide, and ( i t i s implied) that they would agree t o the ban of c e r t a i n drugs. 5.  where decisions are made under extreme psychological and s o c i o l o g i c a l pressures.  6.  The example he gives i s suicide.  where someone i s s u f f e r i n g from a temporary state, such as great f e a r or depression, that of well-informed  7.  i s i n i m i c a l t o the making  and r a t i o n a l decisions.  where the dangers i n doing o r not doing something are e i t h e r not s u f f i c i e n t l y understood or f u l l y appreciated by the persons involved, where there are severe and undesirable e f f e c t s and where the a c t i v i t y being prevented  or required i s not  one which a f f e c t s one's conception o f the person he i s , nor plays a very important  role i n h i s l i f e .  Fastening one's  seat b e l t , he suggests, could be a required a c t i v i t y of t h i s kind. 8.  where the measures preserve and enhance f o r the i n d i v i d u a l his a b i l i t y t o r a t i o n a l l y consider and carry out h i s own decisions.  I t does at l e a s t seem p l a u s i b l e that f u l l y r a t i o n a l i n d i v i d u a l s  34  would agree which  at  that  least  some o f  or not  they  whether  he  neglected  himself there  has is  certainly  great  be  measures  that  agreed t o .  For  requiring the the to  sale  to,  headed, what  f u l l y  least  morally  to  to  since what  i t  be  isn't  of  seat  or  other  be  any  Nor i s  i t  Why  belts  measures  obvious t o i f  irrational  I hope  me.  i t  i t  would have  saved time  stated  in  such terms  i n the  I think this  be  rational.  place,  think  obvious  principle looks  would  paternalism fuzzy-  is  with  their  doesn't  appear  consideration, is  But  his  rather  Why  laws  banning  concerned  this  answer  i f  fact  imperfect,  answer t o  and e n e r g y  f i r s t  schema  speci-  were  t o what  state,  the  more  r a t i o n a l people  doesn't warrant  Perhaps  i t  acceptable?  the  I were f u l l y  answer  schema.  or those  s h o u l d I i n my r a t h e r  sometimes  the  really  even i f  f u l l y  or  Dworkin  agreed t o would i n  But  but  individuals  whether  desirable?  drugs?  as  agreement  rational  clear  under  would f i n d  kind of  d e c i d i n g what  ones  suggests,  question,  considered relevant  relevant?  to  Dworkin  which they  are  acceptable,  would r a t i o n a l persons  so obvious t h a t  I would agree  agreement  in  r a t i o n a l people might think  agreement others  instance,  should that  at  as  above  would be  those  Dworkin t h i n k s might be  justified?  and  a l l  others  course  what p a t e r n a l i s t i c  actually  to  l i s t  accept.")^  fastening  why  measures  an open and debatable  ("Of  cigarettes  everyone  agree is  of  to  difficulties in  would or would not fic  would agree  recognizes.  are  conditions listed  some p a t e r n a l i s t i c  whether  amenable,  the  because  that  i f  is  that  principle  had  is  the been  than bringing i n  the  as  i t  c o m p e l l i n g as  35  does because I  it  would do i f  that's  true.  to  in  act  agree  to  forced,  dom o f  assumed t h a t  were f u l l y  But  it  is  accordance i f  I  what  rational  I  is  is  relevance  The  fact  i f  I  or consent  is  I  to  that  of the  that  I  but  self.  there  are  Interestingly,  to  d o n ' t want  for  would so  liberty  and  free-  would  agree  I  irrelevant.  with  respect  Of  would agree  to  i f  I  were  t o what  have been w i s e  the  since  i t  involves  to  c h i l d r e n Dworkin does ought t o be done t o  child w i l l  restrictions.  himself  He s a y s ,  correctness  of his parents'  requirement  of  fully we agreeinter-  not  appeal  or for  i s ,  c h i l -  recog-  however,  such p a r e n t a l power coming t o  see  an which  the  interventions."*1  actual  s e e m s t o me t o b e  of  "There  child eventually  notion of the  are  such  subsequently  is  provided by the  actual  course  would.  r a t i o n a l people would agree rather  my  p a t e r n a l i s t i c measures  exercise  consent,  others  of  supposition that  i m p o r t a n t m o r a l l i m i t a t i o n on the  The  think  t o be  one, w o u l d n o t c o n s e n t t o  p e o p l e who  what  agreement  of  is  I  s u p p o s i n g someone c o u l d have s u c h i n f o r m a t i o n , t h e n  I,  nize  I  do  forced by  restrictions I  were f u l l y r a t i o n a l  accordance w i t h what  o f my a c t u a l  but  t o be  rights  suffer whatever  to  most p a r t  hypothetical  certain  ment  dren,  want  And i f  situation,  t o what  I  paternalistic  have a t o t a l l y d i f f e r e n t  ference,  a u t o m a t i c a l l y want And f o r the  infringed; the  such i n t e r v e n t i o n i f  rational,  not true  the  to  in  rational.  with the  a c t i o n would be  seen t o be  w i l l  were f u l l y r a t i o n a l .  self?  agree  I  consent,  rather  than  hypothetical  a much more p r o m i s i n g l i n e  in  determining  36  when and why paternalism i s j u s t i f i e d , a principle which I develop i n the t h i r d chapter of t h i s paper.  And I think many of the conditions  that Dworkin submits as those which rational people would agree t o are among those under which many people would i n fact give t h e i r actual consent t o interference, i f not before some act (or proposed act) at least afterwards.  I t i s f o r t h i s reason that I find Dworkin's  a r t i c l e of interest and importance. Donaldson  12  argues that paternalism i s prima facie wrong, but  that there are three circumstances i n which i t would be at least morally permissible: ( 1 ) when there has been an informal (or, I assume, formal) contract to interfere p a t e r n a l i s t i c a l l y under certain specified conditions; (2) when there i s an established social convention that paternalistic intervention w i l l be forthcoming under certain conditions; and (3) when the subject i s i r r a t i o n a l .  With  respect to the f i r s t condition, Donaldson has i n mind such things as someone asking a friend to intervene i f he t r i e s to k i l l himself while i n a depressed state. He makes t h i s 'informal contract* to protect himself against the undesirable consequences of contingent situations, such as depression.  There i s of course no reason why there couldn't  be formal contracts f o r the same kind of protection. This condition i s r e a l l y very much l i k e the notion of consent that we have already met i n Rawls and Dworkin.  However, Donaldson does not consider the  p o s s i b i l i t y of someone consenting t o paternalistic intervention after i t has been engaged i n .  The t h i r d condition i s supposed to cover such  37  people as children and the insane which makes me think that Donaldson really wants the concept of non-rational actions rather than irrational ones, since everyone acts irrationally at some time. then i t really should read: action.  If this i s true  when the subject i s incapable of rational  I t i s then, much like one of the two possible readings of  Rawls* f i r s t condition, requiring evidenced absence of failure of reason or w i l l , and suffers from some of the same d i f f i c u l t i e s . Donaldson's second condition — that there are social conventions of paternalistic interference which lead people to expect and, we can assume, want such interference i n the circumstances covered by the convention, thus making such Interference acceptable — i s new and in my opinion important.  The way i n which i t i s important w i l l be  made explicit i n Chapter 3. Brown i s concerned i n his paper "The Rights of Children"^ with determining why paternalism towards children i s morally  acceptable,  while such interference with a sane adult i s (he assumes) morally unacceptable. tence.  He suggests that the relevant difference i s incompe-  But since there i s no doubt that adults are often incompe-  tent to make wise decisions about certain things which affect their well-being where such incompetence would not give anyone the right to interfere with that decision, i t w i l l have to be a special kind of incompetence which only children suffer from.  Brown suggests that  i t i s immaturity, and that this i s something that children outgrow by some natural process.  I t i s different from the mere acquisition  38  of  skills  ties a  through learning,  (broadly  special  sary  case)  or  so i n  degree  every child w i l l  for  petence since  some d e g r e e  of  acceptable  reach  won't  be  the  it  that  acceptable. fere with  the  that  the  they  petence  which  are  where  i t  the  true  Brown t h i n k s and d e c i s i o n s  has  the  right  of the  not  to  special  a l l  affect  any  so.  other  his  decision, t o make  The  child  or  incompetences cases  they  where the  someone would  do n o t decision  suffering  adversely  have the of  a child  or  true  we  without  special  is  Brown would of  careful  from insanity  to  an insane  and  child  he  that  also this  is  there  is  decisions  where t h e i r  relevant  out  concerned  that the  incom-  child  agree that  with  good  point  a  decision,  is  inter-  own  matter),  decision since  make t h e  to  to  from  children  of  made b y  this  interference  their  with  right  where the  relevant  s t i l l  kind arising  for their  decisions  incom-  while  k i n d and degree He  can  paternalistically,  have t h e insane  then that  interference  conclusion  affect  right  is  i.e.  the  And no doubt  as w e l l .  this  decision for that  no p r o b l e m j u s t i f y i n g p a t e r n a l i s t i c a  the  neces-  incompetence,  of the  being  maturity  we  not  competence  insane  from a  that  (retardation  interfere  the  insanity.  affect  do  —  from t h e i r  own g o o d ( o r does  actually  does  to  opportuni-  of  adults  our p a t e r n a l i s t i c  suffering  arises  i n  kind of  incompetence  makes  actions  immaturity his  is  educational  stage  If  others  appropriate  Similarly  because  about  i t  for  of  intelligence  incompetence  i t  immaturity.—  that  of  making  maintaining  of  spite  t o make p a t e r n a l i s m i n a p p r o p r i a t e .  allow  has  speaking),  and  respective i n  such  decision.  person would not  be  But  39 adversely has so  the  affected by  right  to  do  as  such i n t e r f e r e n c e It  term:  is  c a s e when t h e  immaturity  he  sees f i t  would be  important  abilities  his  to  note  when,  a l t h o u g h a person has  them,  perhaps because  be  bothered,  that  or  is  he  generally  tant  argument  for  Brown's  tence  and not  etc.)  of  such I  i l l in  have three  his  for  make that  it  desire, has  dispositional  employed.  This  the  are  necessary  is  (i.e. that  marks  —  i n t e r v e n t i o n from those  people who  are  to  could  course  is  enduring  those  want  someone who It  or  means  Of  is  impor-  incompe-  inappropriateness, off  the  upon  abilities)  decisions.  a relatively the  This  versa.  related  call  doesn't  etc.  or vice  is  present,  doesn't  necessary,  incompetent it  he  passion,  badly),  decisions  objections  according to his  advised. such  a  unwiseness,  liable not  to  liable  intervention.  follows: with  thought  (i.e.,  or actions  paternalistic  i s  abilities,  (i.e.  incompetence  decisions  justifiable to  the  'competence'  certain  and i n c o m p e t e n t  he  interference;  r e q u i r i n g them simply a r e n ' t  competent  incompetent w i l l  paternalistic  without being  hasn't  do something i n c o m p e t e n t l y incompetence  that  influenced by  someone who i s  without  respectively,  unjustified.  can be present  circumstances  or insanity,  a case.  interest  Brown,  own g o o d i f The  his  c h i l d does But  to  i f  not because  Brown's t h e s i s .  the  action  immaturity is not  have the  a child is of  of  his  about  The  f i r s t  a c h i l d can be responsible  right to to  immaturity,  is  as  interfered  for  it  being  freedom  of  action  do something c o u n t e r but  simply because  he  to  40  lacks  certain  different, from h i s  relevant  or even i n f e r i o r ,  immaturity,  circumstances give  anyone  least  i n the to  in  the  with  have the  his  theory  Secondly, tified  towards  us would expect of  such a case  foolish his  plans  of  interfere,  offers  no  rationale  Brown's theory i n  to  his  loses  these  Say  of the  his  loss  sea.  appropriate  I  of  and I'm for  find  he  i t  this  justified.  he w i l l  and i s  and i s  ability.  coercion to  in  he c a n about Say  to  the  he  I  action  least  at  agree,  unjus-  t h i n k most  about  gets  abilities  no l o n g e r  to  see  But the  a decision  going to  such circumstances  stop him from carrying  quit  a friend out  a  over accurately  good at  and v a l u e s .  of  here  t o make  when he  particularly  is  at  dif-  right  am t h i n k i n g  regret  make  no  interference  I  the  is  so.  and i s  n o r m a l l y has  not  an unwise  gives  i n which  sure  future,  there  are  (at  Brown would  our doing  depressed  abilities;  think that  what  sure  is  These  action  t h i n k we w o u l d ,  continuing interests  usual perspecuity,  since  is  arising  but which would  makes p a t e r n a l i s t i c  as when a f r i e n d  reflect  I  not  s o why?  leading to  some c i r c u m s t a n c e s  a theory  which  and go t o the  to  adults  But  structure  reason  freedom of  a child,  action?  right  prospects  reflects  of  value  And i f  his  circumstances  child's  the  his  with  his  other  an a d u l t ,  assumptions).  and t h a t  depression.  d e p r e s s e d he with  adult the  find  interfere  d e c i s i o n w h i c h we f e e l  bout  assess  to  Brown's  of the  interfere  but  right  some  now i n t e r f e r e ?  k i n d between the  case  times,  c a n we  or because  or perhaps  i n w h i c h we m i g h t  according to  ference  information,  making  while future  which his  job  using  such an  idea  41  ought  to  be  j u s t i f i e d by  when p a t e r n a l i s t i c clear be  that  certified  degree with  of  an  the  as  The  the  degree  that  fact  and a  least of  that  does,  special  which they  to  kinds  incompetence,  some  But  I  Brown admits  knowledge t h a t  this  makes  the  sense  of  supposition either  distinctions  think  this the  insanity  is  that  he d o e s n ' t  d i s t i n c t i o n s we  i t  we m a k e .  is  or  false.  fact  I  a  interference  It  does  to I  special  objection accurately  pre-  kind  right and  suffered  suffer  kinds  upon,  of  but  Of c o u r s e , show t h e do f i n d i t  a theory  there  from,  which provides  grounds  ones  empirical he  does t h i n k  neither  empirical  do  i t  I  pre-  implausible,  in providing a rationale offer  inter-  seem  (even incompetent)  have the  But  justify  presupposition that  process,  draw.  could  and  empirical  which children  necessary  essential In  kind  incompetences  the  adults  he  a major  theory's  from the  i t  respect.  entail  p r e s u p p o s i t i o n depends  true  that  one w h i c h more  speculations.  some n a t u r a l  e m p i r i c a l knowledge  don't  do w i t h  incompetence  that  state  constitute  looking for  how p l a u s i b l e  of by  such a  and  want t o make  suffering from the  think,  different  kind of  grow out  of  denying c h i l d r e n rights  and I  not  I  show where  Brown's theory would not  reason f o r  certain  is  have the  is  not i n  and Brown's e m p i r i c a l  normal adults.  have?  acceptable.  to  Brown t h i n k s would j u s t i f y  o b j e c t i o n has  by  for  is  and e x p l a i n s o u r i n t u i t i o n s i n  suppositions at  so he  case c i t e d  theory,  My t h i r d  that  insane,  incompetence  in  reflects  interference  which purports  depressed person i s  adult.  ference to  the  a theory  i n the  for  third  the  chapter  42  which  does  find the kind  of  not need any  such e m p i r i c a l p r e s u p p o s i t i o n .  presupposition implausible is thing this  'immaturity'  f r o m s i m p l y l e a r n i n g how t o decision or act  a child,  might not  reaction  as  reclusive,  i s :  t o make —  which the  we  above  did  of  i t ;  as  they w i l l  judgments  ~  is  special  acquires  gives  a child or  not  a decision,  as  t o be  cannot  different,  to  is  For  unable t o  take  be what  of that  learn  is  one  to  approaches  the i n  a i s  illustrate  instance,  don't  we  but  decline rather  to  differently, experiences. inability sensible an  the  ability But  I  find  lack  of  is  judgment  in  deciding  because  a l l o w h i m t o make we  ours. with  for  are  matter,  they  i t  our interference that  adults  think  because from  make,  But  adulthood.  supposed t o  overall  no  immediate yet?  i t  of  whatever,  see  appropriate  and that  I  or  behave  facts  kind  sufficiently  my  something l i k e of  in  would  often  grown out  or even i n f e r i o r ,  i n f e r i o r values  I  I  what  can t h i n k  where  weighing  drugs that  justifies  I  reason  see  different  teenager,  exercise  Brown m a i n t a i n s ,  different,  or  as  fact,  have had the i t  which are  unconvincing.  In  immaturity,  naturally  is  inexperienced,  have t o  the  about  that  don't  some m i n i m u m a g e ,  do.  they  overall  just  a n a d u l t who h a d b e e n  a young  haven't  I  the w o r l d .  overly-protected,  that  ability  think  this  on i n  that  speculate  one  values  one  does  that  whether  I  My g o d ,  e x a m p l e s he  this  get  p r o b a b l y w i l l when t h e y  Brown  way  that  grow out  they  could be  a l s o make o r p r o p o s e t o  things  won't  least  he would u n d e r t a k e ,  unexposed,  doing  at  that  The  expect But,  the  his  of  course,  child,  something  such  since  many  43  adults  also  towards  suffer from,  them.  However,  values  are  of  d e c i s i o n s made  the  justified inferior precise  likely to  in  role  are  of  do t h i n k  change, as  a child,  such d e c i s i o n s  i t  suggested,  might be  blem here  is  from t h i s  fault  •out g r o w '  adults  this  take  I  trust  former.  demonstratively ones,  attitude,  T h i s means t h a t  the  With  i f  i n what I clear  point  pleasure  might be i t  that  is  or  constitutes  is is  these  don't  would  respect  to  the  to  true  in  result  do  act  i t  not  is  or  feel  the  the  take  our  inter-  drugs.  This,  The m a i n  more c h i l d r e n  true  that  some c h i l d r e n  have the  difference  adults  for  rationale  for  those  in  kind  don't  between  the  children  more h e a v i l y not  never  empirical  paternalism towards that  pro-  suffer  also  obvious  justi-  propensity  some  fairly  The  3.  that  are  feel  actions.  to be  immaturity. that  w h y we  justifies  to  some  w h e r e we  Chapter  which  regret  do w i t h  believe  that  child's  true  a l s o means  other  a child to  a  a  s t i l l  justify  some o t h e r  decide  as  foolish decisions  whether  and i t  And i t  find  they  would not permit  to  what  we  that  something t o  don't weigh present pleasures  we h a v e t o drugs  as  adults,  and c h i l d r e n t h a t  not  for  this  although i t  than  from i t .  claims.  but  that  is  fact  paternalism  a c h i l d i n circumstances  lured by present  fering with  the  justify  he w i l l  has  considerations  suggestion at  c h i l d r e n t o be  suffer  and t h a t  responsible  these  that  o f p a t e r n a l i s m w i l l b e made  A natural of  I  which would not  interfering with  values  fication  but  latter, who  than  future  a l l o w i n g them  to  of  we  so. example Brown g i v e s upon ~  deciding to  a decision  quit  school  and  44 go t o  sea —  over-all  i t  seems  judgment t h a t  a decision, that ception of the do,  and i s  uation. not in  in  His  the  ought  to  of  trast  to  tells  against  a  his  of  be  —  trust  the  make  an  this the  I  kinds  overall facts  of  learn  a l l .  judgment  that  the  things that process  requires child to  the  at  facts  of  of  is  the  but  seems  rather  And i f  i f  they  and  then be  lacking these  rather  It  others,  children,  s i t -  grounded  are.  growth.  per-  seamen  learned,  Brown g i v e s  a child to  acquire  exercise  lacks  times  ability to  make  then  are  one  some  the maintains  abilities,  ~  make  which  an e a r l y  overall  overall  such judgments because  in  I  expect  in in  or confact  Brown's  think  emergency  judgments, we  age,  Taking  babysit,  supposed  skills  judgment,  such an a b i l i t y .  certainly  are  particular  at  a 10-year o l d c h i l d b e i n g t r u s t e d t o least  narrow  reality  them sooner t h a n  examples  he  a  s e n s i b l e way,  about p a r t i c u l a r t h i n g s  view  has  such  paternalistically.  supposed i n a b i l i t y t o the  a  what  even those  think the of  he  judgment  in  an  a c h i l d make  Such i n a b i l i t i e s cannot  adults,  ability  let  touch with the  ascertain  interfered with  r e s p o n s i b i l i t y at  tions  in  quite  j u s t i f y i n g paternalism towards  illustrate  example  not  them a t  a n i n a b i l i t y t o make  a warped n o t i o n of what  t h r o u g h some n a t u r a l  same t i m e t h a t  acuteness  has  the  is  unwilling to  involved,  correctly  are  i t  i n a b i l i t y because  some p e o p l e w i l l  learn  not  us  this  inability to  Besides to  general  about  grounds f o r at  has  values  these  learned not  makes  i f  i n a b i l i t y t o weigh the  that  t h a n come  w i l l  he  inability to  likely  are  in  his  his  t o me t h a t  such  situa-  and t h a t him or  we  her  45  to  arrive  contrast  at to  decisions the  sary But  seems  rationale I  do t h i n k  area.  What i t  t h o s e we w o u l d m a k e .  drug-taking example,  a decision contrary It  similar to  to  to  the  me t h e n  w h e r e we  o n e we t h i n k  that  Is  expect  is  the  incompetence won't  concept  w i l l become  has  clear  the  in  child to  provide  the  make  next  neces-  interference.  some i m p o r t a n t w o r k t o in  is  wise.  and j u s t i f i c a t i o n f o r p a t e r n a l i s t i c that  the  This  chapter.  do  in  this  46  Footnotes  1. Harvard  pp.  f o rC h a p t e r 2  John Rawls, A Theory o f J u s t i c e (Cambridge, Massachusetts: U n i v e r s i t y P r e s s , 1971), s e e e s p e c i a l l y p p . 249 - 250.  2.  Gerald  3.  David Donaldson,  64 - 84.  Dworkin,  D . G... B r o w n ,  . 4.  Education.  "Paternalism",  "Fathers  "The  N o . 17 ( A p r i l  Rights  and S o n s " ,  Rawls,  p . 249.  6.  Rawls,  p . 250.  7.  M i l l ,  8.  D w o r k i n , p p . 77 - 78.  9.  D w o r k i n , p . 79.  10.  D w o r k i n , p . 78.  11.  D w o r k i n , p . 77.  12.  Donaldson.  13.  Brown.  152.  Vol.  unpublished  o f Children",  1971), p p . 8 - 2 0 .  5.  p.  The M o n i s t .  56 (1972),  paper.  TheJ o u r n a l o f  47 Chapter Development Bearing  i n mind the  which  I  shall  now a t t e m p t  Section  s u g g e s t e d means  to  develop  paternalistic subject  of  o r has  the  subject  form the  action,  paternalistic  there  not  does is  shows  I  why  i t s e l f  require  we a r e  someone's  to  the  right  difficulty in  to  reason to  required.  prima facie  does that  right  interference not  It to  is  those  perform that  arises.  constitute  for  a  any p a t e r n a l i s t i c  I  in  pro-  believe  actions  which  the problem  claim that  j u s t i f i c a t i o n of act  per-  justifying  no  such  the  of  sub-  interfer-  circumstances  justification.  determine  prima facie  kind of  prima facie  that  is  alone  fact  perform  j u s t i f i c a t i o n and t h e r e  paternalistic  and therefore  the  to  on  whether  paternalistic  has  welfare  have the  right  of  is  subject  justifying  sometimes i n t e r f e r e  i t  the  believe  raised,  that  justification is the  prima facie  not  —  further  any  theory which  one may  no p a r t i c u l a r  interference  a prima facie  If  objections  d i s t i n g u i s h e d on t h e b a s i s  the  any  does  paternalism  justified.  action with which  has  If  ence,  justifying  and t h e  an a l t e r n a t i v e  grounds can be  action.  ject's  2,  of  Theory-  1.  Two c l a s s e s  vides  an A l t e r n a t i v e  have c o n s i d e r e d i n Chapter  and when p a t e r n a l i s m i s  the  of  3  right  interference  when p a t e r n a l i s t i c is  with  following three  interference  j u s t i f i e d we m u s t a prima facie  conditions are  right the  f i r s t is  ones  with  determine  when  justified. under which  I a  48  prima facie right can be interfered with, at least when the subject belongs to the central core of right-holders.  ( I leave f o r the moment  the questions of what rights animals and mentally defectives have, i f any, and under what conditions they can be overridden.) Though I offer no defense of these conditions, I conjecture that any theory of rights with the l o g i c a l features we expect i t to have w i l l contain them. 1. when the interference with someone's prima facie right to do something i s t o protect someone else's overriding right; 2. when the possessor of the prima facie right alienates i t ; 3. when refraining from interference would result i n s u f f i ciently large t o t a l d i s u t i l i t i e s f o r other people. The f i r s t condition i s actually an analytic truth, but there are nevertheless theoretical problems with i t : what makes a right an overriding right?  How do we assess the relative importance of rights?  There are similar d i f f i c u l t i e s with 3: how large must the d i s u t i l i t i e s be i n order f o r interference with a right to be justifiable? There w i l l probably be a significant number of cases i n which i t w i l l be i n t u i t i v e l y obvious when one right overrides another, or when the d i s u t i l i t i e s are s u f f i c i e n t l y large t o override a right, but there w i l l be others i n which i t w i l l be d i f f i c u l t to decide what one ought to do. But even where i t i s obvious that a prima facie right ought to be overridden by either another right or by the d i s u t i l i t i e s of  49  non-interference, there remains the problem of providing a rationale for the judgments made i n t u i t i v e l y .  The solutions to these problems  belong to a theory of rights, and as such are too broad to be dealt with here. I t should be noted that I am assuming we are not being u t i l i tarian about these problems. cal problems i n either 1 or 3.  I f we were, there would be no theoretiAnd, I think 3 would be included i n  1 since a u t i l i t a r i a n would argue that i f the t o t a l d i s u t i l i t i e s of non-interference are greater than the d i s u t i l i t y of interference, then that gives others the (overriding) right to interfere with another's prima facie right.  I, f o r one, do not accept this analysis  of rights, although I do think (as stated i n 3) that ( s u f f i c i e n t l y ) large d i s u t i l i t i e s w i l l provide a j u s t i f i c a t i o n f o r interfering with someone's prima facie right.  I t r u s t i t i s clear that I am not quib-  bling with the claim that people have a prima facie right to be protected from large d i s u t i l i t i e s , but rather with the claim that the assignment of rights i s based solely on u t i l i t i e s . Of the three conditions under which prima facie rights can be interfered with, 2, alienation of a right, i s the only candidate f o r j u s t i f y i n g paternalism and i t i s , I shall argue, a successful one. Neither 1, an overriding right, nor 2, large d i s u t i l i t i e s for others, are relevant i n determining whether a paternalistic action i s j u s t i fied since we are by definition considering only interference f o r which the grounds are the subject's welfare.  50  The a l i e n a t i o n of one's r i g h t t o do a c e r t a i n thing can be effected i n e i t h e r of the following ways (there might be other ways of alienating a r i g h t , but they w i l l not be relevant to the question of paternalism): 1.  one can give h i s previous consent f o r someone's i n t e r f e r ence with h i s freedom of action under c e r t a i n specified circumstances;  2.  one can give his subsequent approval of the interference, t a c i t l y or e x p l i c i t l y ; that i s , one can subsequently consent to the interference.  Examples of 1 and 2 should make c l e a r what I have i n mind. sider the following.  Con-  A, knowing that once temptation presents i t s e l f  he i s l i k e l y to break his resolve not t o buy cigarettes, asks B t o prevent him from doing so before they enter a store.  I t would nor-  mally be impermissible f o r B t o i n t e r f e r e with A's action, but because A has given p r i o r permission f o r B to i n t e r f e r e i n those circumstances, B i s j u s t i f i e d i n doing so, regardless of B's protestations.  A has  alienated h i s r i g h t and thus r e l i e v e d B from h i s obligation not t o i n t e r f e r e ; i t i s because he has done so that B i s j u s t i f i e d i n h i s p a t e r n a l i s t i c action.  This i s a case of previous consent  p a t e r n a l i s t i c interference. following.  justifying  As f o r subsequent consent, consider the  A i s going t o commit suicide and B prevents him from  doing so; some time afterwards A e i t h e r e x p l i c i t l y thanks B f o r i n t e r f e r i n g , thus giving h i s consent f o r h i s doing so, or on the b a s i s of  51  observation s t i l l  be  B doesn't  —  alive,  interference. ference right  with  right  then  i t  to  is  Suppose  clear  important  action  someone  die  too  soon,  but  mation which would lead  is  logical  blunder,  otherwise the  give  i t .  any  question of whether  fied?  Surely  simply the  not;  lack  of  deciding whether offer the  previous  or  the  or would give i f  were not  such an  subject  subsequent his  give  of  act  of  i f  notion in there  he g e t s  give  gets  his  of these  his  is  consent;  justified.  he  that  had a  something t h a t  something which  i f  It  of  or  This f o r  the  is  act  or  relevant is  subject  to  justior  irrelevant the  give  piece  of  to  case  I of  either  his  tacitly,  information,  now b e l i e v e ) though t h a t  d i d have,  a  would  justification  must  important  (2) infor-  he  explicitly or  does n o t  piece  making  where  being  the  com-  relevant  (3)  morally  relevant  is  some  a logical error,  action,  he  that  a certain  interference  a paternalistic to  inter-  determining  are  situations morally  necessary  the  the  consent;  a piece  information are  making a l o g i c a l e r r o r .  i n f o r m a t i o n be  him t o  of  alienated  him t o withhold consent,  consent  consent  he b e l i e v e d  theoretical  an u n t i m e l y d e a t h ,  a piece  approves  to  act.  or not p a t e r n a l i s t i c  surely  o b v i o u s l y happy  and t h u s  j u s t i f i e d , but  led  f o l l o w i n g c o n d i t i o n as  paternalism:  (i.e.  Are  the  simply never  which leads  is  tacitly  dies before  (1)  him t o  B  action,  after  i n f o r m a t i o n which would have  doesn't  that  freedom of  the  suicide,  subsequently consented to  instance,  a paternalistic  plications.  is  attempt  in effect  specific  Consent,  of  —  He h a s his  i n the  whether  etc.  again  given  or  i f  the his  he  52  present etc.  dispositions, values,  would lead  we w o u l d b e mining the  him t o  j u s t i f i a b i l i t y of  subject  his  p e r s o n a l i t y were the  would  lack  But  this  (In  the  ing  necessary  is  consent.  consent  of  rest  of  in  paper  I  also  shall  were  often  the  f u l l  style,  not the  For  to  state  of  his  not morally  speak  of  necessary  deter-  example,  t h e n we n o l o n g e r the  case  information only  i f i f  have  personality.  neutral.  simply consent  j u s t i f i c a t i o n of paternalism;  shorthand f o r  l i f e  relevant  action.  certain  certainly  this  is  c o n d i t i o n as  to  be-  be  given  in  paragraph.) The p r o b l e m w h i c h now p r e s e n t s  with  respect  people  to  towards  respect  Rawls'  position,  to which paternalistic justification,  his  consent.  This,  the  class  able  to  i t  consent  and those  under  circumstances.  extensive  with the  competence,  into  certain  i n which consent These  division of  those  is  would not  where the  actions  (under  explicit) any  there  p e o p l e who  similar to a  one  I  is  subjects  the  w i l l  of  with  necessary never  give  a natural division i n which  circumstances,  are  is to  of  reasonbe  made  forthcoming  designed t o be  of paternalism  permanently  i t  yet  u n l i k e l y t o be  two c l a s s e s  are  f u l f i l l  subject  those  raised  special class  obviously j u s t i f i e d , but  acts  i.e.  is  seems t o me, p o i n t s t o  of p a t e r n a l i s t i c  expect  itself  v i z ;  whom p a t e r n a l i s m i s  condition for  of  this  are m o r a l l y  some w a y ,  information, but  f o r the  If  upon r e c e i v i n g  changed  this  capacities,  a paternalistic  a condition which i s  understood as this  his  invoking conditions which  the  simply  give  intellectual  on the  incompetent  cogrounds  being  53  co-extensive with the 'no-consent' class; those people who are not permanently incompetent  being co-extensive with the 'consent' class.  I t i s d i f f i c u l t to be precise about who the incompetents are or what i t i s they are incompetent to do.  The people I want included  i n t h i s class are those whose grasp of r e a l i t y i s so weak that they are incapable of getting on i n the world without direct and extensive outside help. They are those who are unable to understand or practice the most basic requirements of survival, and so whose l i v e s would be i n immediate danger i f i t were not f o r interference on the part of others.  The mentally retarded ~  at least those below a certain  level —  and some types of permanently insane, e.g. those who suffer  from delusions such as thinking they can f l y , w i l l undoubtedly f a l l into t h i s class.  Of course very young children w i l l also be incompe-  tent i n t h i s way, but only temporarily.  Although t h i s i s a l l rather  vague i t should at least be clear what the d i s t i n c t i o n i s that I wish to draw using the concept of incompetence. The reason that the permanent incompetents w i l l not l i k e l y come to approve of paternalistic actions towards them i s that t h e i r state i s unchanging ~ t h e i r a b i l i t i e s and quality of judgment are not going to improve (by assumption)— so there i s no reason to believe that they w i l l come to see the wisdom of someone's interference.  On the  other hand, with respect to those who do not f a l l into the class of permanent incompetents, we can obtain p r i o r consent to paternalistic interference, or expect subsequent consent to be forthcoming under  54  certain conditions, e.g. i f the situation i s such that t h e i r assessment of i t i s l i k e l y to change, or i f t h e i r state i s such that i t i s l i k e l y t o change i n such a way as to a l t e r t h e i r assessment of the relevant situation.  Having made t h i s d i s t i n c t i o n , I s h a l l set aside  the class of permanent incompetents f o r l a t e r consideration (Section 5) as they raise special d i f f i c u l t i e s , and direct my attention to the class of competents.  U n t i l such time as i t i s e x p l i c i t l y stated, my  remarks are to be understood i n what follows as being directed towards that class. I t w i l l be remembered that I have argued that only consent, given before or after an act of paternalism, or the disposition t o consent upon the receipt of certain relevant information, or the correction of a l o g i c a l blunder, w i l l j u s t i f y that interference. Prior consent poses no problem for the person engaging i n paternalist i c interference; he knows that under the specified circumstances he can j u s t i f i a b l y interfere because the consent of the subject has already been given.  But what of someone who i s faced with a situation  i n which paternalistic interference with another's action i s an open option, but where p r i o r consent has not been given? How i s he t o decide whether or not to interfere? The decision, I suggest, should be made on the grounds of the likelihood of subsequent consent. I f the agent judges that i t i s at least reasonably l i k e l y that his interference w i l l meet with the subsequent consent of his subject, then his act would be subjectively j u s t i f i e d .  Of course, whether i t i s  55  objectively quent of  j u s t i f i e d depends  consent  certain  is  information,  might want t o the  vary  interference  but  i f  the  sufficient  inversely  then there  consequences i f  there  consent.  This  its  rationale  moral But  how d o e s  l i s t  most  I  judge  can't,  exclusive  of those  whether  whether relative  3.  whether  by  the  nature  are  commented  but  needs  l i k e l i h o o d of this be of  then  case, I  think  interesting, on i n  i t  and p r e f e r e n c e s  proposed subject  is  is  of in  in  the  of  not  i n  forthnonbe  approval,  would  of  be  subsequent sure  what  one.  I  consent? think  there  i n making such offer  an  the  l i s t  important,  some d e t a i l  action  I'm  question,  the  be  subsequent  subsequent  relevant  conditions, but  which  of  One  would not  s i g n i f i c a n t chance  reasonable,  paternalistic  aims  the  the  consent w i l l  very bad indeed,  to  receipt  consequences  good chance  answer  subse-  justification  consequences  i t  the  upon t h e  subjective  or whether  the  no p r e c i s e  permanent 2.  a  the  small but  would be,  Each c o n d i t i o n w i l l be 1.  i f  conditions which w i l l  of mutually  contains  i s ,  w o u l d be a  or not  a logical error.  how s e v e r e t h e  must be  were  one  is  a number of  calculation.  with  for  of  should be t h a t  m o d i f i c a t i o n seems  Although there are  correction  one  That  on whether  o r would be g i v e n  requirement  how s u r e  would be.  harmful,  given,  or the  temper the  f o l l o w i n g way:  coming w i l l  very  actually  entirely  a  exhaustive below  and  central.  below.  accordance  with  the  subject;  a temporary  state  of  incompetence; refraining from interference  would result  in  large  56  disutilities in  interference  whether  4.  which  the  are  engaged  in  6.  whether  certain  The  f i r s t act  for  with  is  one w h i c h w i l l  whichever  the  the  coming  of  the  For  the  number o f  increase  i n the  consequences  this  was  subsequent  subject's  it  the  other  true)  the  permanent were  doing  would be  consent.  So,  very  this  there  pater-  aims someunlikely  condition  is  t o be  a  this  is  obtain.  I conjecture  that  this  possible that  permanent consent  in  aims must  aims  the  consent be  there  is  and any  general  subject  that  are of  of  with  is  forthare  accompanied  no sense  and preferences.  consent  true  and p r e f e r e n c e s u s u a l l y be  otherwise  conditions which  probability that  his  i f  interference;  is  true  i t  since  the  has permanent  be  either  f u l f i l l e d i f  or furtherance,  w i l l  is  obtain.  could think they  although i t  subject  However,  utilities;  paternalism  importance,  with  such l o g i c a l r e l a t i o n s h i p between  ditions. in  someone  other conditions  by t h e i r maintenance  :  special  maintained nor furthered,  saying that  harmful  conventions  j u s t i f i c a t i o n of  even though the  neither  has  engaging  emergency;  always have t o be  a logical truth.  significant  i n which the  accordance  subject's  chance of  in  of  own g o o d w h e r e  meet  in  action  an  social  (assuming  to  reasonable  constitute  were not  his  result  circumstances  condition is  and p r e f e r e n c e s thing  would  or whether  irreversible;  the  nalistic  person concerned,  decision or  whether  5.  no  f o r the  the an  in  There other  is con-  increase  f u l f i l l e d follows a paternalistic  an  action  57  w i l l  give  his  subsequent  f u l f i l l e d  there  justified  than  w i l l i f  consent.  generally  only  be  j u s t i f i e d than  filled.  w i l l  are  tremendously  quent were it  this  consent  exactly  only  on t h e  what the  subject  'permanent  of  true,  might  2,  and l e s s  1,  2,  for  3,  nature  of  the  and  3  i f  be more  the  are  being  chance  of  and 4 were  f u l -  disutilities  chance  and 4 were f u l f i l l e d t h a n  proposes t o  one,  aims  of  i f  significantly  subse-  1 through  less.  do and what must be  4  Obviously  surrounding circumstances  indicating the  one,  circumstances,  it  strives  for  family,  being  usually that  i n the  of  things  action  to  be  kinds  of  things  w i l l  broad  include outline  a competent (but  not  specific  his  done t o  permanent  that,  l i f e  to  avoid  as w e l l in  the  as  and pre-  which  plan,  primary  what e l s e physical  other things. and p r e f e r e n c e s  such  i f  one  posi-  permanent  plans as  and  having They  goods  a  w i l l  those  want,  and mental  Because t h i s are  nega-  appropriate  he  they  a  a  A person's  things  the  capacities,  aims  ought  both  and a good p r o f e s s o r .  include  and p r o b a b l y  one  promote.  want no m a t t e r  intellectual  sufficient wealth,  of  condition is  justified,  those  pianist,  always)  most people  well-developed  more  kinds  would be p r o p e r t o  and preferences  things  and p r e f e r e n c e s '  i n d i c a t i n g the  tive  i f  a l w a y s be  2,  precise  paternalistic  also  a l l  d i s u t i l i t i e s were  wants h i s  aims  i f  1,  of paternalism  fulfilled,  then there  1,  chance  i f  him. The  tive  large,  f u l f i l l e d and the  depends  vent  i f  not  example,  more  1 and 2 are  paternalism being But  For  unknown,  such  as  health, is  true,  the  58  primary goods  are  the  safest  things  bably be  among t h e  subject's  possible  of  for  trary  one  is  to  the  case  t o be with the  course of then  ences as  in  permanent  able  to  act  than  i f  accordance a primary  aims,  in  there  accordance  these  are  wants  is  his  and give  with  If  his in  this  accordance  one h a s  and  consent  only  contrary chance  act  consider  fact  of  i f  wants.  to  one  only the  not i t  the  Because  of  consent aims  is con-  rightly  known permanent  unknown and  be  and p r e f e r e n c e s ,  what he  a better  in  pro-  It  paternalistic  should act  aims  good t o be  actually  and p r e f e r e n c e s .  he  w i l l  and p r e f e r e n c e s .  subject would  with  they  and  a  sub-  i f  one  prefer-  primary  goods  guidelines. It  not  is  particularly  only because,  consent with  w i l l be  his  i f  p o i n t e d out  aims  the  subject  an a s s a u l t  on the  can also  be  of h i s  seen t h a t  highly  see  act the  is  fulfilled,  unlikely  not  primary contrary  in  that  accordance  goods, to  interference  but  these as  simply  person.  one  Dworkin's  is  or the  purposely  would r i g h t l y  basically  i t  c o n d i t i o n be  interference  and p r e f e r e n c e s  integrity  condition is  this  above,  the  someone were t o  guidelines  This  as  important that  forthcoming i f  permanent  also because  i t  consent,  expressed permanent  possible for  ject's is  was  aims  agent  his  aims  because  primary goods t o  what most people want,  interference is  an  subsequent  p a r t i c u l a r primary good;  irrelevant  it  of the  obviously i f  subject's  promote,  permanent  someone's permanent  j u s t i f i e d by his  one  to  of those  offered by  c o n d i t i o n #8  —  the  Rawls,  measure  but preserves  59 and enhances for the individual his a b i l i t y to rationally consider and carry out his own decisions — would be included i n i t , since what i s being preserved or enhanced i s one's i n t e l l e c t u a l a b i l i t i e s  ~  one of the primary goods. Condition 2 i s about incompetence. I am concerned there not with the distinction between those who suffer from a severe permanent incompetence — I am s t i l l concerned only with those who are not permanently incompetent — but those who are suffering from a temporary incompetence relative to t h e i r usual state.  Temporary insanity  or emotionally crippling states are examples of states i n which an adult would be less competent than usual.  We know by empirical obser-  vation that such people don't have the a b i l i t i e s necessary to make decisions as wisely as they do and would make i f they were not i n such a state. Their perception, assessment or appreciation of relevant facts, weighing of values, and other i n t e l l e c t u a l a b i l i t i e s are i n f e r i o r t o what they usually are, and t h e i r emotional outlook w i l l often be warped. Such i n a b i l i t i e s are l i a b l e t o result i n decisions that are not only foolish or harmful, but ones which a person would not have made i f he had not been i n an incompetent state and which he would therefore have reason to regret.  Because t h i s i s true there i s  a good chance that interfering with a decision of a r e l a t i v e l y incompetent person when i t would have bad consequences f o r him w i l l meet with h i s approval once he has regained his competence. Similarly, we know from empirical observation that a child's  60  a b i l i t y to assess or appreciate relevant facts, weigh values, etc. are i n f e r i o r to what they w i l l be when he i s an adult (although he may as a c h i l d be as competent as some other (competent) adult).  And  we can account f o r t h i s simply by the fact' that children haven't been around long enough to develop t h e i r potential a b i l i t i e s or had enough experience i n getting on i n the world.  Of course the longer one l i v e s  the more experience and knowledge one gains, experience which i s no doubt expressed t o some extent i n one's decisions.  But children are  going through an incredibly rapid period of learning, and thus change, which, i f I may make an empirical speculation, levels out i n our society somewhere around the age of 18.  (My guess i s that this i s  c u l t u r a l l y determined to a rather great extent.)  And because t h e i r  a b i l i t i e s are i n f e r i o r they are l i k e l y to do things which they (as adults) would think foolish.  This means that paternalism towards the  c h i l d has a good chance of meeting with the subsequent approval of his adult self, since with the development of his a b i l i t i e s and judgment he w i l l , we hope, see the wisdom of our interference. I t i s worth pointing out that Dworkin s conditions #5 and #6 are 1  subsumed under my condition of incompetence.  They are, respectively,  where decisions are made under extreme psychological and sociological pressures; and where someone i s suffering from a temporary state, such as great fear or depression, that i s i n i m i c a l to the making of well-informed and rational decisions.  Such conditions are ones which  affect the competence of the person suffering from them, and i t i s  61  for  this  under  reason,  one  of  likelihood The is  the  of  such cases  w i l l  of  ties  and at  first.  the  of of  he w i l l  benefit  himself  i f  adult.  from your  his  his  own w e l f a r e  act  in  his  since  do  many  children's welfare do once  they  his  so w h i l e of the are  large  subject  is  d i s u t i l i -  a child,  the  is  and  There  The l a t t e r  either  adult  and  of  the  a child  or  opportunity  a  for  on the  grounds  that  than because  he w i l l  harm  did  one  state.  i t  For  he  and  can  again competent,  incompetent.  This  parents  which the  the  c i r -  would p r o b a b l y not meet  things that  were a d u l t s ;  prevent  and even i f  competent  things  shall  utilities.  is  because  rather  when he  so I  paternalistically:  subject  this  subject  two d i f f e r e n t  utilities.  incompetent  interfere,  own w a y  state,  i t .  from non-interference;  certain  so,  come  when the  c o u l d do b o t h ~  is  they  consenting to  usual  in  seldom a r i s e ,  upon r e c o v e r i n g  forced to  children,  result  —  determining•the  relevant  result  This  doing  w i l l  opportunity to  approval  would  a temporarily  you don't,  his  to  to  concerned with  importance when the  with  able  is  to  importance when the  interfering  their  It  same t i m e p r o m o t e  incompetent  of  important  relevant  u s u a l l y be  t i m e s when one  temporarily  need t o be  are  a paternalistic  relative  interference  course be  former w i l l be  the  of  is  d i s u t i l i t i e s would  two w i l l be  took  they  i n w h i c h one m i g h t c o n s i d e r a c t i n g  when o n e ' s  the  subject  incompetent  when l a r g e  (2)  that  third condition w i l l  cumstances (1)  believe,  conditions which  the  temporarily  consider  I  i s  with  promote  and  doesn't  often not  do t o  true  promote  c h i l d r e n would not  o p p o r t u n i t y would have  be  passed.  62  And even where t h i s forced are  as  a child to  often  subject with  obvious.  is  On t h e is  then  of the  the  his  course  be  some  likely  didn't  his  usual  competent  that  his  an  of  been  adult the  meeting  unhindered  independent  adult  or  a  result  in  large  upon r e c o v e r y  of his  respectively,  the  and thus  him, provided  a c t i o n were n o t more a c t i o n would  small,  smaller disutility)  us  incompetent  which prevented  other prevailing  have been v e r y w i l l  as  good chance  do what he p r o p o s e d ,  forthcoming even though the  There  done  having  p r o m o t i n g u t i l i t i e s when  fairly  adulthood,  being thankful f o r  which would give  not  seems  he  of  constituted a of  a  of  something which would  used t o prevent  results  chance  advantages  a temporarily  d i s u t i l i t i e s would have been  ence  be  i f  interference  means  reasons,  o f t e n have  o r upon reaching  approve  than the  these  from doing i t  happy t h a t  the  the  consent.  w i l l be  that  For  prevented  state,  case,  do something w h i c h c o u l d be  other hand,  disutilities tent  not the  a child w i l l  subsequent  child  i s  the  then, there  reasons  (even i f  w i l l of  such as  course,  undesirable  the  w o u l d be much There  But  i f  interferless might  of  irreversibility,  for believing  disutilities of  subject  have been.  intervention.  condition,  compe-  consent  would  non-interference  would  great.  a l s o be state,  cases i f  utilities  one c o u l d f e e l  meet w i t h  subsequent  where,  e v e n when someone  non-interference fairly  consent.  sure that Such cases  would his  result  is in  interference  would be  ones  in  his  large  dis-  would  i n which  the  63  subject  lacks  some p o i n t a  a piece  in  the  h e l l where  words  death:  other people  ing.  consent  of  going to  render  u t i l i t y  death,  the  of  fact  that  interfer really  with  It  add a n y t h i n g  because result  an act in  with  greater  quences were not  approval  we  even i f  interference  he  the  thought  previous  irreversible  of  subsequent  with the  have been consent  to  eternal  I  each  the  him  from  relevant  d i d get  i t  would  an act there  that  conditions:  d i d not  would be  this  entail no  condition large  same don't  act  would i f  think  acts  i t  w i l l  even though the  interference.  disdis-  reason  to  doesn't  disutilities  is meet  always  its  conse-  redundant, with  the  d i s u t i l i t i e s of  s m a l l e r t h a n would u s u a l l y be for  burn-  death  harmful consequences w i l l  But  "I  on g a i n i n g  combines two  condition of  that  many  say,  after  got the he  is  justified.  some i r r e v e r s i b l e subject,  i f  there  but  which prevented  never  at  appropriate  their  could count  obviously i f  irreversible.  would actually  gain the  to  refuse  have  that  know i t ,  guaranteeing  interference  d i s u t i l i t y than  interference  sequent  truth,  might be  true  says the  A n d we  as b e i n g i r r e v e r s i b l e ,  i t .  one  he w o u l d c o n s e n t  and i r r e v e r s i b i l i t y ;  is  and assuming t h a t  consideration actually  as w e l l  i t  and what's more, thereby  course  say  unless  Christ."  i t ,  know the  But  fourth  utilities  act  accept  the p a t e r n a l i s t i c  The  eternity  each person f o r the  hell.  i n f o r m a t i o n w h i c h he w i l l  instance,  such circumstances,  come t o  information,  since  "I  don't believe  in  person w i l l  For  for  C h r i s t , " before Now,  relevant  future.  one b u r n s  before  accept  of  This w i l l be  needed true  subthe to  64  simply because a person w i l l often be grateful not to have done something which he realizes would have been irreversible, even i f the d i s u t i l i t i e s of doing so would not have been very great.  And i f he would  be grateful, and there are no other conditions which would lead him to withhold h i s consent, then i t i s reasonable to expect that h i s consent w i l l be forthcoming.  In this way the i r r e v e r s i b i l i t y  of an  action w i l l play an important part i n determining the probability of subsequent consent. The f i f t h condition refers to emergency situations.  There are  of course a number of different kinds of emergency situations, but the one which i s relevant to the question of paternalism i s one i n which the subject i s about t o do something, the dangerous nature of which he i s unaware, and of which we haven't time to warn him.  Stop-  ping someone from crossing a bridge that i s , unknown to him, about to collapse i s a case i n point.  Once i t i s explained to our subject why  we tackled him as he was about to step onto the bridge, i t i s highly l i k e l y that he w i l l approve of our having done so. But i f he i s aware of the potential danger of walking on i t , and while f u l l y i n possession of his senses s t i l l wishes to do so, then we have no reason to believe our interference would meet with h i s subsequent approval, and ought therefore to refrain. The last condition i s the one, of the three offered by Donaldson, which I thought to be of importance. The suggestion i s that i f there i s a social convention of interfering with a particular kind of action  65  which i s deemed harmful to the individual, then i n the circumstances covered by that convention, people might expect, and i n fact count on, such interference.  A certain class of attempted suicides would, I  think, be covered by such a convention. I am thinking of those cases of suicides which are really a cry f o r help and not those i n which someone i s either seriously interested i n ending his l i f e , or where he i s i n a state of relative incompetence i n which i t i s impossible for him t o assess h i s situation accurately.  People do t y p i c a l l y  interfere i n the l a t t e r two cases, not because of t h e i r recognition of a convention of doing so, but either because they think a person ought not to take his l i f e under any circumstances, or because the person proposing t o do so r e a l l y i s n ' t i n a state i n which he can make a reasoned decision about the matter.  But f o r those people  who are using a suicide attempt as a cry f o r help — i n effect saying,  "Things are going t e r r i b l y f o r me, please help," — others  might interfere because they recognize the convention of doing so. They understand the attempt to be what i t i s — a cry f o r help — and respond i n the appropriate manner, i . e . with interference.  We can  assume that the potential suicidee i s aware of the convention and i s acting i n accordance with i t and expects others to do t h e i r part, i.e.  stop him from taking his l i f e .  And i f t h i s i s the case, i f the  subject i s acting i n accordance with the convention, then we can count on his subsequent approval. There are I think certain special kinds of relationships i n which  66  more p a t e r n a l i s m when t h e tions  is  justified  circumstances  don't  of  haps  siblings.  isn't  such relations  clear  These  as between are  of what they  a l l o w more p a t e r n a l i s m quite  aching is,  clearly  knees.  but  doctor; get  to  he'd  he  the  his  actions.  I  should refuse I  isn't  of  Section I  that think  to  becomes  merely  this  the  concerned.  but  he  true  But,  give  i f  they  consent  difference  between  this  I  am  thinking  to  go.  I'm  I  and  else  kind of  I  think like  problem  get  bad  going to  the  on,  and  that  I'm  not  going wishing  realize  that  so approve tried  I  i n f o r c i n g me t o  to  a  real,  I  i t  of  that,  interference.  points  i t  they  grudgingly,  doctor, way,  per-  and  But  They  doctor.  anyone  and  s a y why  them  things  the  condi-  some c o m p l a i n t  put  the  that  autobiographical but  I  see what t h e  succeeded  for  the  expected.  have  i n that  that  of  associations,  able  don't  these  seeing  i f  I  i.e.  any  lovers,  He d e c i d e s  me t o  interfered  i t ' s  not  insists  do a l l  After  of  doctor to  doctors,  can drive  i t ,  and w i f e ,  say  expect,  approval.  normally be  and b o o t s ,  budge.  should not  unexplained, not  go t o  l e a v e me a l o n e .  a good t h i n g  doctor,  about  so I'm  example:  going to  so he  expect  f u l f i l l  complex kinds  consist,  to  hate  ear  very  For  my c o a t  a fight  just  do.  my l o v e r  was  this  have t o  husband  than would  ought I  gets  into  have  I  because  enough t h a t  I  really  u n d e r w h i c h we w o u l d n o r m a l l y  here  they  t h a n we w o u l d n o r m a l l y  a  trust  though  relationship  and  others  class.  2. have  only  argued  so  far  that  consent  is  a necessary  condition  6?  for  the  j u s t i f i c a t i o n of  question of whether dering  this  sufficient to  detailed  rights  A type  "... who that the  form:  when i s  analysis  introduce of  is  circumstance  there other's  them a g a i n s t  assume,  approve  such b e l i e f s .  a violation  of the We m u s t  that  process also  t h i s was Now we  one's has of  In  fact  that  due  is  a  right  the  not  w i l l  i t  don't  was  said of  Rawls,  viz:  reason  and  and  suppose, and,  we  say  w i l l ,  suppose  each  imposed  to on  both  w i l l  w i l l  coming t o  have  act  pat-  t o be  thought to be  want t o  addi-  sufficient  is  order f o r the  done because  the  convert  new b e l i e f s " ; *  in  tool,  already  a  process us  order  i t .  their  let  a  an a n a l y s i s  responsible for their  certainly  offered  that  course,  assume,  b e l i e f s was  have  or philosophical beliefs;  conscientiously their  good.  Tooley^  the  t h e i r wishes.  accept  with  despite  so has  s i t u a t i o n envisaged by  some p s y c h o l o g i c a l p r o c e s s  come t o  ernalistic,  consent  f u l l possession of  view,  In  recommend  two persons  is  consi-  s h a l l be  paternalism?  under  a  religious  I  not  Doing  exemplified by i n  the  consent  show how w h a t I  i n which  considered  a new t e c h n i c a l  rights.  i n d e p e n d e n t l y much t o  affirm different  ference  have t o  not  condition.  j u s t i f i c a t i o n of  a l l o w i n g me t o  has  of  imagine  subject's  negative  have  j u s t i f i c a t i o n of paternalism f i t s  which  condition  of  but  sufficient  the  question I  a more  the  a  its  condition for  tional benefit about  is  problem i n  answer t h i s  namely,  i t  paternalism,  that  for  such  the  inter-  justified.  an a n a l y s i s  which provides  of a  rights  and what  rationale  for  constitutes  holding  that  68  under c e r t a i n argued, is  not  tant  a a  part  circumstances,  necessary sufficient  consent,  condition f o r the condition.  i n what f o l l o w s  I  even though i t  j u s t i f i c a t i o n of  Because  quote  i t  i s ,  his  in  analysis  as  I  have  paternalism,  plays  an  impor-  full:  " I n d i v i d u a l A has a r i g h t at time t t h a t s t a t e of a f f a i r s S o b t a i n at t * i f and o n l y i f i t i s the case t h a t i f A were t o d e s i r e at time t t h a t S o b t a i n at time t * , then, i n v i r t u e o f that f a c t alone, other i n d i v i d u a l s would be under a prima f a c i e o b l i g a t i o n t o r e f r a i n from preventing state of a f f a i r s S from obtaining at time t*. ... An action can constitute a v i o l a t i o n of A*s r i g h t at time t t h a t s t a t e o f a f f a i r s S o b t a i n a t t i m e t * i f and o n l y i f one o f t h e f o l l o w i n g c o n d i t i o n s o b t a i n s : (1) the action i s performed at time t, i t prevents state of a f f a i r s S from e x i s t i n g at time t * , and i n d i v i d u a l A desires at time t that state of a f f a i r s S obtain at time t. (2) t h e a c t i o n i s p e r f o r m e d a t some t i m e t , i t prevents s t a t e of a f f a i r s S from e x i s t i n g at time t * , and although i n d i v i d u a l A i s incapable of desiring at time t 'either that S obtain or that S not obtain at time t*, A d i d desire a t t i m e t t h a t S o b t a i n a t t i m e t * , w h e r e t i s t h e moment of time immediately preceding the t i m e i n t e r v a l i n which A i s incapable of desiring either that S exist or that S not e x i s t at time t*. 1  1  (3) the action i s performed at time t and prevents state of a f f a i r s S f r o m o b t a i n i n g a t t i m e t * , and a l t h o u g h i n d i v i d u a l A does not d e s i r e at t i m e t that S obtain at time t*, e i t h e r because A i s incapable o f having the desire at t h a t t i m e , o r b e c a u s e t h e r e i s some r e l e v a n t information t h a t A d o e s n o t p o s s e s s a t t h a t t i m e , t h e r e i s some l a t e r time t at which A w i l l e x i s t and at w h i c h he w i l l d e s i r e that state of a f f a i r s S e x i s t at time t*. 1  1  (4)  the  actions  because not  essential  t o which he  occur,  because  his  is  idea  [of  this  qondition]  an i n d i v i d u a l does  incapable  or because desires  he  of  d e s i r i n g at  lacks  have been  or physiological factors  —  not  relevant  is  object  the  time  simply  —  that  information,  "warped" by  that  either  they  or  psychological  may n e v e r t h e l e s s  violate  his  69  r i g h t s i f t h e r e i s some t i m e a t w h i c h h e i s o r w i l l b e c a p a b l e of w i s h i n g that, the a c t i o n had n o t b e e n p e r f o r m e d , and a t w h i c h t i m e he w o u l d so w i s h i f he had a l l t h e - r e l e v a n t i n f o r m a t i o n and had not been s u b j e c t e d t o i n f l u e n c e s t h a t distorted his preferences."3 A l t h o u g h I'm conditions  they  not  are,  action can v i o l a t e ponding  desire  some t i m e  in  information, factors. right  I  i f  he were  the  has  f i r s t  at  not  should also  do  time  a desire  important  show t h a t  there the  is  corres-  or w i l l  he had c e r t a i n  an  have  relevant  physiological a v i o l a t i o n of  s u b j e c t would have  a i f  subject  the most desires  so by  usual cases  to  do  into  a modification of  paterna-  something and  someone e l s e  coerced  of  (or  the  doing i t ) .  the  fourth  is  subject But  the  condition,  i n arguing that  a r i g h t has been v i o l a t e d  of paternalism,  such as  the  one q u o t e d  i n  from  67.  w i l l be  those  past,  these  errors.  something and i s  cases  that  of  frustrating a  i n the  add t h a t  from doing  or rather  They  f o r psychological or  condition w i l l cover  that to  on p. It  rights by  or would have i f  the  details  correct.  h a d some t i m e  were not  utmost importance  certain  that  i t  t h i n k we  fourth condition,  Rawls  now,  future,  or i f  basically  an i n d i v i d u a l ' s  interferences:  desires  of  think,  s a t i s f i e d with the  not making c e r t a i n l o g i c a l  prevented  is  I  an a c t i o n v i o l a t e s  The l i s t i c  he  entirely  remembered t h a t  actions  he w o u l d o b j e c t information,  to which the  later  or that  i f his  i t  the  fourth condition states  subject  weren't for  desires  does not  object,  the  that  fact  but  basically to  he l a c k s  which relevant  have been warped by p s y c h o l o g i c a l  or  70  physiological factors, I  modify t h i s If  someone  later  at  the  approved  i f  i t  in  the  time,  approves but  were not  his  desires  of  an  one o f  b)  he  lacks  relevant  c)  he  is  certain  making l o g i c a l  spite  of  the  This  constitute  measures  subsequent  is  also  useful  which c h i l d r e n are  in  a child w i l l  i n  depend,  effect  impaired his  o r w h i c h were come t o narrow  in part,  of  religious  of  the  the  subject  interference  are  certain  come t o  other  the pressures  lead  a f u l l  reasons.  used t o  force  sect which forbids various  of  they  or  were  treatment  instance,  him i n t o kinds  of  the  is  others very  which  a n d h a p p y human  For  because  approve when he  If  kinds  pat-  unjustified  A problem arises  and a t t i t u d e s .  abilities to for  showing t h a t  them.  dissent from certain  undesirable  approve  of  o n how s u c c e s s f u l h i s p a r e n t s  inculcating their beliefs  s u c c e s s f u l he may n o t  a  approval  subjected to  which p a t e r n a l i s t i c measures  in  psychological  blunders.  approve  w i l l  then  information;  e v e n t h o u g h t h e y may come t o  an a d u l t  later  unjustified paternalism.  c o n d i t i o n (4»)  ernalistic  have  he  right:  b e l i e f - c h a n g i n g example c i t e d from Rawls,  would s t i l l  were  his  "warped" by  factors;  in  which  following factors,  a violation of  have been  right.  reads:  action to  the  or physiological  that  subject's  o f w h i c h he w o u l d n o t  for  action constitutes  means  the  an a d d i t i o n a l c o n d i t i o n which  a)  This  a violation of  t o make  objected  that  constitute  he  l i f e might  mould  artistic  of  endea-  71  vors he  and i n h i b i t s t h e  now a c c e p t s  the  right  enjoy  is  the  the  case  or the  abilities,  i f  given  that  the  the  to  that  he  not  approve i.e.  to  i f  w i l l be  "warped". less  skills  the  i f  had he b e e n  of  the  4'  does  not  subjected  count  to  condition.  his  case. moral  preferences Such  as  issues which I  at  an a l i e n a t i o n  cannot  doubt be  treatment  have been,  least  i n  would this  artistic  but  sometimes,  of  he would n o t  someone's p r e f e r e n c e s  he m i g h t  highly  his so  times have  this  w i l l  not  involve here.)  when  been  w h i c h made o f t e n be  p o s s i b l y go i n t o  used  measures,  w i l l  w i l l  The  measures  "warped" by those  of  people  develop them.  no  case  capacity  them t h e y assume  what  or  follows that more  be  beings  more t h e  have developed  (There w i l l  to  this  innate  paternalistic  have been warped,  judgments,  in  human  require  them, because  d e c i d e when  the  So we c a n  the  had not been  individual than  It  allowed to to  skills;  appeal to  (their  do n o t p r e f e r  opportunities.  preferences  equal,  increases  things that they  I  arguing that  complexity."^  do t h o s e  abilities  d i f f i c u l t to  happy  stantive  enjoyment  Whether an i n d i v i d u a l approves  to whether be t h e  right  in  things.  realized capacities  and t h a t  have been  his  because  these  other things  subsequently consents  i n h i b i t these  right  value  intellectual  and has been t r a i n e d  c h i l d would have p r e f e r r e d t o  and i n t e l l e c t u a l fact  greater  various  religion,  "...  and t h i s  generally prefer to  so  not  of their  abilities),  developed do  the  of  Aristotelian Principle  exercise  realized  w i l l  a  of  has been i n f r i n g e d :  trained  i t  tenets  development  k i n d o f p e r s o n who d o e s  Rawls c a l l s a  the  f u l l  a  him guide  always sub-  72  One m a y c o n c l u d e either  upon r e c e i p t  logical  errors,  and that stances  i t  also  a the  are  two  by the  to  f a c t o r y where h i s  and d e c i d e s  to  he  He g i v e s  taining  the  a  We h a v e  influence  for  companion,  orders.  But  his  in  correction  of  paternalism, those  the say  circum-  wishes.  letter, We m a y  suppose t h a t ,  d i s c o v e r s what h i s  ference. thesis  We h a v e h e r e  a business  I have developed.  should not  not  the  regu-  hardships  for  the  associate,  i t ,  return to done  the  his  have i n t e r f e r e d ,  one m i g h t since  i t  with-  of  con-  once  decision, not out  factory,  and approves  object,  be  that  decides  justified paternalism,  But  hearted  a letter  sure  regret  of  manager  and  manager from c a r r y i n g  upon h i s  exem-  rules  unusually big  only  anguish because  of  a case  unpopular regulations t o  companion has a case  various  companion, being f a i r l y  thus preventing  paternalism  unkind i n d i v i d u a l as  he becomes  w i l l the  of  involves  and unnecessary  but  considerable  theory  first  a very  manager goes b a c k t o work he w i l l suffer  this  perpetuates  on h o l i d a y s ,  orders  to The  the  panion  justified  consent  4*.  objections  considerable is  give  drawn.  the  upon t h e  condition, except  consider.  following.  w o r k e r s W h i l e  ager  or  condition for  condition  natural  l a t i o n s which cause  mail  disposition to  information,  sufficient  I w o u l d now l i k e  plified a  certain  or the  3.  There  of  of  consent,  a necessary  covered by  Section  which  is  i s  that  his  to his  the  inter-  according  surely  his  man-  to  com-  would have been b e t t e r  for  73  a l l  the  workers  i f  he  have maintained t h a t that  i t  is  a  action  is  derations, w i l l act  engage  or w i l l  such as  conclude that  of which  a l l  some l a t e r  i f  time  stop he  him.  also  whether  to  leave  never  i t  i t ,  approves  of  starting  to  take  would have wished t h a t 'does  not  relevant  his  we  one  on  on other moral  ought  consi-  Sometimes not  engage  a case the  to  see  so would never  a very  he t a k e s and h e r  her  one in  an  hoping that  husband never  wife  had  could perhaps  her  had  preven-  heroin,  objects,  threat  takes  she  to  include  If  we c o u l d  include this  case  'not as  and  w i l l  heroin,  i f  would  but  hadn't have  suffering withdrawal  interfered. 1  inter-  t i m e when he w o u l d  say while  information  the  try  do,  However,  some l a t e r  have  subject  a man w a n t s t o to  subject  would  to  the  form  the  someone  harmful thing i t ,  i t  consent  that  interference.  heroin,  that  interfered with  say  basic  interfered with,  and would wish  have c e r t a i n f a c t u a l experience*  also  involves  example,  is  works  depend not  other people.  necessary  i n t e r f e r e d , there would have been regretted  but  an a c t i o n i s  For  him i f  Her threat  considered.  paternalism.  do and  regret  wife, believing  threatens  only  a c t i o n were not  ted him from doing i t . his  one  things  affect  experience  the  I  Whether  i f  but  agree.  a l l  is  a foolish thing to  only  not  objection  as f o l l o w s :  can  action,  second p o s s i b l e  been  but  w i l l  I  justified paternalistic  consented t o ,  justified  have the  To t h i s  things considered  never  at  a  so.  in paternalism w i l l  be  w i l l  ference,  is  how i t  that  would be  The  this  done  justified action,  ought m o r a l l y t o the  had not  and  stretch having  one  of  a  74  those sent  j u s t i f i e d u n d e r my t h e o r y , i f  he h a d c e r t a i n  should) case  stretch i t  (and  counter  to  t e l l  some p e o p l e ' s  although i f  against  i t .  b y my t h e o r y right of  action.  right  right  there be  i t  respect  to  exists  I  on t h e  to  this  assume  freedom  of  most  action,  of  the  conditions  interference  with  am  that  admit  intuimight  I  stand  have  the  to  freedom  people that  do  they  harmful.  have  Unless  a prima facie would be  run  not  this  right  personally  such actions  right  can  unjustified.  4. have been m a i n l y  concerned,  i n what  action,  have developed  to p a t e r n a l i s t i c  the  think  so must  I  however,  have the  under which  personal paternalistic  of  ones  one d o e s n ' t  others, and  but  everyone's  central  this  does perhaps  subject,  If  really  do t h i n g s which might prove one  This  con-  (or  paternalism i n  intuition,  intuition.  husband would  t h i n k we c a n  accords with  certain  one d o e s n ' t  and I  to  overridden,  Section  I,  the  her  don't  unjustified.  clashed with  With  I  that  w h i c h means t h a t  intuitions  and a g a i n s t  But  But  a theory which  t o make m i s t a k e s ,  have the the  t h i s way,  present  saying  information.  s i m i l a r ones) would be  attempting to tions,  i n  by  applies  argument  justified  i f  should be  those  because  i t  is  whether  or  not  clear:  there  towards  s h o u l d be  gone  before,  with  and h a v e n o t m e n t i o n e d how t h e  t o w a r d s whom i t  directed  has  legislation.  paternalistic i s  directed  a body of  The  thesis  general  legislation is consent t o  i t .  are  I  form  only But  p e o p l e who may d i s a g r e e  such l e g i s l a t i o n , there  inter-  on  complications.  75  If  the  majority  making heroin  of  illegal,  drugs which  the  because  to  take  of  unjustified paternalism.  of  action  and they the be  of  hand,  the  difficult  of to  get  making  others  the  it  is  fiably  so,  of the  the  important of  of are  w i l l i t  is  legislation I  It  s t i l l  say  want  i t ,  weakness  make  a  do  their  the  consent)  isn't  that  the  available,  entirely  clear  ~  i t  suggested would be  they  i t  i f  on  shouldn't readily the  relatively  people  for  of  that  and i t  w i l l  the  want  and are  them —  who w a n t  there  sacrifices  but  grounds,  for  the is  the  i t  conceivable  justified.  simply  be  Of  (justitimes, when  they  be because  majority  sacrifice  the  minority.  will,  won't  ~  the  under what c o n d i t i o n s  o n how g r e a t  b e made  freedom  But,  will,  for  majority  because  case  yielding to  sacrifice  depend p a r t l y i t  so.  of the  of  s u f f e r i n g from weakness readily  a  doctor's prescription  a c t u a l l y be p a t e r n a l i s t i c towards  the  say  allowed  do n o t want h e r o i n  The m a j o r i t y  such  have  to  themselves  a s k e d t o make  that  t h e n we h a v e  agree  requiring a  against  be  on p a t e r n a l i s t i c  people  of they  justified.  h e r o i n t o be  can be  suppose i t  —  paternalistic  because  shouldn't  interfering with  people  but  legislation,  t h e n l e g i s l a t i o n w h i c h made  of  who d o n o t  legislation.  minority  danger  safe-guard  such as when t h e y would l i k e  others,  of  harmful,  heroin  of  l e g i s l a t i o n would not course  take  majority  ahold  a  are  those  morally  as  are  of  taking i t ,  might w e l l be legislation  They  a piece  t h i n k people  consent  towards  because  temptation  (they believe)  the  paternalistic  available  they  t h o s e who w a n t t o  haven't  other  people want  is  that  the —  and  of  I  how  the  kind  76  It  is  also  important  paternalistic  —  something f o r  their  do -not  and t h a t  so.  t o be  requires  then  they  are  want t o  most people  i t  is  not,  do.  at  any  And i t  since  required to  would be  good f o r  everyone because less  them t h a t  join i t  i f  requires  expenditure  course,  the  s t i l l  of  the  they  less  do  choice  in  such a case  would be So,  in  great  is  i f  essential  to  the  one  do  at  so  some t i m e  is  can  because  to  is it  i t ,  or  assume), it  is  is  fact  do  their  something those  the  scheme,  not because  necessary or  There  that  and  i s ,  I  that  their  freedom  conjecture  and t h e  thus  of  acceptable  sacrifice  it  perhaps  machinery,  morally  to  medicare  into  included.  that  benefits  sacrifice.  deciding whether  are  in  towards  opt  may b e n e f i t .  the  is  want  comply w i t h  satisfactorily,  required to  majority  a piece  j u s t i f i e d one must paternalistic;  towards  but  being forced to  (we  but  people to  something l i k e  required to  everyone  be  the  non-paternalistic  t o work  to warrant  actually  determine  have consented t o  of  s a c r i f i c e would be m i l d enough,  legislation is  legislation is  want  question of whether  enough,  whenever  paternalistic the  the  do  is  complicated bureaucratic  funds,  order that  do n o t  time,  are  so,  t h o s e who d o n o t w a n t m e d i c a r e of  is  they  scheme  some  non-paternalistic  even i f  is  least  legislation that  be p a t e r n a l i s t i c  i f  who d o n o t w a n t i t , they  at  own g o o d w h i c h t h e y  instance,  since  do not  is,  d i s t i n g u i s h between  w h i c h may a p p e a r t o  instituted,  wishes, they  For  that  to  of  (apparently)  f i r s t  and i f  i t  determine i s ,  then  i t  whom i t  is  directed,  and whether  likely to  do  so i n the  future.  whether is they  77  Section  5.  This l i e r  section is  as permanent  p e o p l e whose getting They  is  the  include the  level  —  incompetents.  grasp  on i n  and  of  reality  some t y p e s is  for paternalistic  those  It  is  world without mentally  unchanging i t  that  concerned with  w i l l  be  direct  retarded  they  —  at  least  insane.  outside  w i l l  for  this  of  help. certain state  ever be  account  j u s t i f i e d towards  are  incapable  Because t h e i r  consent  ear-  they  those below a  How t h e n d o I  so obviously  described  are  and extensive  of permanently  interference.  I  remembered t h a t  so weak t h a t  highly unlikely that  paternalism is  p e o p l e who  given  the  fact  class  of  people? Before make to  considering the  a d i s t i n c t i o n between  receive.  down t h e etc.,  The  street  while  t r i a l ,  the  at  night,  latter  action rights  are  to  certain  ability  to  abilities  i n  as w e l l  and f a n t a s y ,  in  this  then the  is  true  to  include and  situation is  some w a y  tied  the  a way t h a t  not  permanent  drive  a  would l i k e  rights as  car,  such things  as  the  —  and  right  and even the  to rights  to  walk  scratch,  right  to  a  f a i r  food. s t i l l  unclear,  certain  to  true  I  conjecture  abilities —  consequences  and perhaps  ability is  action  such things  or the  concepts,  question I  do ~  to  information,  as  this  liquor,  education  form relevant —  to  include  buy  w i l l  although the  appreciate  rights  former w i l l  medical care,  Now,  answer  other  of  rights  incompetents w i l l  to  ability  actions,  the  intellectual  d i s t i n g u i s h between for  the  that  reality  receive.  either  have  And a  i f  small  78  sub-set of  the  of  a weakened the  prima  of  facie  they  they  they  to  even have  the  prima facie  but  they w i l l  siderations  as  right  At  for  justification. tent's  action  any  jump  with his  is  or to  not  do not  the  result  in  need be  do the  worry  about  other  as  a i f  justi-  hand,  other  have  rights, con-  or perhaps  even  them c o n s i d e r a b l e  work  no f u r t h e r  justification  action not  other  abilities  need  incompe-  grounds, he  of  than  itself  when an  on p a t e r n a l i s t i c  requires  of  such  simply unnecessary  act  need,  And  overridden by  paternalism w i l l  interfered with  the  or whatever.  they  the  incompetents w i l l  incompetent's  not  the  jump out  on t h e  after  w i l l  do  If  feel  a broken leg,  who l o o k  the is  easily  they  w i l l have  to  have t o If,  abilities  ways.  window as w e l l  can be  there  then  eat,  of  r e q u i r e d when  they  right  then permanent  a permanent  do o r n o t  whenever  so,  out  are  any  range  that  such people  prima facie  they  own g o o d ;  being  then  t h e n we  certain  relevant  the  those  rate,  the  require  f u l l  s u c h a way  i n v o l v i n g them.  so might  Consent,  decision to  possess.  to  in  do n o t  have the  them as  themselves  true,  such that  doing  interference was  cases  so would cause  and a n x i e t y .  i t  rights  suggestion i s  be  do  true  they  require  override  is  scratch  have these  w i l l  down i n  competent  suggestions  paternalism in  doing  or they  watered  desired to  latter  the  —  f o r which  for which they  variety,  right  the  that  those  would not  don't  fying  the  lack  those  same c o n d i t i o n s t o  these  window i f  that  —  h e l d b y p e o p l e who a r e  former  but  rights  rights, but  require are  action  a b i l i t i e s they  action be  of  when  doesn't  79 These phical as  to  are  arguments which  ation  of  towards  Some a n i m a l s I  mere  think,  fledged  conjectures  t o back them up,  them might be the  (at  latter, least  have a c t i o n action  rights  could be  w o u l d make scale  of  the  the  sliding  scale  to  at  go f o r  so might be  the  treating  i f  right  i f It  i t  and i t  the  r e a s o n why  ride  he  horse  we w e r e t o is  also  So,  refuse  true,  I  i n worms  for  horse  go o u t s i d e  to  think,  is  having  i f  prima facie as  know, to  him  that  theirs And  abilities  to  sliding  right  no a c t i o n  a horse right  But, is  that  incompetent  rights might  not  care  a  down  does  we w o u l d l i k e  and there  the  which matches  we t a k e  do so.  do,  f u l l -  some k i n d o f  t h e n we w o u l d b e  let  the  action rights which  such f a c t s  the  stage)  rather  essential  inclin-  animals.  incompetents.  instance,  his  intuitions  on  f u l l - f l e d g e d ones  m a n n e r we  do s o ,  are  people;  the lower a n i m a l s ,  trails  hurt  wants to  should not  there  have p r i m a f a c i e  simply by  won't  think they  certain  philoso-  d o h a v e some  evolutionary  of the  from the  i n the best  clear  from competent people,  result  up t h e  I  stage  w i t h my v i e w s  competent those  to  rights  easily.  overridden  trails,  hand,  a  don't  lack  this  have any  certain  Perhaps  animals,  horses  overridden f a i r l y  horse,  they  This might  while  I  are  abilities  action  a l l .  whatsoever,  want t o  but  at  However, f i t s  above a  much as  higher of  i t  possessed by  relevant  to  be  those  same:  haven't  n o r do I  because  them f u l l - f l e d g e d .  people,  none  the  I  correct.  rights,  would be watered-down reason  —  not  to  of to  on t h e  absolutely  i n f r i n g i n g on  do  the go  up  other no his  out.  viewing  the  rights  of  incompetents  80 as watered-down with a  Tooley's  small  versions  analysis  sub-set  of  of  action  for  rights  for  the  to  of  the  rights  rights  form of  to  Section  have  competents  while  that  conditions which  summary I  have  facie  right  to  p e r s o n who  do t h e  thing  the  jointly  This the  are  same  necessary  analysis  would  sufficient for  tic  i m p l i c i t l y or e x p l i c i t l y ,  given  upon r e c e i p t  of  a necessary in  cases  been  information or consent for  show how t h e  is has  i t  either  belongs  before  information or  condition for  those  has  guidelines  relevant  i f  "warped"  in  is  certain  deciding the theory  I  I  to  or the  only  It  offer  likelihood of  in  a  this  the  is  need has  a  central the  fullcore  ways,  For those a number o f  consent  a logical  a l s o be  lacks cases  to  error,  sufficient the  relevant where  conditions  subsequent consent.  applies  of  paternalis-  disposition to  w i l l  of  the  forthcoming because  relevant  have developed  are  recognition of  making a l o g i c a l e r r o r . not been given  If  or after  justification.  where consent  acts  interfered with  in question.  consent,  lation.  form of  being  then  act,  i.e.  is  right-holders,  I  abilities  paternalistic  right,  vious  condition for  have  remaining b a s i c a l l y the  are  fledged prima facie  subject  they  right.  argued t h a t  j u s t i f i c a t i o n where the  except  better  6.  In  is  f i t s  some r e v i s i o n .  certain  The  have,  suggestion that  require  analysis  rights.  an a c t i o n  the  adding another  specifying  possession of these  creature  that  would  (Tooley's  receive)  then be two necessary  prima  those  rights,  action  would probably take class  of  paternalistic  preas  Finally legis-  Footnotes f o r Chapter 3 1. John Rawls, A Theory of Justice (Cambridge, Massachusetts: Harvard University Press, 1971)., pp. 249 - 250. 2. Michael Tooley, i n the Correspondence, Philosophy & Public A f f a i r s . Vol. 2, No. 4 (Summer 1973), PP. 419 3.  Tooley, pp. 426 - 427.  4.  Rawls, p. 426.  82  Bibliography-  Brown, D. G. "The Rights of Children." No. 17 ( A p r i l 1971), pp. 8 - 20. Donaldson, David. Dworkin, Gerald. 84.  The Journal of Education.  "Fathers and Sons." unpublished paper. "Paternalism." The Monist. Vol. 56 (1972), pp. 64 -  M i l l , John Stuart. Utilitarianism. Liberty and Representative Government. Everyman's Library. New York: Dutton, 1910. Rawls, John. A Theory of Justice. Cambridge, Massachusetts: Harvard University Press, 1971. Tooley, Michael, i n the Correspondence. Philosophy & Public A f f a i r s . Vol. 2, No. 4 (Summer 1973), PP. 419 - 432.  

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