coons_c_weber_m_eds_paternalism_theory_and_practice

drugs or the possession of small quantities, and no criminal penalties for the sale of sex. Drugs are legalized, in contrast, when there are no criminal penalties for manufacturing or selling drugs, or possessing large quantities of them. And prostitution is legalized when there are no criminal penalties for owning or operating a brothel or escort service, or for working as a paid agent for sex work, or for paying anyone who’s reached the age of sexual consent and legal employment for sexual services. The criminalization of drugs and prostitution violates self-sovereignty in violating the prohibition principle, but the non-legalization of drugs and prostitution does not.

The choice to use illicit drugs involves important forms of discretionary control over one’s own mind and body. The recreational use of LSD, for instance, makes possible unusual and enjoyable perceptual experiences that would otherwise be unavailable. The recreational use of heroin makes possible intense feelings of euphoria that, according to some users, no other drug provides. Other drugs provide ways to relax and control our moods in ways that are otherwise unavailable. Control over our mental experiences and our moods is a very important form of control over our minds. Furthermore, the choice to ingest a substance, or snort it, smoke it, or inject it, involves an important form of discretionary control over our bodies. In most instances recreational drug use harms no one and poses no significant risk of harm. This is true even of so-called “hard drugs.” Therefore, in some instances at least, the reasons for a person to want to use drugs recreationally outweigh the reasons for anyone to want him not to use them. It follows that the government violates self-sovereignty in prohibiting recreational drug use.

It doesn’t follow, though, that the government violates self-sovereignty in prohibiting the manufacture and sale of drugs or the possession of large quantities. This is because the freedom to manufacture and sell drugs and the freedom to possess large quantities do not involve important forms of control over one’s own mind and body – certainly not in the way the freedom to use drugs does. So in prohibiting the manufacture and sale and possession of large quantities, the government does not violate the prohibition principle. Non-legalization might still violate the opportunity principle because the choice to use drugs involves important forms of control over mind and body, and this policy reduces the opportunities to make this choice. But whether this policy violates this principle depends on whether the reasons for someone to prefer his situation when drugs are legalized have much greater weight than anyone’s reasons to prefer their situations when drugs are not legalized, and this might not be the case.

Suppose that if drugs are legalized, they will be much less expensive and much more easily available, and that drug use will therefore increase dramatically, and with it drug abuse, proportionately. In this environment, the life prospects of some will be significantly worse than they would otherwise be: Young people are much more likely to abuse drugs in this environment, with permanent negative consequences for their emotional development, educational achievement, and development of job skills. Suppose, then, that the reasons for these young people to want drugs not to be legalized do not have much less weight than the reasons for drug users, retailers, manufacturers, and members of large pharmaceutical and liquor companies to want drugs to be legalized. This is not implausible because drug users can acquire drugs and legally possess them, and retailers and manufacturers and members of large corporations can succeed in business, even if drugs are not legalized. But on these assumptions, nonlegalization does not violate the opportunity principle, and so does not violate self-sovereignty.

Similar points may be made about prostitution laws. Discretionary control over how to use one’s sexual organs, whether to use them, under what circumstances, and whether and how to touch the sexual organs of another consenting adult are important forms of discretionary control over one’s own body. The decision to have sex in exchange for money is an exercise of this form of discretionary control. It involves discretionary control over one’s sexuality, and is therefore a particularly important form of discretionary control over one’s body. It might be objected that laws that prohibit prostitution prohibit only the receipt of payment for sex, and so do not intrude on a person’s control over her body, because they leave her free to do whatever sexual acts she wishes with any consenting adult she chooses, just not for pay. The decision to exchange sex for money, however, is a decision to engage in a particular kind of sex act – a commercial sex act – that has distinctive emotional, social, and expressive significance. Like tattooing and body piercing, particularly genital piercing, prostitution is a way in which a person expresses her attitude towards her body, her sexuality, her genitals, and creates a distinctive relationship between herself and her body and her sexuality. It expresses a distinctive view about the value of her sexuality: that it is properly employed to make money. Laws that prohibit prostitution thus deprive a person of control over her sexuality by depriving her of discretion over whether to relate to herself and to use her own sexuality in this way. In many cases, a commercial sex act causes substantial harm to no one, and in these cases the substantial and evident reasons of welfare to want a person not to make

this choice do not have much greater weight than the reasons for her to make it. It follows that the government violates self-sovereignty in criminalizing the sale of sexual services.

It doesn’t follow, though, that the government violates self-sovereignty in prohibiting the operation of brothels and escort agencies or working as a paid agent for sex work. This is because the freedom to operate a sex business such as a brothel or escort service or to work as a paid agent for sex work does not involve an important form of control over one’s own body – certainly not in the way the freedom to sell sex oneself does. So the nonlegalization of prostitution does not violate self-sovereignty in violating the prohibition principle. This policy might still violate the opportunity principle, because the choice to engage in sex work involves an important form of discretionary control over one’s body and because prohibiting brothels and escort services reduces opportunities for sex work. But whether this policy violates this principle depends on whether the reasons for someone to prefer his situation when prostitution is legalized have much greater weight than anyone’s reasons to prefer their situation when prostitution is not legalized, and this might not be the case.

Suppose that if prostitution is legalized in the US, many more young people will start doing sex work here, because with legalization there will be more incentives to start, more opportunities to do this work, and it will be easier to make money at it once one has started. Suppose, though, that, for most of those who do sex work for any significant length of time, it is a bad experience, one that leaves them with lasting feelings of self-hatred, low selfesteem, and difficulty in forming and sustaining healthy, intimate relationships. On these assumptions, some young people will be at a substantially higher risk of adopting a self-destructive lifestyle if prostitution is legalized. Suppose, then, that the reasons for these young people to prefer their situations when prostitution is not legalized do not have much less weight than the reasons for prostitutes, clients, personal managers, and those in the adult entertainment business to want it to be legalized. This is not implausible because non-legalization does not prevent those who want to sell sex from doing so, and it does not prevent those who want to buy sex from doing so either, and those in the adult entertainment industry can make money in other ways. But on these assumptions, non-legalization does not violate the opportunity principle, and so does not violate self-sovereignty.

These arguments for non-legalization rest on many assumptions that might be questioned, but my aim here is not to defend non-legalization. It is to show instead how non-legalization might be consistent with selfsovereignty even if the criminalization of drugs and prostitution is not.

Although non-legalization reduces opportunities to use drugs or to sell sex, a reduction in opportunities to make a certain kind of choice does not in itself constitute a violation of self-sovereignty, even if these choices involve important forms of control over mind or body. Laws against theft, for example, which prohibit me from taking the drugs I want from a pharmacy, reduce my opportunities to take these drugs, but they do not thereby violate my self-sovereignty. A government policy violates selfsovereignty only if it violates the right of self-sovereignty, and, in my view, the right of self-sovereignty is constituted by the prohibition principle and the opportunity principle. So if a government policy does not violate either of these principles, then, even if this policy limits a person’s selfsovereignty in some way, it does not violate self-sovereignty. From this it follows that non-legalization might be consistent with self-sovereignty even if this policy is paternalistic.

Characterizing a government policy as paternalistic is problematic in ways that often go unnoticed. To claim that a policy is paternalistic is sometimes to claim that the policy was motivated by a desire to benefit people in ways they do not want. The term is also used, however, to express an objection, and it is odd to think that a policy – understood simply as a system of rules – is objectionable in virtue of the motives of those who adopted it. Suppose a policy is necessary to protect people’s rights, but was adopted from a questionable motive. Is it objectionable, then, for the government to have this policy? Clearly not, because the policy is necessary to protect people’s rights. So it seems that the questionable motives that cause a government to adopt a policy cannot entail that the policy is objectionable.

This should lead us to wonder whether, if paternalistic policies are objectionable, they are objectionable, not in virtue of their motivation, but because the right sort of justification for them does not exist. I think this is what Mill had in mind when he wrote, “His own good, either physical or moral, is not a sufficient warrant.” He was suggesting that it is wrong for the government to limit a person’s liberty against his will unless this policy can be fully justified as protecting others from harm. On the other hand, we can’t define a paternalistic policy as any policy that cannot be justified as protecting others from harm, because this is true of every unjustifiable policy, and we don’t want to say that every unjustifiable policy is paternalistic, regardless of the motives of those who adopted it. So it seems an adequate definition of paternalism must refer both to motive and to the absence of the right kind of justification.

Here is one definition of this kind: A government policy is paternalistic if (a) it is adopted as a result of government officials wanting to benefit some group of persons, (b) one or more of these persons does not want the government to adopt this policy, or does not want to be benefited by the government in this way, and (c) the policy cannot be justified without counting in its favor its benefit to one or more of these persons who do not want the policy or do not want to be benefited in this way. I don’t claim this is the only correct definition of paternalism because people have different intuitions about what policies are paternalistic, but I will stipulate this definition here to make a simple point about selfsovereignty and paternalism.

Suppose that the non-legalization of drugs and prostitution are paternalistic policies in this sense. Suppose, in other words, that the nonlegalization of drugs cannot be justified without counting its benefits to some people in reducing their risk of drug abuse who do not want to be benefited in this way, and that it is motivated by a desire to benefit such people. And suppose that the non-legalization of prostitution cannot be justified without counting its benefits to some people in reducing their risk of beginning and continuing a self-destructive pattern of sex work who do not want to be benefited in this way, and that it is motivated by a desire to benefit these people. Even so, the policies of non-legalization are compatible with self-sovereignty if they are compatible with the prohibition and opportunity principles. So although the paternalistic criminalization of drugs and prostitution violates self-sovereignty, paternalistic non-legalization might not. This is because, on the assumptions just made, non-legalization would not violate the opportunity principle even if paternalistic.

the priority of self-sovereignty

What I’ve shown so far is that it’s possible to characterize the boundaries of self-sovereignty without adopting a general principle of anti-paternalism. Clearly, though, this is not enough to defend my theory as an alternative to Mill’s. It is necessary to show, too, that in accepting this theory we value self-sovereignty properly.

To believe that self-sovereignty is important is to believe, among other things, that it has priority over other values. The theory I propose reflects this priority. For one thing, it holds that only considerations of welfare or self-sovereignty itself can warrant the government in prohibiting a choice that involves an important form of discretionary control over mind or

body. So, considered as a reason against policies that prohibit choices of this kind, self-sovereignty trumps all values other than welfare and selfsovereignty itself.

This theory also gives self-sovereignty priority over welfare in at least three ways. First, if a reason of welfare to want a choice not to be made is not substantial, then the fact that this choice involves an important form of control over mind or body is a reason against prohibiting this choice that trumps this reason of welfare to prohibit it. Second, even if a reason of welfare to want a choice not to be made is substantial, if this reason is not evident, then the fact that this choice involves an important form of control over mind or body is a reason against prohibiting this choice that trumps this reason of welfare to prohibit it. Finally, even if a reason of welfare to want a choice not to be made is substantial and evident, if this reason does not have much greater weight than everyone’s reasons to make this choice, then the fact that this choice involves an important form of control over mind or body is a reason against prohibiting this choice that trumps this reason of welfare to prohibit it.

Suppose that prohibiting drinking would significantly reduce harm in the aggregate and also significantly reduce the risk to any individual of being harmed, by significantly reducing heavy drinking, and so by reducing the violence, property crime, and accidental injury that is highly correlated with it. The choice to drink alcohol nonetheless involves an important form of control over one’s body, and, in virtue of the psychotropic properties of alcohol, over one’s mind as well. So, according to the prohibition principle, the government is not permitted to adopt this policy unless (a) for every choice to drink there is a substantial and evident reason of welfare to want this choice not to be made that has much greater weight than anyone’s reasons to make it, or (b) this policy is necessary to ensure that someone has adequate control over his own mind or body, neither of which is the case. If a person enjoys a drink at home and doesn’t have a drinking problem, then, in most cases at least, the reasons for this person to have a drink at home outweigh anyone’s reasons to want him not to have it. This is true even if a law prohibiting drinking were to reduce everyone’s risk of harm. This is because it is not the case that each time a person has a drink this poses a significant risk of harm to anyone. Furthermore, prohibiting everyone from drinking is not necessary to ensure that anyone has adequate control over his own mind or body. So, even if a policy of prohibiting drinking would reduce individual risk of harm and increase welfare in the aggregate, it is ruled out by the prohibition principle.

This example illustrates how self-sovereignty has priority over welfare, but it does not have absolute priority. When the evident and substantial reasons for a person to want a choice not to be made do have much greater weight than anyone’s reasons to make it, then, even if the choice involves an important form of discretionary control, the government is permitted to prohibit this choice. Self-sovereignty is an important value, but it is not the only one. Any defensible theory of self-sovereignty must therefore allow considerations of welfare to outweigh self-sovereignty when these considerations are very weighty, as the theory proposed here does.

Self-sovereignty also does not have priority over itself. If it’s necessary to prohibit a choice in order to ensure that someone has adequate control over his own mind or body, then the government may prohibit this choice even if it involves an important form of discretionary control over mind or body. This seems true, for example, of laws that prohibit adults from having sex with legal minors. In general, we think the choice to have sex with another consenting person involves an important form of control over one’s body, and we do not think this importance generally varies with the age of the person who consents. However, children and young adolescents commonly lack the emotional and material independence necessary to resist manipulative pressure from adults to have sex with them, particularly when those adults are responsible for their care. Furthermore, if adults are permitted to have sex with young people, some of these adults, due to their greater knowledge, conventional authority, power, and wealth, will come to control the sexuality of some of these young people. For this reason laws that prohibit adults from having sex with legal minors are necessary to ensure that young people have adequate control over their own bodies. This doesn’t mean that harsh penalties for statutory rape are warranted, but it does mean that it makes sense for the government not to treat the agreement of a legal minor to have sex with an adult as legitimating the interaction, and so to adopt the legal fiction that minors “cannot consent.”

So far I’ve argued that we properly value self-sovereignty in accepting the theory that I’ve proposed because this theory gives self-sovereignty the right degree of priority over other values. One might still wonder, though, whether self-sovereignty will be adequately protected if the government correctly observes this theory. Not surprisingly, I think it will be. This is because when I apply the prohibition and opportunity principles to government policy, relying on my own judgments about what choices involve important forms of discretionary control over mind or body, relying on my own judgments about what reasons of welfare are substantial and evident, relying on my own judgments about what reasons to want a

choice not to be made have much greater weight than the reasons to make it, relying on my own judgments about what policies are necessary to ensure that everyone has adequate control over their own minds or bodies, and relying on my own judgments about what reasons to prefer one’s situation without a policy have much greater weight than the reasons to prefer one’s situation with it, it seems to me that the theory protects selfsovereignty to an adequate degree. Consequently it seems to me that if the government were to apply this theory correctly – on the basis of judgments that I take to be correct – self-sovereignty would be adequately protected.

Others will of course make different judgments about these matters, as well as different judgments about when self-sovereignty is adequately protected. So in the end each person must assess for himor herself whether self-sovereignty would be adequately protected if the government were to apply this theory correctly. But I will hazard the following conjecture: If you understand the theory that I’ve proposed and you apply it by relying on your own judgments about all the relevant matters just listed, then it will also seem to you that self-sovereignty would be adequately protected if the government were to apply this theory correctly. In other words, it will seem to you that a government would violate self-sovereignty in following this theory only if this government were to apply this theory on the basis of judgments that seem incorrect to you about what choices involve important forms of control over mind or body, what reasons of welfare are substantial and evident, what reasons have much greater weight than others, and so on.

anti-paternalism

The title of Mill’s On Liberty suggests that paternalism is wrong because liberty is valuable. This is unconvincing because some of the important goods that give us reason to want liberty also give us reason to want our liberty restricted. Negative liberty – freedom from interference, or being at liberty, legally, to do something – has great instrumental value. When we are at legal liberty to do things, this gives us control over our minds, our bodies, and our lives; it provides opportunities for deliberation, reflection, and personal development; it provides opportunities for valuable relationships and to achieve worthwhile goals; it provides opportunities for enjoyable, satisfying, and fulfilling experiences. These are all good reasons for the government to respect our liberty. These goods, however, also provide reason for the government to restrict our liberty, because we might also lose these goods as a result of exercising liberty. We would lose

Assuming, then, that people reach the maturity of their faculties in the relevant sense only once they are good at visualizing future consequences and assessing risks, and don’t discount their future welfare by too much, and are not imprudent or reckless, and are not unduly influenced by peers who don’t care much about them, this addresses the question. There’s no reason, though, to believe that everyone reaches maturity in this sense at the age of legal adulthood, and it makes little sense to hold that although paternalistic reasons can justify the government in limiting the liberty or opportunities of someone under sixteen, or eighteen, or twenty-one, paternalistic reasons can never justify the government in limiting the liberty of someone who’s older.

Continuing with the motorcycle helmet example, it makes little sense to hold that although paternalistic considerations can justify a law requiring those under eighteen to wear a helmet when they ride a motorcycle, these reasons cannot justify the government in requiring anyone older to do so. This is because the considerations that justify requiring those under eighteen to wear a helmet apply with roughly equal force to some who are older than eighteen. Young people, especially young men, are commonly reckless. They fail to think clearly about the potential risks of their conduct and do not take sufficient care of their physical safety. They are also generally less experienced in operating motor vehicles. These facts do not immediately cease to be true on a person’s eighteenth birthday. So it makes little sense to hold that, although paternalistic reasons can justify the government in requiring a person to wear a helmet the day before his eighteenth birthday, these reasons are insufficient to justify this requirement the day after.

This is not to deny that the government is sometimes justified in adopting a specific age at which people are legally permitted to do something, ride a motorcycle without a helmet, for example. The point is that if this age demarcation is justifiable, it is not because it is exactly at this age that paternalistic interference ceases to be justifiable. If a paternalistic policy is justifiable that requires all motorcyclists under eighteen to wear a helmet, then a paternalistic policy that requires all motorcyclists under the age of eighteen and one day is justifiable too. As people grow older, however, a number of things change that are relevant to the justification of helmet laws. First, they have less and less time ahead of them, and so less and less time to lose as the result of a serious accident. Second, their decisions are based on more knowledge and better reasoning. Third, they become more prudent and safety-conscious. Fourth, they become more skilled at driving. Finally, they have less and less time ahead