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than if he persists. I try to identify some scheme that will achieve the desired outcome. Suppose that the only scheme that will succeed involves disutility, hardship, or deprivation of degree P. No one would think that I am justified in forcing Bill to undergo P in order to stop him from boxing if the disutility of P is greater than the disutility of boxing. But if I am not permitted to inflict P upon Bill in order to induce him not to engage in an activity that is bad for him, how could the state possibly be justified in inflicting P upon Bill to achieve the same end? The result is unchanged if I happen to have several friends or brothers who box. Suppose Bill, Tom, Dick, and Harry all box even though it is bad for them to do so. I threaten to impose P on each of them if they persist. Tom, Dick, and Harry desist, but Bill persists. Again, I claim that I cannot be justified in inflicting P upon Bill to achieve my paternalistic objective. That is, I cannot look Bill in the eye and say to him (truthfully): “I am punishing you for your own good.”
In assessing whether an instance of paternalism is justified, we cannot neglect the quantum of disutility, hardship, or deprivation needed to reach our paternalistic objective. Because this feature should be taken into account in attempts to justify paternalism, we must always specify the details of the means to achieve our goal before we proclaim it to be justified. I maintain that penal paternalism is almost always unjustified according to this test. That is, almost no type of conduct that sane adults are voluntarily inclined to perform is so destructive of their wellbeing that they are better o not engaging in it when they are punished with enough severity to induce them to desist. Perhaps a few counterexamples to this generalization can be found. Consider a promoter who o ers enormous sums of money to induce persons to engage in gladiatorial contests to the death. I concede that the welfare of combatants would probably be enhanced by their imprisonment. Few examples in the real world, however, are comparable. Since paternalists should be unwilling to impose a cure that is worse than the disease, criminal paternalism will rarely be justified.
Again, drug proscriptions illustrate my general point. Legions of writers have described the counterproductive consequences of drug proscriptions on communities, so I will not rehearse that topic here. Instead, I confine myself to those consequences that befall drug users themselves. It may be bad for persons to use cocaine, for example, but it is even worse to resort to punishment to try to induce them to stop. When punishments are severe, their gains typically are not worth their costs for the persons on whom they are inflicted. But when punishments are not severe, they rarely create
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adequate incentives for compliance and thus fail to improve the welfare of the persons coerced. The immediate rewards of cocaine will swamp the threats of punishment – especially when punishment is lenient, uncertain, and distant. An acceptable set of constraints to limit the imposition of the criminal sanction requires that penal laws must be reasonably e ective in attaining their objectives. A criminal law motivated by a paternalistic end will fail to satisfy this condition if it makes the o ender worse o , all things considered. I doubt that paternalistic rationales will justify state punishment in more than a handful of cases.
Here again, paternalism in personal relations is unlike paternalism in law. Imagine a paradigm case of a father who attempts to induce his stubborn daughter to eat her vegetables. What strategies are available to him? Clearly, a severe beating or a lengthy term of confinement in her closet would cause her greater harm than the lack of vegetables in her immediate diet. Thus, the father should resort to less extreme measures; he might forbid her to eat dessert, prevent her from playing video games, or banish her to her room for a short period of time. These mild sanctions, especially when imposed certainly and immediately, are more likely to result in her long-term benefit. If the father were to invoke more draconian devices, we would have good reason to infer that he did not really have his daughter’s best interests at heart. The penal law, by contrast, rarely has such sanctions available to it. Severe measures, such as imprisonment, are almost certain to be more harmful to persons than the conduct for which they are imposed.
Hurd is no more persuaded by this latter argument than by the former. She claims to find my argument puzzling for two reasons. First, it fails to account for what she calls the “dentist principle,” that is, for the possibility that short-term pain will yield long-term gain.13 The relevant question, she is correct to allege, is not whether Bill is better o not boxing in jail than boxing out of jail over the course of a single year. Instead, the question is whether it would be better for Bill to live a lifetime without boxing at the cost of one year in jail than to live a (perhaps reduced) lifetime of regular boxing with no time in jail. Given the extraordinary toll that boxing inflicts on health and longevity, she thinks it would be plausible to suppose that if Bill’s predilection for boxing could be cured by a year in jail, it would be in his long-term interest to endure the sentence in much the same way that it is in his long-term interest to endure regular but highly unpleasant dental work. In short, she speculates that jail might eliminate a
13 Ibid., 54.
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great many risky activities and thus cause an increase in the lifetime amounts of health, wealth, and happiness of the person coerced.
I am prepared to bet that I am right and Hurd is wrong about the outcome of this empirical question. We need accurate data about the risks of boxing. Its risks may never materialize, but the harms of prison are virtually certain. Moreover, I doubt that a year in prison would cure (and would probably fuel) Bill’s passion for boxing. But I admit that I have no clear idea how to resolve this empirical disagreement – although I hasten to add that I assign the burden of proof on such matters to the state. I did allow that some types of conduct – like gladiatorial contests to the death – might be so risky that persons would be better o if prevented by punishment from engaging in them. If Hurd is correct about boxing, then my final principle would allow a paternalistic law to punish this activity. I do not regard this concession as a reductio of my exercise. I continue to believe that empirical judgments are needed to apply a theory of criminalization generally – and to pass judgment on paternalistic interferences in particular – however di cult it may be to make the calculations.
Hurd o ers a second reason to be puzzled by my contention that punishment is typically counterproductive when employed for paternalistic reasons. Suppose that boxing is a public wrong the state has a substantial interest in preventing, and that punishing Bill will reduce the incidence of boxing on the part of many others who would have emulated him. If so, she asks, why would punishing Bill be counterproductive?14 I answered that punishing Bill in order to increase general deterrence does not promote the interests of Bill himself; we are not justified in treating him paternalistically when he is punished to deter others. But Hurd o ers two reasons why paternalists need not argue that punishment must be in the intrinsic interest of the person punished in order for it to be both paternalistic and legitimate. Theorists who subscribe to what she calls “consequentialist-paternalism” seek to maximize the protection of individuals from their own risky choices. If punishing Bill dissuades a great many others from choosing to box, she concludes that punishing Bill is both paternalistic and (prima facie) legitimate. But even if we are not consequentialist-paternalists who are willing to sacrifice the interests of one individual in order to protect others, she denies that paternalists must insist that punishment need be intrinsically good for the person punished. Paternalism, she insists, need
14 Ibid., 55.
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only be instrumentally valuable. More specifically, what must be in the interest of prospective boxers is the elimination of a temptation to engage in an activity that risks their welfare. As long as punishment accomplishes this goal, it is aptly deemed to be paternalistic, and, at least prima facie, legitimate. Hurd finds nothing in my argument about the self-defeating nature of punishment for paternalistically motivated crimes that rebuts her contentions. As a result, she doubts that my final constraint more convincingly reduces penal paternalism than any of its predecessors.
Hurd’s criticisms are worrisome, but three responses are available to me. For openers, I see no more reason to accept consequentialism in this context than elsewhere in moral and legal theory, so I regard “consequentialist-paternalism” as a non-starter. The entire debate is changed if we allow consequentialist trade-o s in endeavors to justify punishment, paternalistic or otherwise. But I cannot possibly defend these sweeping claims here. In addition, at no point do my thoughts about the counterproductive e ects of penal paternalism depend on whether punishment is intrinsically or instrumentally good for the person punished. Instrumental goodness is goodness enough. Finally, like desert itself, a justification of punishment must be personal; we cannot refer to e ects on others to justify punishing particular individuals. My example of Tom, Dick, and Harry is designed to support my conclusion that we are not justified in treating Bill paternalistically if we punish him to deter others, even if we succeed in dissuading them from engaging in an activity that unquestionably is bad for them.
Perhaps my arguments are less persuasive than I hope and the foregoing debate ends in a stalemate. In fact, however, none of these rejoinders addresses what I take to be Hurd’s greatest worry, and we might as well get to the heart of the matter. She thinks that reservations about penal paternalism that derive from constraints that apply to all criminal laws are too “complicated” and “empirically dependent.”15 I am more convinced than Hurd, however, that the case against penal paternalism is complicated and empirically dependent. At the end of the day, intuitions play a major role in assessing penal paternalism – or, indeed, all paternalism, both legal and non-legal. Paternalism presents a test of the relative merits of alternative approaches to criminalization, and I suspect that Hurd is antecedently persuaded that sound normative principles weigh heavily against all paternalistic interferences with sane adults. She believes we should reject penal paternalism because it is paternalism, not because
15 Ibid., 53.
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of the contingent considerations I invoke. As I indicated at the outset, however, my own intuitions about paternalism are more ambivalent. I do not regard it as an objection to a theory of criminalization that it is complex and empirically sensitive and thus might be compatible with some instances of penal paternalism.
chapter 3
Self-sovereignty and paternalism
Peter de Marneffe
the scope of self-sovereignty
Mill writes that the object of On Liberty is “to assert one very simple principle . . . that the only purpose for which power can be rightfully exercised over any member of a civilized community, against his will, is to prevent harm to others. His own good, either physical or moral, is not a sufficient warrant.”1 Mill concludes this famous paragraph by writing: “Over himself, over his own body and mind, the individual is sovereign.”
The metaphor of sovereignty over self is powerful, and it captures an essential aspect of Mill’s liberalism. Each of us is entitled to govern the domains of our own minds and bodies, free from coercive intrusion. We are entitled to determine what takes place in our minds, what happens to and in our bodies, and how to use our minds and bodies for our own benefit. We are entitled to determine what to think about, what to read, what to experience in art and music, what moods to try to be in, what to daydream, what imaginary conversations to have, how to pray, whether to pray at all, what to reflect on and wonder about. We are entitled to determine what to put into our bodies and how to use our bodies for health, work, and pleasure, to determine what to eat, how to exercise, how to care for our personal hygiene, what positions to sleep in, what sexual acts to consent to, and whether to have sex at all. Obviously, though, we don’t have the right to do whatever we want with our minds and bodies, regardless of its impact on others. We don’t have the right to jump out of a window regardless of who might be below. If there were a mind-altering drug that turned us into clever and elusive serial killers, we wouldn’t have the right to take it. Self-sovereignty has limits. What are they?
Mill thought he had a good answer: We are entitled to do whatever we want with our own minds and bodies, free of coercive interference by
1 Mill, On Liberty, 9.
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others, unless prohibiting or preventing us from doing what we want to do can be justified as protecting others from harm. Here I give a different answer, one that does not have a general principle of anti-paternalism at its core. I think Mill was right to identify self-sovereignty as a very important value, but I think he was wrong to oppose paternalism so vigorously. So I want to explain how it is possible to respect self-sovereignty and to draw its boundaries in a plausible way without endorsing a general principle of anti-paternalism such as Mill’s harm principle. If it’s possible to respect self-sovereignty without opposing all paternalism, this eliminates one reason to think all paternalism is wrong.
If self-sovereignty were the same thing as self-ownership, it would be natural to think paternalism is incompatible with it. Self-ownership is the “attractive thought” that G. A. Cohen once saw at the core of Nozick’s libertarianism, which he stated this way:
The thought is that each person is the morally rightful owner of himself. He possesses over himself, as a matter of moral right, all those rights that a slaveholder has over a chattel slave as a matter of legal right, and he is entitled, morally speaking, to dispose over himself in the way such a slaveholder is entitled, legally speaking, to dispose over his slave.2
If we view ourselves as our own property, it makes sense to think we should be free to do whatever we want with ourselves provided our actions don’t harm others. But unlike Cohen I don’t find this thought attractive, partly because it licenses us to abuse ourselves in all the ways the law once permitted slaveholders to abuse their slaves in the West Indies and the antebellum South, and partly because it suggests that a person’s right to control his own mind and body is based on a relationship to himself that is fundamentally disrespectful in the way the relationship between slaveholders and slaves was. The idea of self-sovereignty, however, is not identical to the idea of self-ownership – because the idea of sovereignty is not identical to the idea of ownership – and so does not license the same kind of abuse. The possession of political sovereignty, whether by a monarch or by the people as a whole, is conditional upon its exercise falling within certain limits; it does not authorize the government to abuse its people the way slaveholders were once legally permitted to abuse their slaves.
Mill’s aim in using the metaphor of sovereignty was presumably to suggest that the government ought to respect the autonomy of each individual unless he poses a threat to others, just as a nation ought to
2 Cohen, “Self-Ownership, World Ownership, and Equality,” 109.
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respect the sovereignty of another nation unless it poses a threat to another nation. But the government of a sovereign nation is not entitled to do anything it wishes to its own people, free from outside interference. If a government starts exterminating some of its people, even with majority support, it is permissible for other nations to intervene to protect them. So if national sovereignty is the proper model for self-sovereignty, it seems a government might likewise be justified in intervening, even against a person’s wishes, to stop him from exterminating himself, at least in some circumstances. The theory of self-sovereignty proposed here is intended to reflect this thought.
This theory consists of two principles. The first, which I call the prohibition principle, is this: A government violates a person’s sovereignty over himself in prohibiting him from making a choice if and only if (a) this choice involves an important form of discretionary control over his own mind or body, (b) there is no evident and substantial reason of welfare for someone (possibly him) to want him not to make this choice that has much greater weight than his reasons to make it, and (c) prohibiting this choice is not necessary to ensure that someone (possibly him) has adequate control over his own mind or body. A reason of welfare for A to want B not to make a choice is evident if and only if the information available at the time of the choice would justify A in accepting the proposition that constitutes this reason if A had this information. A reason of welfare for A to want B not to make a choice is substantial if and only if it identifies a way in which A is substantially worse off if B makes this choice, typically by being at a much higher risk of harm. Note that the relevant reasons for A to want B not to make a choice include only reasons grounded in information available at the time of the choice. Consequently, the unknown and unlikely fact that B’s action will, as it turns out, harm A is not, as I am understanding the notion here, an evident reason of welfare for A to want B not to make this choice. In contrast, the known fact that B’s choice will place A at a high risk of harm is an evident reason of welfare for A to want B not to make this choice, even if, as it turns out, A will not actually be harmed by this choice.
The second principle, which I call the opportunity principle, is this: A government policy violates a person’s sovereignty over himself in reducing his opportunities to make a choice if and only if (a) this choice involves an important form of control over his mind or body, and (b) the evident and substantial reasons of welfare for this person now to prefer his situation without this policy have much greater weight than anyone’s reasons now to prefer their situation with this policy in place. Again,
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a reason of welfare for a person now to prefer his situation without a policy is evident if and only if the information now available would justify him in accepting the proposition that constitutes this reason if he had this information. A reason of welfare for a person to prefer his situation without a policy is substantial if and only if it identifies a way in which he is substantially worse off as a result of this policy, typically by losing valuable opportunities or by being at a substantially higher risk of harm.
This theory of self-sovereignty permits more paternalism than Mill’s theory does. Suppose a policeman passes an isolated private residence belonging to someone he knows to live alone and to have no family. He notices a sign posted on a garage door that reads “Do not disturb, suicide in progress” and hears a car engine running inside. May he use force to open the garage, and remove the unconscious person he finds slumped in the front seat to prevent death from carbon monoxide poisoning, even if he has no reason to believe that anyone else is at risk? It seems obvious to me that he may, even though he would be intruding into this person’s private space for his own good and doing so against his stated will.
Consider, then, a government policy of allowing police to act so as to stop suicides in progress in situations like this one. In other words, the rules of proper police conduct permit police officers to act in ways that might otherwise count as assault, trespass, or destruction of property, without fear of criminal prosecution or disciplinary action, when they are warranted in believing that acting in this way is necessary to prevent someone from killing himself. This policy is paternalistic in permitting official actions that are paternalistic, but this policy does not violate selfsovereignty according to the theory proposed here.
An isolated action by a policeman to prevent a suicide does not amount to a legal prohibition of suicide, and so does not violate the prohibition principle. A government policy of allowing police to interfere in suicide attempts also does not violate the prohibition principle, because it involves no legal prohibition. Nor does this policy violate the opportunity principle. A policy violates the opportunity principle only if the evident and substantial reasons of welfare for someone to prefer his situation without this policy have much greater weight than the reasons for anyone to prefer his situation with this policy, which is not true in this case. Given the fact that most people who choose to kill themselves are not thinking clearly when they do; and given the fact that most people who fail in their suicide attempts are glad they failed; and given the fact that with death one permanently loses all the good things in life; and given the fact that if a person does not kill himself, there is a good chance that his anxiety and
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depression will pass and he will start to enjoy life again; and given the fact that if someone really wants to kill himself, he can always try again and succeed; and given the fact that this policy leaves open plenty of other opportunities to kill oneself, it would seem, to the contrary, that the reasons for people to prefer their situations when the police are permitted to interfere to stop suicide attempts have much greater weight than the reasons for anyone to prefer his situation when they are not permitted to do so. So this policy, although it allows paternalistic actions by the police, does not violate self-sovereignty.
In contrast, a blanket legal prohibition of suicide does violate selfsovereignty. The choice to kill oneself involves important forms of discretionary control over one’s mind and body. This is true at least in those situations where one can avoid mental agony or debilitating bodily deterioration in no other way. According, then, to my theory of self-sovereignty, the government may not prohibit suicide unless it is true that, for everyone who wishes to kill himself, there is an evident and substantial reason for someone to want this person not to kill himself that has much greater weight than his reasons to do so. This is not the case, because the good reasons for people to want to kill themselves sometimes outweigh anyone’s reasons to want them not to do so. Furthermore, prohibiting suicide is not necessary to ensure that anyone has adequate control over his own mind and body. So a law that prohibits suicide violates the prohibition principle.
drug and prostitution laws
This discussion of suicide shows that, although my theory of selfsovereignty permits some forms of paternalism, it rules out others. Furthermore, it warrants some of the same controversial policy conclusions that Mill drew from his theory of self-sovereignty. It suggests, for example, that recreational drug use and prostitution ought to be decriminalized, which Mill also believed. On the other hand, it allows some paternalistic drug and prostitution laws, on certain assumptions, and in this way is more tolerant of paternalism than Mill’s theory.
To explain this position, I will introduce a distinction between the criminalization of drugs and prostitution, on one hand, and the nonlegalization of drugs and prostitution, on the other. As I use the term, drugs are criminalized when there are criminal penalties for using drugs or for possessing small quantities. Likewise, prostitution is criminalized when there are criminal penalties for the sale of sex. Drugs and prostitution are decriminalized, then, when there are no criminal penalties for the use of