Paternalism refers to acting for the good of another person against their will or without their consent (most commonly by the law, but also in familial, educational, medical, and other contexts). To act in such away presumes that the person or persons who are interfering with the other’s actions are in a better position to know what is good for them than they are themselves. Paternalism is widely regarded as being restrictive to the liberty and autonomy of individuals, and for this reason it is often opposed. Liberals argue (to varying degrees) that rational agents should be free to act in any way they choose, as long as their actions do not harm others, even if their actions do harm themselves. Issues arise as to what constitutes harm, how far reaching one's actions are, and which actions are voluntary. Others argue that paternalism can be justified in certain instances, but not in others. For example, some act-utilitarians argue that if acting paternally brings about the greatest overall utility (or happiness) then it is justified, Mill being a notable exception in that he argues strongly against paternalism, seeing liberty as too great a trade off for welfare; in the long run, violation of liberties will not bring about the greatest utility. Others have argued that while interference to prevent physical or psychological harm (or bring about physical or psychological good) is justified, paternal interference in moral issues (that only affect consenting individuals) is not.
Paternalism can effect various spheres of life, be it financial (mandatory pension), moral (criminalization of prostitution), personal (prohibition of same sex marriage), health (banning of trans fats), psychological (withholding information for ones peace of mind), or physical (mandatory wearing of seat belts and helmets.
Background to paternalism
Paternalism (from the Latin word pater, meaning father) means literally to act like a father or treat another as a child. Its roots as a political term come from the idea that the structure of the state should mirror that of the family, with the king/ruler ruling his subjects as the father ruled his household, thus presuming that the state would act in the best interests of its subjects as a father would act in the best interests of his family, whether the subjects or family agree or not, as the father/state are wiser than their subjects.
Until fairly recently, paternalism was not only popularly accepted, but endorsed by most philosophers.
In Republic, Plato describes a "philosopher king" who is to have absolute power, as only one highly trained in philosophy is wise enough to rule his "flock," and this philosopher king was to be benevolent despot who acts for the good of his subjects. Plato endorsed the view that the people should not only be protected from each other, but also from themselves, not only physically and psychologically, but also morally, as "immoral" behavior, even if it does not harm others, causes a disorderly soul, which is ultimately destructive to society. Plato thought it was the duty of the state to mold its subjects into virtuous citizens, into the best they could be, much as a father would raise his children.
Aristotle, too, believed in a paternal society, but his ideas were based on the belief that there exists a natural hierarchy. That just as plants are subordinate to nature, animals are subordinate to humans, women, to men, slaves to citizens, and children to adults, and that within oneself, the body is under the authority of the soul (mind). Aristotle thought then that it was only natural that people should be under the authority of some kind of government that acted in their best interests, although he advocated a greater amount (than Plato) of political involvement and power on the part of the subjects, and was weary of the absolute power ascribed to Plato’s philosopher king. However, like Plato, Aristotle believed that the state should not only protect people from physical harm, but moral harm as well, and that in order for people to be happy they need to be virtuous, and that it is the duty of the state to guide and enforce virtuosity.
Though suited to almost any kind of political system, in the post Platonic-Socratic era, the concept of benevolent, paternal rule was mostly endorsed by the prevailing monarchies of Europe, who often made the added claim that they were chosen by god, thus legitimising their superior wisdom and right to rule. This context of paternal, Christian rule set the stage for (western) political philosophical thought.
Saint Thomas Aquinas concurred with Aristotle’s views of paternalism, that is, that the state has the right and the duty to act paternally towards its subjects. As Aristotle believed that the state was needed to promote virtue and that virtue would lead to happiness (or eudaimonia), Aquinas believed that it was the state’s job to promote virtuous subjects in order to serve god, which would lead to happiness. It should be noted however that Aquinas did not believe all vices should be controlled by law (for practical reasons) and that acts that harm others (such as murder, theft) should take precedent over ones that don’t.
For philosophers like Thomas Hobbes, John Locke, Jean Jacques Rousseau, and John Rawls paternalism was endorsed as a social contract, in which human beings hand over (some of) their rights to the state in order to achieve social order and receive protection. This contract is only valid with the consent of the people. In this way social contract theorists were influenced by Aristotle, in that if the ruler or rulers did not act in the best interests of its subjects, then they were likely to rebel and disorder would follow, much in the way that if a master mistreated a slave or a father their child, they might run away. It must also be noted that social contract theorists were considered liberals of their time and were hugely influential in politicizing the notion of universal rights.
Immanuel Kant, in the eighteenth century, was the first to argue against paternalism. Kant maintained that treating people as minors who are unable to decide what is in their own best interests is not only an infringement of liberty, but also a violation of the equal dignity of all human beings (Kant’s Respect Principle). Kant, an early Libertarian, thought that the role of the government was to protect freedom (and property rights), and that people should be left to pursue their own ends as long as they do not harm or interfere with the freedom of other individuals.
Opposition to paternalism
Opponents to paternalism are known somewhat misleadingly as “soft paternalists.” That is not to say that they advocate paternalism; they are liberals and decidedly anti-paternalism, but rather that they maintain that paternalism is only justified when it is necessary to establish whether someone is acting fully voluntarily and knowledgably. Notable anti-paternalists include John Stuart Mill and Joel Feinberg.
The harm principle and soft paternalism
Mill & the harm principle
Although Kant was the first to write openly in opposition to paternalism, it is John Stuart Mill who had the greater impact on liberal political theory following his 1859, On Liberty. Mill maintains that one's liberty is more important than protecting people from themselves, that paternalism comes with too great a cost. Mill put forward a "harm principle" which justified interference and the limitation of liberty only when it prevented harm to (unconsenting) others and that the use of coercion (by use of threat of punishment) by the state should only be allowed in so far as it was used to protect others. Therefore, Mill had no problem with the state enforcing laws that dealt with, for example, rape, murder and theft, as criminalizing such acts served to protect the liberty of the people.
Mill is best known as a utilitarian, and his views on paternalism deviate somewhat from what might be expected from a utilitarian standpoint. Utilitarianism holds that an action is right if it brings about the most amount of utility (the greatest amount of happiness or the least amount of harm), using either act or rule utilitarianism, it would therefore seem to follow that in so far as paternal acts prevent harm they are justified. However, the difficulty arises in that it is difficult to weigh up whether the harm prevented outweighs the harm caused by limiting ones liberty. Mill would maintain that the cost of ones liberty is always too great and that, in the long term, utility is better promoted by respecting liberty, he thus justified his position using rule (as opposed to act) utilitarianism; if individual rights produce the greatest good for the greatest number, then as rules they are to be preferred over anything else.
Mill further justified his anti-paternalistic stance by maintaining that individuals know their interests better than those that attempt to impose paternalism on them, and that, furthermore, human beings vary in their natures and therefore blanket rules restricting personal behavior are ineffective. Mill also places emphasis on humankind’s need to develop their individuality and that in order to do this a wide range of individual should be allowed.
It must be noted, however, that Mill reserved this respect for liberty to rational adults, therefore excluding children and the mentally and intellectually challenged. He also made provision for those who made decisions compromised by factors such as ignorance, deception or duress. This provision for allowing limited interference has become known as "soft paternalism."
Soft vs. hard paternalism
Mill’s awareness of the need, to at times, intervene in order to establish whether a self affecting act is voluntary is illustrated in by his well known example of a man about to walk over a dangerous bridge who does not speak the language of the country. Mill maintained that in such a case, interference is necessary, but once the man has been made aware of the danger he should be allowed to continue to walk over the bridge if he chooses to do so. Hard paternalists would often disagree, maintaining that in such a case of the possibility of serious harm, interference in the form of prevention is justified.
While Mill was aware of the need to establish voluntariness of an action before it is allowed, the concept of soft paternalism was coined, nuanced, and popularized by more contemporary philosophers such as Joel Feinberg (notably in The Moral Limits of the Criminal Law), Robert Nozick, and Ronald Dworkin. Feinberg expands on Mill’s harm principle by further defining harm and voluntriness as well as distinguishing hard paternalism from soft paternalism. According to Feinberg, “Hard paternalism will accept as a reason for criminal legislation that it is necessary to protect competent adults, against their will, from the harmful consequences even of their fully voluntary choices and undertakings. Soft paternalism holds that the state has the right to prevent self-regarding harmful conduct…when but only when that conduct is substantially nonvoluntary, or when temporary intervention is necessary to establish whether it is voluntary or not” (Feinberg, 1986: 12).
A simple illustration between the differences in hard and soft paternalism is that of swimming at a beach without a life guard. Advocates of hard paternalism would want to forbid (i.e. make it illegal) to swim at that beach without a life guard on duty because of the dangers involved, a soft paternalist would advocate a sign warning bathers that swimming is at their own risk. It might be said the soft paternalism attempts to coax people into making decisions which do not harm themselves through avenues such as warnings, public awareness, education, and by making available various government supported resources and structures, such as counseling services. This may, as Mill pointed out, even lead to "consensual paternalism," where an agent may request to be treated "like a child" for their own protection (such as a man with a gambling problem being allowed to request that he no longer be allowed into a casino). However, ultimately the agent should still be free to act as he chooses (given that others are not harmed). In contrast, hard paternalism attempts to use coercive measures to achieve its benevolent aims by entrenching self-harm prevention measures in the law.
While the above concentrated on legal paternalism, the debates for and against can be carried over into other contexts. For example, hard paternalists would advocate the telling of "white lies" for the good of others, such as a doctor telling a husband that his wife died a short, painless death when in fact she had suffered greatly. Such an example emphasizes two important points regarding paternalism; firstly, one does not have to even be aware that one has been acted upon paternally (and indeed one might agree if one did know), and secondly, paternalism is usually carried out by someone in a position of authority, such as in doctor-patient or government-citizen relationships. Those opposing paternalism would once again maintain that while telling the truth might be painful, it is still required in order to maintain respect and liberty, or from a Kantian perspective, that lying is never permissible.
Problems with the harm principle & soft paternalism
While on the surface, Mill’s argument, and the arguments for soft paternalism in general, might make a lot of sense, on a practical level there are several problems. Soft paternalists (or those opposing hard paternalism) such as Nozick and Mill say that acts that harm or risk only the individual(s) concerned and are validly consented to by the individual(s) should not be interfered with. This definition brings about three main problems (rephrase): Which acts, if any, harm only the actor(s), what constitutes valid consent and what constitutes harm. Through different readings/understandings of these three questions, the arguments against (hard) paternalism, as Peter Suber points out, can be severely weakened (Suber, 1999).
Firstly, in a society that is increasingly interconnected, it is extremely difficult to justify that an act does not cause any harm to others. Recreational drug use and gambling could arguably affect others negatively, not to mention when this use becomes addictive. In cases where self harm leads to actual physical harm, such as when one is hurt in a car crash while not wearing a seatbelt, it has been argued that in addition to the harm caused to that person’s loved ones, it also negatively impacts innumerable others, as the cost of medical and police services that would be required use tax payer’s money. This is known as the public charge argument. In short, ones actions frequently impact others, whether directly or indirectly, and it could be argued that unless one lived and died as a hermit, almost all actions affect others, thus in theory allowing widespread paternalism that does not violate the harm principle. As mentioned previously, it is on consideration of these consequences that most consequentialists, in opposition to Mill, would argue that paternalism is in many cases justified.
Secondly, there is the problem of what constitutes valid consent. As has already been discussed, soft paternalism acknowledges that duress and ignorance can hinder people making decisions of valid consent. However, the difficulty in establishing valid consent is extremely difficult. Are prostitutes acting voluntarily, or are they in desperate need to feed their children, or too afraid of their pimp to stop, or feeding their addiction through prostitution? What of the case of the desperately poor being willing to work for less than minimum wage? Numerous and various pressures exist that make valid consent difficult to establish and could justify legal measures to protect people from being exploited through decisions they make out of desperation.
Thirdly, the question of what constitutes harm is ambiguous. Harm can be financial, emotional, physical, psychological, and (it could be argued) moral. While physical and financial harm are relatively easy to distinguish, emotional and psychological impacts are more difficult, and moral harm perhaps the most contentious.
A further argument that calls into the question opposition to (legal) paternalism is based on the idea that paternalism can be self-imposed in a democratic context. The idea is that in a democracy the people have a say in what laws are made and in voting for the people who make the laws, therefore if democratic governments put into place heavy paternal laws, then this is with the consent of the people, a kind of consensual self-paternalism. The obvious problem with this claim is that it is almost impossible that all will want the same laws and the same amount of government "interference." Mill refers to this sort of scenario as the “tyranny of the majority,” and Nozick describes legal paternalism as the first step towards a dictatorship.
Paternalism, morality, and legal moralism
While paternalism in a contemporary western context refers mostly to physical and psychological welfare, paternalism can, and indeed historically does, include moral welfare. Plato, Aristotle and Aquinas all advocated a strong role of the state in molding and enforcing morality. However, in more recent times people have called in question whether it is the state’s duty to impose morality, and if so whose morality?
Patrick Devlin in his famous debate with hard paternalist H.L.A. Hart made the distinction between physical and moral paternalism. If prostitution is made illegal because it spreads diseases for instance, then this is physical paternalism, but if it is illegal because it is meant to protect the prostitute from moral harm (or corrupting the soul in Plato’s terms) then this is a case of moral paternalism. Other oft cited cases include those of homosexual acts and euthanasia. In such cases, the voluntariness of the action is not relevant, nor whether it causes harm to others; the prohibition of the act is purely for the moral welfare of the consenting agents involved. These examples are contentious and many would argue should be allowed, whether because they are not in fact immoral or because it is irrelevant as to whether they are. Feinberg even denies that moral harm is a coherent concept. Self-affecting acts that have been widely accepted as being illegal for moral reasons include the "sport" of dwarf tossing, cannibalism (for example the recent case of the man in Germany who agreed to be eaten), polygamy, and selling oneself into slavery.
There has been a further distinction that aims to separate acts that are made illegal purely because they are immoral and those that are made illegal in order to prevent moral harm. The prevention or prohibition of acts on purely moral grounds is known as legal moralism, while acts that are prohibited in order to prevent moral harm (to self) fall under moral paternalism. This distinction is somewhat vague (it is rejected by Devlin) as it seems reasonable to presume that rules governing morality are meant to prevent harm or moral corruption, thus making them paternal in nature.
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