Abstract
Paternalistic behaviour directed towards a person’s informed and competent decisions is often thought to be morally impermissible. This view is supported by what we can call the Anti-Paternalism Principle (APP). While APP might seem plausible when employed to show the wrongness of paternalism by the state, there are some cases of paternalistic behaviour between private, informed, and competent individuals where APP seems mistaken. This raises a difficulty for supporters of APP. Either they need to reject APP to accommodate our intuitions in these cases, or provide grounds for thinking that paternalistic behaviour between certain private individuals is different in a morally relevant sense. In this paper, I explore several possible morally relevant differences, and find all of them unsatisfactory as grounds for maintaining the plausibility of APP.
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Notes
This principle is reflected in the law in many jurisdictions. For example, in the USA, see Schloendorff v. Society of New York Hospital 211 NY 125 (1914). In England and Wales, see Re B (Adult, refusal of medical treatment) [2002] 2 All ER 449.
For a similar statement of APP, labelled as Strong Anti-Paternalism, see: Birks (2018: 139)
Arneson has subsequently changed his view (2005).
This is H. L. A. Hart’s interpretation of Mill’s Liberty Principle (1982: 101–3).
One notable recent exception has been provided by George Tsai (2018). Tsai provides grounds for holding that paternalism between those in intimate relationships can be sometimes justified, while remaining at least presumptively wrong between non-intimates. I do not contend with Tsai’s arguments here, in part, due to constraints of space, but mostly because the grounds he suggests cannot accommodate the permissibility of paternalism in the cases considered in this paper.
Public reason liberals might be able to distinguish paternalism between private individuals and paternalism administered by the state. This is because the central view in public reason liberalism is that institutions, laws, and policies need to be justified to those affected by them, where justification is understood to require accounting for their actual beliefs and values in some respect. See, for instance, Rawls (2005). This public justification requirement prohibits paternalism in cases where those paternalistic policies and laws could not be justified to the paternalizees. For example, it might not be possible to justify a ban on fatty foods to a person who believes that a shorter life filled with hedonic pleasure is better than a longer life. As a result, the argument of the paper does not undermine a public reason-based version of APP. However, my argument might still be of interest to public reason liberals. After all, even Jonathan Quong, one of the few influential public reason liberals who explicitly discusses the wrongness of paternalism, provides an argument that explains the prima facie wrongness of paternalism, and these grounds are independent of the fact that many paternalistic policies and laws would not be publicly justified (2011: 73–107).
This definition is adapted from Fahmy (2018: 96). Fahmy helpfully revises Seanna Shiffrin’s definition to narrow the scope of what constitutes paternalism, but the grounds for this revision should not concern us here. For the sake of simplicity, I have also excluded a further condition provided by Fahmy and Shiffrin, that A intends to her behaviour to have an effect on B, or B’s sphere of legitimate agency. As nothing in my argument rests on this part of the definition, I omit it in order to avoid possible confusion, and to avoid a discussion of what is meant by a sphere of legitimate agency. While Fahmy uses the language of interests, this should be understood as synonymous with wellbeing. The quotation included is Shiffrin as quoted in Fahmy (2000: 218).
We might doubt that my argument would be successful if we held Gerald Dworkin’s definition, where paternalism necessarily involves an interference with the liberty or autonomy of the paternalizee (2020). I discuss below in Section 3 whether a paternalistic omission such as that in Melatonin Gummies could be understood as an interference with the paternalizee’s autonomy.
For example, my argument is compatible with Jonathan Quong’s definition of paternalism (2011: 80).
A similar example is given by Dworkin (2020).
My argument is compatible with many definitions of love, but for the purposes of the paper I mean romantic love, defined by Robert Nozick as a mental state with two stages: (i) The state of “almost always thinking of the person; wanting constantly to touch and to be together; excitement in the other’s presence; losing sleep; expressing one’s feelings through poetry, gifts, or still other ways to delight the beloved; candlelit dinners; feeling that short separations are long; smiling foolishly when remembering actions and remarks of the other; feeling that the other’s minor foibles are delightful...” and so forth; and (ii) the state of “Wanting to form a we with that particular person, feeling, or perhaps wanting, that particular person to be the right one for you to form a we with, and also wanting the other to feel the same way about you” (1989: 69–70).
For a discussion of a right to do wrong see (Waldron 1993).
I thank an anonymous reviewer for raising this objection.
One exception is Quong’s definition of paternalism, which excludes cases where a person blamelessly lacks relevant information concerning a decision (2011: 80, 82–3).
Following Kagan, I hold that behaviour is prima facie wrong when it appears to be wrong, but it might not be wrong in any respect. Behaviour is pro tanto wrong when it is in fact wrong in at least one respect, but it might still be permissible because its wrongness could be outweighed by other considerations (Kagan 1989: 17n).
For a clear account of these exceptions, see Feinberg (1986: 113–124).
Throughout the paper, when I write that we will consider whether paternalistic behaviour is permissible in Distancing and Anti-Paternalistic Sex, or whether certain morally relevant differences permit paternalistic behaviour in these cases, I mean that we will consider whether it is permissible for A to behave paternalistically towards B, and whether it would have been permissible for D to behave paternalistically towards E by refusing to have sex with E for E’s benefit. I am aware that no paternalistic behaviour takes place in Anti-Paternalistic Sex, but this omission makes the prose less cumbersome.
One of many examples from popular culture is Beyonce’s song, Crazy in Love.
I say that it is only could be permissible, because whether it would be in fact permitted depends on other factors, such as whether the benefit conferred is sufficiently great to justify the paternalistic behaviour.
For a discussion of the information requirement for permissible sex, see: Lazenby & Gabriel (2017).
Indeed, some hold that rape should be defined as non-consensual sex. See for instance Archard (2007).
A similar example to make this point is given by Feinberg (1986: 104).
We might question whether paternalistic interference with gambling could ever be permitted. It is possible that a gambling addiction could mean that paternalistic interference is permissible, but this would be likely on the grounds that the addict lacks competence, rather than information.
I thank Paul Bou-Habib for pressing me with this objection, and providing the example.
Shiffrin makes a similar point concerning a difference between paternalistic behaviour and being complicit with someone’s detrimental plans (2000: 226–7).
If we accept this distinction, it is possible that in Anti-Paternalistic Sex, D could permissibly refuse to have sex with E if he were motivated in order to prevent himself from being the source of harm to E, but this does not show that D’s paternalistic refusal would be permissible.
I defend this view in Birks (2018).
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Acknowledgements
I thank Ian Carroll, Margherita Galassini, Élise Rouméas, Tony Taylor, and Frej Klem Thomsen for their helpful comments on the paper. I presented earlier versions at the Office of International Education, University of Georgia, the Institute for Experimental Medicine, University of Kiel, the Meetings on Ethics and Political Philosophy, University of Minho, the Festival of Ideas, Pompeu Fabra University, and the Research Group for Criminal Justice Ethics, Roskilde University. I thank the audiences at these events for their questions and discussion. Finally, I am grateful to the anonymous reviewers for their many excellent suggestions and objections.
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The paper was in part written while funded by the German Ministry of Education and Research (01GP1311).
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Birks, D. Sex, Love, and Paternalism. Ethic Theory Moral Prac 24, 257–270 (2021). https://doi.org/10.1007/s10677-021-10162-y
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DOI: https://doi.org/10.1007/s10677-021-10162-y