Abstract
This paper explores the possibility that some cases of criminal paternalism might include among their justifying reasons an appeal to human dignity.
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Notes
Tom Hester, Jr., “Corzine Backs Seat Belts for All Jersey Passengers,” Courier-Post, March 26, 2008 http://www.courierpostonline.com/apps/pbcs.dll/article?AID=/20080326/NEWS01/80326035.
In the United Kingdom, when mandatory safety helmet wearing for motor cyclists was introduced, Britain’s Sikh population was strongly opposed and eventually had to be accommodated by means of an exceptive clause.
I have provided one in “Paternalism and Personal Identity,” Jahrbuch für Wissenschaft und Ethik, Band 14 (2009): 93–106. My original discussion appeared in Paternalism (Totowa, NJ: Rowman & Allanheld, 1984), 67–73.
In other words, I am interested in defending a form of paternalistic reasoning within a framework that is less libertarian and more communitarian, though resolutely liberal. I consider the maintenance of one’s dignity, like the maintenance of one’s bodily integrity, to be an important welfare interest. Vera Bergelson develops some of the same considerations rather differently in “The Right to Be Hurt: Testing the Boundaries of Consent,” George Washington Law Review 75 (2007): 165–236.
There were of course arguments to the effect that people with the proclivities of Meiwes and Brandes had to be disordered and not fully responsible or that Brandes’s consent became moot at a certain point of the proceedings, but I tend to see such arguments as cases of special pleading, at least so far as they seek to deny the reality or the persistence of the consent.
At the time there was no law in Germany that proscribed cannibalism, and the offenses of “killing on request” (illegal euthanasia) and “disturbing the peace of the dead” attract only modest penalties. The prosecutors sought more and, in the wake of public reaction, they successfully appealed Meiwes’s initial conviction of manslaughter (and 8½ years prison sentence) to the Federal Constitutional Court, and then reargued the case for a murder conviction (for which Meiwes received life imprisonment).
It may not be totally irrelevant that subsequent to his conviction Meiwes expressed regret for the way in which he had permitted a longstanding fantasy to dominate his decision making, and he expressed a desire to discourage others from pursuing similar fantasies. Did he need to be “brought up short” to see how he had allowed certain fantasies to dominate his perspective?
That will encompass interference with those who assist in bringing about the self-degrading conduct.
Even the harm principle, it might be argued, embodies a moral viewpoint, albeit one that constitutes what Hart referred to as “critical morality.” I would suggest that the commitment to human dignity is also part of critical morality. Both harm and human dignity may be infected by what Hart characterized as positive morality when we attempt to explicate them.
For a defense of offense to others see Joel Feinberg, Offense to Others (New York: Oxford University Press, 1985); for a limited defense of harm to self, see Kleinig, Paternalism; for a defense of immorality, see Michael S. Moore, Placing Blame: A General Theory of the Criminal Law (Oxford: Clarendon Press, 1997).
I am grateful to Andrew von Hirsch for pressing me on this issue, for it is important that I attempt to make good on what I am claiming as a social commitment to securing—to a certain extent—what is intended as an element of individual welfare.
Even in cases in which legislation is directed to the securing of private agreements, it has the important social function of legitimating agreements of that kind.
I do not of course deny that a considerable amount of work needs to be done to explicate the notion of harm, let alone harm to others. See especially Feinberg, Harm to Others (New York: Oxford University Press, 1984). Moreover, whether harmful invasions should be dealt with by means of civil or criminal law often depends on how they are brought about—through negligence, recklessness, or intention.
Wright's Case [1603] 1 Coke on Littleton, para. 194 at 126.6.
Black’s Law Dictionary, 5th edn. (St. Paul, MN: West, 1979). Contemporary statutes include permanent disfigurement and no longer connect dismemberment or disablement with military service.
Matthew v. Ollerton [1693] Comb. 218, 90 E.R. 438.
For background, see Terence Ingman, A History of the Defence of Volenti Non Fit Injuria, Juridical Review, New Series, 26 (1981): 1–28. Refusal to allow the volenti maxim as a defense has its roots in Aristotle, Nicomachean Ethics, V, xi.
More controversial, however, have been the New York bans on restaurant cooking sous vide (temporary) and the manufacture/sale of non-pasteurized cheeses. The potential for over-reaching is the specter against which libertarians constantly warn.
An important consideration to keep in mind throughout this paper is that although I am presuming that those who make welfare-compromising decisions can be held responsible for them, responsibility is not simply a threshold consideration but also a matter of degree, and one of the factors that may influence legislation is a recognition that although our decisions meet a threshold for ascribing responsibility they are nevertheless often compromised in various ways and are therefore less than fully free and informed.
Obviously I am not claiming that social institutions should be focused exclusively on liberal values, and I recognize that even liberal values may sometimes come into conflict. But these issues lie beyond the scope of the present essay.
On Liberty, ch. 1. These of course are not per se distinctively liberal values, though they will probably have a cast in liberal societies different from that in other social arrangements.
Id.
Jeremy Bentham, An Introduction to Principles of Morals and Legislation, ed. J.H. Burns and H.L.A. Hart (Oxford: Oxford University Press, 1996), ch. IV, 38–39.
J.S. Mill, Utilitarianism, ch. 2. In his essay Bentham, Mill quotes Bentham as saying: “quantity of pleasure being equal, push-pin is as good as poetry.” The reference, slightly inaccurate, is to The Rationale of Reward (London: Robert Heward, 1830), bk. 3, ch. 1, 206.
See J.S. Mill, Principles of Political Economy [1848], in John M. Robson and V.W. Bladen (ed.), Collected Works of John Stuart Mill (Toronto: University of Toronto Press, 1965), vols. II and III, 947–48.
For a defense of this, see John Kleinig and Nicholas G. Evans, “Human Flourishing, Human Dignity, and Human Rights,” Law and Philosophy 32, no. 5 (September 2013): 539–64.
I grant that people may view their declining functions in very different ways [see, for example, Mitch Albom, Tuesdays With Morrie (New York: Doubleday, 1997)]. However, for some, the failure of certain bodily functions and need for others to take care of them will be seen as humiliating and not simply a nuisance.
[1993] 2 All E.R. 75; [1994] 1 AC 212. The case was widely discussed. See, for instance, N. Bamforth, “Sado-Masochism and Consent,” Criminal Law Review (1994): 661–65; Leslie J. Moran, “Violence and the Law: The Case of Sado-Masochism,” Social and Legal Studies 4 (1995): 225–51; and Simon Bronitt and Bernadette McSherry, Principles of Criminal Law, 2nd ed. (Sydney: Law Book Co., 2005), 532–37 (for an update on the literature). I comment on the case in Section IV, below.
From the title of Ch. 3 of On Liberty.
On Liberty, Ch. 3 http://www.bartleby.com/130/3.html.
The notion of authenticity has generated a huge and problematic literature, some of which is referred to in John Christman, “Autonomy in Moral and Political Philosophy,” Stanford Encyclopedia of Philosophy http://plato.stanford.edu/entries/autonomy-moral/.
One of the problems often associated with Kantian conceptions of autonomy concerns its overconcern with a passionless rationality.
In the political realm we currently grapple with a similar situation, as Westphalian ideas of political sovereignty have needed to confront the challenge posed by “failed” or otherwise self-destructive states.
On Liberty, Ch 5. For discussion of Mill’s opaque remarks on self-enslavement, see John Kleinig, “John Stuart Mill and Voluntary Slave Contracts,” Politics 18, no. 2 (November, 1983): 76–83; and also: David Archard, “Freedom not to be Free: The Case of the Slavery Contract in J. S. Mill's On Liberty,” Philosophical Quarterly 40, no. 161 (October, 1990): 453–465; Alan E. Fuchs, “Autonomy, Slavery, and Mill's Critique of Paternalism,” Ethical Theory and Moral Practice 4, no. 3 (September, 2001): 231–251; John D. Hodson, “Mill, Paternalism, and Slavery,” Analysis 41 (January, 1981): 60–62; Andrew Sneddon, “What's Wrong with Selling Yourself into Slavery? Paternalism and Deep Autonomy,” Critica: Revista Hispanoamericana de Filosofia 33, no. 98 (August, 2001): 97–121 http://critica.filosoficas.unam.mx/pdf/C98/C98_sneddon.pdf; Mark Strasser, “Mill on Voluntary Self-enslavement,” Philosophical Papers 17 (November, 1988): 171–183; Ten Chin Liew, Mill on Liberty (Oxford: Oxford University Press, 1980), ch. 7.3; Samuel V. La Selva, “Selling Oneself into Slavery: Mill and Paternalism,” Political Studies 35, no. 2 (1987): 211–23; D.G. Brown, “More on Self-Enslavement and Paternalism in Mill,” Utilitas 1 (1989): 144–50.
See Stephen A Smith, “Future Freedom and Freedom of Contract,” Modern Law Review, 59 (1996): 181.
However, uncertainty about interests is more widespread and not restricted to cases of self-regarding conduct. Consider the problems involved in determining standards for breaches of privacy.
T.H. Green, “Liberal Legislation and Freedom of Contract,” published in Works, ed. R.L. Nettleship (London: Longmans, 1888), vol III, 265–86. All non-referenced quotations are taken from this lecture. His views on alcohol are developed in a number of other places as well. For a good review, see Peter Nicholson, “T.H. Green and State Action: Liquor Legislation,” in Andrew Vincent (ed.), The Philosophy of T.H. Green (Aldershot: Gower, 1986), 76–103. In what follows I have drawn on my “Ethical Issues in Substance Use Intervention,” Substance Use & Misuse 39, no. 3, (2004): 369–98.
Contemporary examples might include the effects of the ready availability of alcohol in Native American and Indigenous Australian communities.
Green was equally supportive of legislation that made it compulsory for parents to send their children to school. In all these cases we might want to argue that the paternalism is only of the “weak” variety. Perhaps so, though I would be more inclined to see the labor contracts he opposed as unconscionable (fundamentally unfair) rather than coercive.
Green does not have in mind here those standard cases in which one person directly harms others, but cases in which some gain so much control over “the means of production” that others’ options are harmfully diminished. There is, perhaps, an echo of Locke’s concern, in the Second Treatise Of Civil Government (Ch. 5), about the amassing of property such that “enough, and as good” is not “left in common for others.”
It is Mill’s view that parents (and society) have control over the welfare of children until the age of their majority, but that then they are “on their own”—at least so far as social coercion is concerned. See On Liberty, Ch. 4.
Green’s argument is very similar to those sometimes used in defense of affirmative action and compulsory education. To better the situations of those with a history of social oppression, it is not enough to remove formal constraints on them. Something positive must be done to improve their chances of making something of themselves.
Prolegomena to Ethics, ed. A.C. Bradley, 5th ed. ([1883]; Oxford: Clarendon, 1907), sect. 332, p. 401. Bernard Bosanquet (in The Philosophical Theory of the State) likewise referred to the state’s role as one of “hindering hindrances.” That said, it needs to be acknowledged that Green believed that the full realization of human capabilities would have a moral cast to it. Thus he writes that “the only good that is really common to all who may pursue it, is that which consists in the universal will to be good—in the settled disposition on each man’s part to make the most and best of humanity in his own person and in the persons of others.” (sect. 244, p. 288). This is closely connected to his idealism, the view that the self-realization of one is possible only if the self-realization of all is attained (sect. 370, pp. 456–57); in other words, self-interest and the interests of others are intertwined.
Nicholson, “T.H. Green and State Action: Liquor Legislation,” 90.
Works, Vol II, 1886 (c) sects. 17 and 18.
There is little doubt that Green saw the issue as one of class. He strongly identified with working-class progress, and saw both the proliferation of drink shops in working-class areas and the lack of interest by conservatives in doing anything about it as a reflection of upper-class hegemony.
In the Australian situation, opposition to a paternalistic prohibition against alcohol consumption by its indigenous population was followed by a communally devastating lifting of that prohibition. It has now been replaced (though probably too late) by legislation empowering indigenous communities to make their own decisions regarding the availability of alcohol on their land. See Maggie Brady, The Grog Book: Strengthening Indigenous Community Action on Alcohol (Canberra, ACT: Australian Government, Department of Health and Ageing, 2005), chs 4 and 6.
T.H. Green, “Liberal Legislation and Freedom of Contract,” at 383.
On Liberty, ch. 4. See also Mill’s letter to Dawson Burns, published in The Times, November 7, 1868; reprinted in F.E. Mineka and D.N. Lindley, The Later Letters of John Stuart Mill 1849–1873 (Toronto and London: University of Toronto Press and Routledge and Kegan Paul, 1972), 1480. See, further, Green’s speech at a meeting in Oxford on the Intoxicating Liquors Bill, Oxford Chronicle, May 16, 1874, 7. For further discussion on Mill and Green, see Nicholson, “T.H. Green and State Action: Liquor Legislation,” 87–91.
A notable exception was the Italian renaissance philosopher Giovanni Pico della Mirandola (1463–1494), who, in his celebrated Oration on the Dignity of Man, located human dignity in the human power of self-transformation, the capacity of humans to be whatever they wish (trans. A. Robert Caponigri [Chicago: Gateway, 1956]). This was innovative in more than one way. It accorded powers to humans that many theologians considered to have been radically lost when Adam and Eve rebelled against their Maker. And, significantly, it universalized the idea of dignity. See further, Richard C. Dales, “A Medieval View of Human Dignity,” Journal of the History of Ideas 38, no. 4 (October–December, 1979): 557–72.
For a helpful discussion, see Michael J. Meyer, “Kant’s Concept of Dignity and Modern Political Thought,” History of European Ideas 8, no. 3 (1987): 319–32.
Some of its participants subsequently appealed (unsuccessfully) to the European Court of Human Rights: Laskey, Jaggard and Brown v. The United Kingdom (1997) 2 EHRR 39.
There is, however, an ambiguity here that is of some relevance. The fact that some activity is engaged in “in private” rather than “in public” does not show it to be private in the sense of being of no public interest (any more than a man’s raping his wife in the privacy of the marital bedroom).
Part of the difficulty presented by cases such as this is that the behavior in question fuses a commitment to sexual freedom and expression with an aversion to violence and degradation. It was no accident that the Lords decision garnered feminist support. See Susan Edwards, Sex and Gender in the Legal Process (London: Blackstone, 1996), Ch. 2.
Even decency (or indecency) does not quite capture the illicit concern here, for there is a perfectly respectable notion of human decency that should order our relations. But decency—or at least indecency—has tended to become associated with sexual propriety, and it is to be wondered whether that in and of itself should be of concern to the law. On a more acceptable account of decency, see A.T. Nuyen, “Decency,” Journal of Value Inquiry 36, no 4 (2002): 499–510.
See, e.g., People v. Samuels, 250 Cal. App. 2d, 501, 58 Cal. Rptr 439 (Dist. Ct. App. 1967). In this case the court unconvincingly argued in relation to Samuels’ whipping of an unidentified person that “it is common knowledge that a normal person in full possession of his mental faculties does not freely consent to the use, upon himself, of force likely to produce great bodily injury.”
This indeed was a central concern in the follow-up case in the European Court of Human Rights. See Leslie J. Moran, “Laskey v. The United Kingdom: Learning the Limits of Privacy,” Modern Law Review 61 (1998): 77–84.
An interesting English case is provided by the person who publicly displayed earrings fashioned out of freeze-dried fetuses. See R. v. Gibson [1991] 1 All E.R. 439. Here, however, the charge was that of “outraging public decency.” For discussion, see Tom Lewis, “Human Earrings, Human Rights and Public Decency,” Entertainment Law 1, no. 2 (Summer, 2002): 50–71.
A case such as this sidesteps (but perhaps invites engagement with) a vigorous ongoing debate about whether the idea of a special human dignity is “speciesist.” See, in particular, James Rachels, Created from Animals: The Moral Implications of Darwinism (NY: Oxford University Press, 1990).
See Carl Elliott, “A New Way to be Mad,” Atlantic Monthly 283, no. 6 (December, 2000): 72–84; Tim Bayne and Neil Levy, “Amputees by Choice: Body Integrity Identity Disorder and the Ethics of Amputation,” Journal of Applied Philosophy 22, no. 1 (2005): 75–86.
If there is something on the horizon, that may counsel delay, given the permanence of amputation.
For a careful analysis of degradation, see John Vorhaus, “On Degradation. Part One: Article 3 of the European Convention on Human Rights,” Common Law World Review 31 (2002): 374–99; “On Degradation. Part Two: Degrading Treatment and Punishment,” Common Law World Review 32 (2003): 65–92. Not every act that is undignifying is ipso facto degrading. Degradation involves a particular kind of derogation from human dignity.
BVerGE 64, 274 (1981). Another controversial case occurred in 1995 when the French Conseil d’État (Commune de Morsang-sur-Orge) ruled that dwarf-tossing, even when consented to, violated “ordre public” because it compromised human dignity to allow oneself to be used as a mere thing. See Conseil d’État (October 27, 1995), http://www.conseil-etat.fr/ce/jurisp/index_ju_la47.shtml. In the United States, dwarf-tossing is prohibited in a number of states—partly in response to representations by members of Little People of America—though a few who made good money through being thrown protested at having their livelihood curtailed.
For a different kind of example, think of a country fair/street market event that involved a “ducking stool” contraption that, when activated by those who hit the latch, tipped its willing occupant into a pit of cow manure.
Interestingly enough, in On Liberty, Mill supports the prohibition of public indecency, hardly an instance of “harm to others.” For attempts to reconcile this with his other views, see Jonathan Wolff, “Mill, Indecency and the Liberty Principle,” Utilitas 10, no. 1 (1998): 1–16.
I say this because there is a longstanding debate about whether self-regarding conduct belongs to the moral domain. Mill is firmly of the view that it does not. I happen to think it does, but wish to acknowledge the problem. See W.D. Falk, “Morality, Self, and Others,” in Ought, Reasons, and Morality: The Collected Papers of W. D. Falk (Ithaca. NY: Cornell University Press, 1986); Gabriele Taylor and Sybil Wolfram, “The Self-Regarding and Other-Regarding Virtues,” Philosophical Quarterly 18, no. 72 (1968): 238–48; Andrews Reath, “Self–Legislation and Duties to Oneself,” and Nelson Potter, “Duties to Oneself, Motivational Internalism, and Self-Deception in Kant’s Ethics,” in Kant’s Metaphysics of Morals: Interpretative Essays, ed. Mark Timmons (Oxford: Oxford University Press, 2002), 349–70, 371–89.
See Joel Feinberg, “The Expressive Function of Punishment,” in Doing and Deserving (Princeton, NJ: Princeton University Press, 1970).
It is a serious judgment on supposedly liberal societies that they often support prison systems pervaded by degradation.
Acknowledgments
My thanks to Nick Evans, Andrew von Hirsch, Tziporah Kasachkoff, and others who have commented at various readings of its drafts.
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Kleinig, J. Paternalism and Human Dignity. Criminal Law, Philosophy 11, 19–36 (2017). https://doi.org/10.1007/s11572-014-9358-6
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DOI: https://doi.org/10.1007/s11572-014-9358-6