Abstract
Most anti-paternalists claim that informed and competent self-regarding choices are protected by autonomy, while ill-informed or impaired self-regarding choices are not. Joel Feinberg, among many others, argues that we can in this way distinguish impermissible “hard” paternalism from permissible “soft” paternalism. I argue that this view confronts two related problems in its treatment of ill-informed decision-makers. First, it faces a dilemma when applied to decision-makers who are responsible for their ignorance: it either permits too much, or else too little, intervention to satisfy its proponents. Second, the most promising rationales in favor of the view ignore the distinction between an agent’s voluntarily bringing about some state of affairs, on the one hand, and an agent’s voluntarily assuming a risk, on the other. I conclude that a decision-maker’s ignorance is irrelevant to the permissibility of intervention on her behalf. If it is permissible to intervene in a given ill-informed choice, it would be permissible to intervene in an otherwise similar but informed choice, at least provided that intervention would produce similar benefits in both cases. This shows that we should sometimes accept straightforwardly paternalistic rationales.
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Notes
But see my (2011a).
As Danny Scoccia observes, few would oppose incentives that help people to make more prudent choices, even though such incentives may be paternalistic (Scoccia 2008, p. 353). I will not discuss these apparently unproblematic forms of paternalism in this paper. For the same reason, I set aside so-called “libertarian paternalism,” under which institutions design choice-situations so as non-restrictively to encourage better decision-making. See Trout (2005) and Sunstein and Thaler (2003). See my (2011b) for related discussion of cognitive bias and paternalism.
This account of paternalistic intervention thus does not assume, as some influential discussions have, that paternalism involves coercion or “interference with a person’s liberty of action” (Dworkin 1971, p. 108). Gerald Dworkin has since argued that paternalism, even the sort that “involves a violation of a person’s autonomy,” need not involve coercion (Dworkin 1988, p. 123).
Some now use “soft paternalism” to refer to interventions that limit a person’s liberty with his prior approval (de Marneffe 2010, pp. 71–72). This is not how I shall understand soft paternalism in this article.
This conclusion appears to be challenged by Richard Arneson. In discussing the bridge case, Arneson claims that “there would be no grounds for even temporary interference if the bridge were plainly marked ‘unsafe’ in letters visible to the man approaching. It is the circumstance that the man walking on the bridge lacks information he may be presumed to need, and cannot gain by himself, that justifies restraint” (Arneson 1980, p. 485, emphasis provided). This claim seems rather difficult to accept, and Arneson has since revised his position. For criticism of Arneson’s paper, see Feinberg (1986, pp. 128–132). For Arneson’s more recent views, see Arneson (2005).
Of course, if the doctor instead proceeds with the treatment without informing Cancer Patient or procuring his consent, she will frustrate his desire to make treatment decisions through his preferred method.
I am indebted to an anonymous referee for The Journal of Ethics for pointing out the need more carefully to attend to this response.
Some have likewise argued that those who wish to become surrogate mothers should be required to take a course that would help them to appreciate what the experience will be like (Damelio and Sorensen 2008).
Of course, there may also be some motorcyclists who would choose not to wear a helmet regardless of whether they take the safety course. Yet most anti-paternalists claim that, as a matter of policy, it is permissible to intervene so long as a sufficient number of people would otherwise engage in risky behavior only because they are ill-informed (Goldman and Goldman 1990). For the purposes of the example, I am assuming that a sufficiently large number of motorcyclists who would choose to skip the class and ride without a helmet would instead have chosen to wear a helmet if the course had been required.
This problem does not arise for all of the different ways in which information could be provided. The state does not, for instance, seem to interfere in the voluntary choices of smokers when it merely requires warning labels to be printed on cigarettes. For the sake of argument, however, I will suppose that the only effective way to inform prospective motorcyclists is through the safety course.
Kuflik (2010) points out that appeals to hypothetical consent are useful only in certain contexts; on his view, we cannot justify our treatment of a person who has never been competent on the grounds that he would consent if he were competent. I will set this point aside, however, since I am focusing only on ill-informed, but otherwise competent, decision-makers.
Steven Wall imagines someone who issues the following instructions: “Even if I were about to cross a bridge with rotten planks, and even if I did not wish to expose myself to the danger of doing so, I still would prefer my uncertain fate to the indignity of being subject to nonconsensual interference from others” (Wall 2009, p. 405). Intervention in this case would be hard paternalistic according to the hypothetical consent test (though, as Wall points out, few people would have a strong desire to be left alone if their lives depended on it).
This is why the response described at the end of the previous subsection faces the same problems as the hypothetical consent test: they seem to be extensionally equivalent, since they both permit intervention when doing so serves the subject’s values or desires better than non-intervention. Any cases that pose a problem for the hypothetical consent test would thus also pose a problem for the view described earlier.
Why would Cancer Patient not tell the doctor to inform him about any procedures that would ensure his survival for at least five more years? Well, if he were to do this, then the doctor’s silence would effectively indicate that Cancer Patient has less than 5 years, and his least favored outcome is to know that he has less than 5 years.
This is not to say that the practical problem is unimportant. As we have just seen, intervention on Cancer Patient’s behalf may pass the hypothetical consent test. If the doctor lacks detailed knowledge of Cancer Patient’s preferences, what should she do? Perhaps the “default” should be to obey Cancer Patient’s instructions. The drawback of this approach is that Cancer Patient may then be left to die early, even though intervention would have passed the hypothetical consent test. Alternatively, given how much is at stake, it may appear that the best course is for the doctor to intervene if there is any reasonable chance that such intervention would pass the hypothetical consent test. As applied to Cancer Patient, this approach may yield the same verdict, in practice, as a hard paternalist approach.
It is worth noting that Feinberg’s view does not seem to face this problem. Even if Gambler would consent to intervention if he were aware that he will lose, his assumption of risk may still be voluntary. If so, Feinberg’s view would rule out intervention on Gambler’s behalf.
This was pointed out by an anonymous reviewer for The Journal of Ethics.
There may be one exception: some have argued that intervention in a subject’s present choice is soft paternalistic if he has given his prior consent (Scoccia 2008, p. 358). I will set aside this possibility, however. Indeed, it is not entirely clear that consensual intervention is paternalistic at all (Husak 2010, pp. 112–113).
A similar distinction is made, albeit in a very different context, by Boonin (2003, p. 154).
Of course, that the relevant outcome is unlikely given the agent’s behavior—and that the agent knows this—may provide evidence that he does not voluntarily bring it about. But we can certainly imagine cases in which someone voluntarily brings about a state of affairs even through means that are unlikely to achieve it. To modify our example slightly, soldiers voluntarily killed their enemies in past wars, even though their weapons were so unreliable that their attempts were more likely to fail than succeed.
For similar claims, see, e.g., Wall (2009, p. 405), Scoccia (2008, p. 358, n. 12) and Mill (1859/1991, p. 107). Mill argues that intervention does not involve any “real infringement of [the bridge-crosser’s] liberty; for liberty consists in doing what one desires, and he does not desire to fall into the river” (Mill 1859/1991, p. 107).
Of course, people do sometimes voluntarily bring about the harmful consequences of their self-regarding behavior. This is true of sane people who harm themselves as a form of punishment, and it may be true of some masochists.
The idea that voluntariness is at least partly normative is not unique to cases involving ill-informed decision-makers. According to Alan Wertheimer’s influential account of coercion, whether one has been coerced in a way that undermines the ascription of legal and moral responsibility depends on whether one has been subjected to a threat, as opposed to an offer. On Wertheimer’s view, an agent issues a coercive threat only if she proposes to do something that she has no right to do (Wertheimer 1987, esp. Chapter 12). Though for criticism, see Zimmerman (2002).
I assume, of course, that the second archer was not wrongly trespassing into an area in which archery is forbidden, and so on.
It would be implausible to claim that while Reckless Hiker is subject to rational criticism for crossing the bridge without gathering more information, he is not subject to rational criticism for assuming a risk of death. It is imprudent for Reckless Hiker to cross the bridge without gathering more information only because, in doing so, he assumes a risk of death.
This possible response was suggested by a reviewer for The Journal of Ethics.
As Heidi Hurd warns, positing different standards of voluntariness for the self-regarding and other-regarding domains may itself be paternalistic (Hurd 1996, pp. 138–145).
By “rational” here, Feinberg means “competent,” not “fully prudent” (1986, p. 106).
Of course, this would not necessarily result in a blanket prohibition of the relevant form of behavior. Suppose, for instance, that a certain climb is extremely dangerous for novice mountaineers, but relatively safe for experts. There may then be a paternalistic argument for permitting people to climb only if they can demonstrate the relevant expertise.
As Archard points out, the central philosophical question at stake in the debate over paternalism “is whether I, who sincerely and reasonably claim to know better than you, am not warranted in trying to get you to act as I think best” (1994, p. 287, emphasis added).
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Hanna, J. Paternalism and the Ill-Informed Agent. J Ethics 16, 421–439 (2012). https://doi.org/10.1007/s10892-012-9128-4
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DOI: https://doi.org/10.1007/s10892-012-9128-4