Abstract
This paper scrutinizes the tension between individuals’ rights and paternalism. I will argue that no normative account that includes rights of individuals can justify hard paternalism since the infringement of a right can only be justified with the right or interest of another person, which is never the case in hard paternalism. Justifications of hard paternalistic actions generally include a deviation from the very idea of having rights. The paper first introduces Tom Beauchamp as the most famous contemporary hard paternalist by outlining his moral theory (principlism) and showing why it, as it stands, has to allow for hard paternalism. Secondly, the paper focuses on the notion of rights within principlism. I will employ traditional theories of rights to make sense of rights in principlism. Unfortunately, this attempt fails. In the third part, then, I claim that rights can only be limited with reference to the rights or interests of others. This structure is the very point of rights, it is their bite. I will argue for this claim and show its implications. The most important implication is that not only principlism, but every normative theory that includes rights of individuals, has to abolish hard paternalism.
I am indebted to many people for comments on earlier versions of this paper. To the participants of the spring school on paternalism at Hamburg University; to an audience at Erasmus University in Rotterdam; to Ulrich Gähde, Daniel Groll, Doug Husak, and, especially, Tom Beauchamp.
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Notes
- 1.
For the notion of “substantially autonomous decisions” see, e.g., Beauchamp (2009: 83).
- 2.
- 3.
See, e.g., Chap. 10. Note that Schöne-Seifert’s own position is somewhat ambiguous. She first finds the position convincing that hard paternalism is never justifiable (Chap. 10: 112). Later she highlights that hard paternalism should be banned from medicine as a practice in society, leaving open the possibility to justify hard paternalism in particular cases (Chap. 10: 113). Since she does not develop this idea and does not provide any criteria as to when it might be justified I cannot really see the difference between her view and Beauchamp’s.
- 4.
In principlism nonmaleficence only includes negative prohibitions of action, which is why the side rails case calls for the application of the principle of beneficence.
- 5.
Note that Beauchamp (2009: 85) uses slightly different conditions that do not include suitability (condition 2 above), but focus on necessity (4 and 5) and balancing (3).
- 6.
For very similar conditions see Chap. 5.
- 7.
Beauchamp and Childress’s condition 1 resembles the legitimate end requirement in the proportionality test; condition 2 calls for suitability, 4 and 5 for necessity, and condition 3 for balancing.
- 8.
- 9.
Another point worth noting is that Beauchamp and Childress also provide requirements for the balancing process (2013: 23), which are effectively the same as the criteria for the justification of paternalistic acts. This is confusing, especially because condition 3 refers to balancing and would thus not serve any function. A comparison with the legal proportionality test could help to get the concepts straight.
- 10.
Virtues have some kind of mixed character. Some impose obligations, others do not.
- 11.
This is, of course, not to say that they are synonymous. They clearly follow different semantic rules.
- 12.
- 13.
- 14.
Since principlism generally draws on W.D. Ross’s notion of prima facie norms, one might hope for clarification by turning to Ross. In his discussion of rights, Ross (1930: 48 ff.) examines different versions of the correlativity thesis; but, unfortunately, he does not address the issue raised here.
- 15.
What I call will theory here is, of course, a family of theories, which only share some basic features. Will theorists are philosophers as diverse as Immanuel Kant, H.L.A. Hart, Hans Kelsen, and Hillel Steiner.
- 16.
Cf. Finnis (2011: 223 ff.).
- 17.
- 18.
- 19.
The most recent was put forward by Urbina (2012).
- 20.
Proponents of the interest theory—which is, of course, also a family of theories—are, e.g., Jeremy Bentham, David Lyons, Neil MacCormick, Joseph Raz, and Matthew Kramer.
- 21.
See the discussion in Waldron (1989).
- 22.
For a discussion of “strong”, “medium”, and “weak” models, see Klatt/Meister (2012: 15–44).
- 23.
I am referring here to accounts such as Robert Alexy’s (2002), who developed an idealized “weight-formula” that includes, inter alia, the abstract weights of rights (which are the same in every case) and the intensity of interference with the right (in the particular case).
- 24.
- 25.
Notable exceptions are Raz (1986) and Nozick (1974). Raz does not follow Hohfeld at all, Nozick only allows for a very limited set of rights (as side constraints), which are agent-relative and only negative in character, i.e. they only require to refrain from something (to the result that they can never conflict); see Waldron (1989).
- 26.
These are named after the American jurist Wesley Hohfeld who developed them as an analysis of legal rights. For a very clear outline of the Hohfeldian incidents—much clearer, indeed, than Hohfeld’s own writings—see Wenar (2011) or Jones (1994). Wenar (2005) and Kramer (1998) provide refined versions of the incidents. On how the Hohfeldian incidents can be used to analyze moral rights, see Jones (1994: 47 ff.).
- 27.
This is the simplified version of a case the German Constitutional Court decided in 2011 (BVerfG, 2 BvR 882/09 of March 23, 2011). The German text of the decision and an English press release are available on the court’s website (www.bverfg.de). On that decision see Bublitz (2011).
- 28.
This holds obviously for law, but also for ethical theories that include rights of individuals, just take Gert, Culver, and Clouser’s definition of paternalism (Gert et al. 2006: 238) which excludes every action that does not violate one of Gert’s ten moral rules (which is—on their account—the same as a moral right) or principlism (where, as already pointed out, patients have rights, which are correlative to obligations originating from rules or principles).
- 29.
For my point I do not need to distinguish between rights of others and interests of others; neither between individuals’ interests and interests like “national security” or “public welfare” (I believe that “interests” in the latter sense are almost always an abbreviation for accumulated interests or rights of individuals).
- 30.
As in most cases of hard paternalism we need a strong empirical assumption here: that the man will, once treated and released, not be a danger for other people.
- 31.
It is quite common to first acknowledge this role of rights but then weaken it again to account for actions as being paternalistic although they do not share this rights-structure; see, e.g., Shiffrin (2000: 218 f.).
- 32.
Recently, Daniel Groll (2012) made a parallel point concerning the rights of the cared-for, which in his terminology are structurally decisive authoritative wills or demands of the cared-for, and surrogate decisions, where in his terminology the will of the cared-for might be substantially decisive. But for Groll this distinction of roles the will of the cared-for might play in decision making does not necessarily rule out hard paternalism.
- 33.
But note that something structurally very similar remains when we interfere with surrogate decisions, e.g. the father’s refusal to give his son a blood transfusion, because he (the father) is a Jehova’s witness. I will not go into that here.
- 34.
Cf. Buchanan/Brock (1989).
- 35.
To give an example: Imagine a father who takes his 4-year old son Billy to the dentist. When the doctor now treats Billy this is justified because the father exercises Billy’s rights and consents to the treatment, thereby waiving Billy’s right to bodily integrity. There is no need to take the rights of others into account. This is a case of surrogate decision making. It turns to soft paternalism when Billy explicitly refuses the dentist’s treatment.
- 36.
Note that my approach here is in line with Beauchamp’s claim that hard paternalism is the only interesting form of paternalism, since only this form has to do with the limitation of autonomy. He argues that “it is easy to justify the conclusions of [soft] paternalism independent of any mention of a principle of paternalism” (2009: 82).
- 37.
As I will argue in turn, the carer can only try because hard paternalism is unjustifiable.
- 38.
I am, of course, focusing here on paternalism-like cases. We also talk about surrogate decision making where a proxy decides for someone else without any carer (or someone else) interfering with the cared-for’s rights.
- 39.
Some try to avoid this problem by talking about “future persons” (Gerald Dworkin) or “different selves” (H.L.A. Hart), thus constructing something like a “harm to others” situation.
- 40.
I assume that coherence with currently accepted positions is a plus; it is, of course, still possible to develop a much better alternative theory of rights.
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Paulo, N. (2015). The Bite of Rights in Paternalism. In: Schramme, T. (eds) New Perspectives on Paternalism and Health Care. Library of Ethics and Applied Philosophy, vol 35. Springer, Cham. https://doi.org/10.1007/978-3-319-17960-5_9
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