Abstract
Paternalism is the coercing of people primarily for what is believed to be their own good. When, for example, a person is committed to a mental hospital, not because he is believed to be dangerous to others, but because he isbelieved to be dangerous to himself or at least in need of treatment, we have a clear example, of paternalistic intervention. The coercion involved in such intervention comes into conflict with certain basic principles of political liberty, however, and is usually regarded as justified only if the individual in question is judged incompetent to make a certain class of decisions — e.g. to refuse treatment for supposed mental illness. John Stuart Mill’s classic liberal limitation on coercion (“The only purpose for which power can be rightfully exercised over any member of a civilized community, against his will, is to prevent harm to others”.1) is normally thought to apply only to persons who are competent — e.g. not to children or the insane.
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Notes
On Liberty, 1859, Chapter 1. Mill stresses that the principle applies only to “civilized communities” and goes on to argue, in what appears to be a defense of imperialistic paternalism, that “despotism is a legitimate mode of government in dealing with barbarians, provided the end be their improvement and the means justified by actually effecting that end”.
See Livermore, Malmquist and Meehl, ‘On the Justifications for Civil Commitment’, 117 U. Pa. L. Rev. (1968)75.
See, for example, The Myth of Mental Illness (New York: Harper and Row, 1961) and The Manufacture of Madness (New York: Harper and Row, 1970).
See the review of Szasz, The Manufacture of Madness, by Herbert Morris, 18 UCLA L. Rev. 6 (1971).
For a survey of various statutes, see S. Brakel and R. Rock (eds.), The Mentally Disabled and the Law, rev. ed. 1971 (Chicago: University of Chicago Press, 1971) pp. 250–256. Even in states where committability and incompetence are distinguished by statute, the two judgments are often confused in practice.
See David B. Wexler, Stanley E. Scoville et al., ‘The Administration of Psychiatric Justice: Theory and Practice in Arizona’, 13 Ariz. L. Rev. 1 (1971), esp. pp. 88–96.
A recent study of voting behavior of mental patients (M. Klein and S. Grossman, ‘Voting Competence and Mental Illness’, American Journal of Psychiatry 127, (May 1971) 11), concludes that “the results of these studies appear to dispel any factual basis for the disenfranchisement of mental patients”. There may, of course, be reasons of policy or therapy for withholding certain rights from mental patients (e.g. to make them earn them in a token economy setting). These policy arguments (no doubt difficult if not impossible to defend) should be put forth honestly as the policy arguments that they are, however, and not disguised under a judgment of incompetence. (Indeed a program of token economy will presumably work only on persons who are competent with respect to managing their supply of tokens.)
I am drawing here on some points made by Joel Feinberg in his ‘What is So Special About Mental Illness?’ in his collection of essays Doing and Deserving (Princeton, N.J.: Princeton University Press, 1970) pp. 272–292.
New York: Random House, 1973.
Even cases (a) and (b) are not without problems, for we still do not have complete knowledge of the requisite brain physiology and of the mechanisms of posthypnotic suggestion. (For a very instructive presentation of the difficulties, both conceptual and empirical, of establishing causal connections between neurophysiological phenomena, on the one hand, and decisions and actions on the other, see John Hodson, “Reflections Concerning Violence and the Brain”, 9 Crim. Law Bull. 684,1973.) Case (c) is difficult because it appels to the very vague concept of neurosis (and perhaps begs the causal and philosophical questions at issue by calling it a compulsion neurosis). With respect to socalled neurotic compulsion, can we distinguish impulses that are irresistible from those which simply have not been resisted but which could have been had the agent tried harder? Case (d) may involve genuine compulsive behavior (addiction), but it is not clear whether the compulsion involved interferes with faculties of decision and, if so, to what extent. A drug addict might be unable to choose a cure if all we can offer him is a lengthy period of painful withdrawal. But suppose we could cure addiction in five minutes with a pleasant tasting pill. Would addicts be unable to choose this kind of cure?
(For more on this, see David Wexler, ‘Therapeutic Justice’, 57 Minnesota L. Rev. 2, 1972, esp. pp. 326ff.) Related problems arise in the question of whether or not prisoners are able to give informed consent to such things as psychosurgery. Does their desire to get out of prison somehow compel them to accept the surgery; or does it just strongly tempt them? Those who claim that prisoners cannot give informed consent in such cases tend to suggest the former when the evidence may at most support the latter. And sometimes, succumbing to a temptation previously noted, they claim that informed consent for prisoners is impossible as their way of expressing the (perhaps correct) moral view that psychosurgery should never be done on prisoners simpliciter. (For a general discussion of some of these issues, see A. M. Capron, ‘Medical Research in Prisons’, Hastings Center Report, 3:3, June 1973; see also the opinion in the recent case Kaimowitz v. Dept. Mental Health, Mich. Cir. Ct., Wayne Cty., 7/10/73, 13 Crim. L. Rep. 2452 (8/22/73).)
I am here again drawing on Feinberg, supra, note 9.
An interesting thing about this case is that (according to news reports) the parents genuinely wanted to control the child’s diabetes and were seeking the best way to do this. A more difficult case would be that of the religious fanatic who knows that a certain medical procedure (e.g. a transfusion) is the only way to save his child’s life and yet does not want to save the child’s life as much as he wants to do something else — e.g. to do “God’s will”. I am inclined to think that such a person would be morally incompetent; but demonstrating this would, I admit, be very difficult.
One might say that such persons suffer from a kind of ignorance, and this is certainly true. The ignorance is so basic, however, so out of touch with what is noncontroversially relevant to deciding medical matters, as to deserve special treatment as a kind of irrationality. It should not be confused with the kind of ignorance (e.g. not knowing that a glass contains poison) that is possible even for a rational person.
I have explored this issue in detail in my monograph The Possibility of Moral Philosophy, forthcoming.
For an elaboration of this point, see my “Moral Death: A Kantian Essay on Psychopathy”, Ethics 82:4, July 1972. (Reprinted in the present collection.)
H. Fingarette, ‘Insanity and Responsibility’, Inquiry 15:1–2, Summer 1972, pp. 17–18.
A widely used introductory text on basic psychiatry puts forth the following as (presumably) a psychiatric judgment: “When there is significant doubt about the necessity for hospital protection, it is best to err on the side of safety” (Eric Pfeiffer, Disordered Behavior [Oxford: Oxford University Press, 1968] p. 123). Surely there can be no doubt that this is really a moral judgment.
A Theory of Justice (Cambridge, Mass.: Harvard University Press, 1971). This book is an elaboration, with some important modifications, of some of Rawls’s earlier articles — esp. “Outline of a Decision Procedure for Ethics”, Philosophical Review 66, (1957) 177–197; and “Justice as Fairness”, Philosophical Review 67, (1958) 164–194. Rawls briefly discusses paternalism in his A Theory of Justice, pp. 248–250.
Rawls gives an elaborate specification of the concept of a rational agent, esp. at pages 142ff.
The “original position” is simply a hypothetical situation in which (a) there are a group of rational agents desiring to agree to principles for the resolution of controversies, (b) there does not already exist a set of such principles, and (c) the rational agents operate under certain noncontroversial moral constraints — e.g. a willingness to live by the rules they agree to, an inability to decide moral questions on the basis of factors (e.g. skin color) that are obviously morally irrelevant, etc. Rawls does not, as has sometimes been charged, attempt to get moral principles out of totally nonmoral premises. Rather he attempts to get controversial moral principles out of a set of premises consisting of (i) nonmoral claims and (ii) moral claims that are considerably less controversial than those to be derived. (For a full explanation of the concept of the original position, see Chapter 3.)
In a very brief (but extremely important) section (pp. 251–257) Rawls interprets the veil of ignorance in terms of Kant’s concept of a person acting in an autonomous way, expressing his nature as a free and rational being, and respecting a comparable nature in others. At least for me, this section illuminated the entire theory and made it come to life. At least in part, the veil of ignorance is a way of keeping parties in the original position from choosing on the basis of morally irrelevant considerations (e.g. skin color) — considerations incompatible with moral autonomy.
On page 62, Rawls defines primary goods as “things that every rational man is presumed to want. These goods normally have a use whatever a person’s rational plan of life”. One of the more controversial (but, I think, correct) elements in Rawls’s theory is his claim that liberty normally has a priority over all other goods.
The theory is also quite controversial and has been subjected to criticisms in articles far too numerous to list here. Some of the more basic of these criticisms, however, have been raised in the following review essays on A Theory of Justice: Joel Feinberg 81, Yale L. J. 5 (1972), and Thomas Nagel, Philosophical Review 82 (1973). See also Brian Barry’s The Liberal Theory of Justice (Oxford: Oxford University Press, 1973). Rawls’s theory is not without problems, but I know of no other moral theory even remotely comparable in terms of power or general plausibility.
In his excellent article “Paternalism”, from which I have learned a great deal, Gerald Dworkin argues as follows: “I suggest that since we are all aware of our irrational propensities, deficiencies in cognitive and emotional capacities, and avoidable and unavoid- able ignorance it is rational and prudent for us to in effect take out “social insurance policies”. We may argue for and against proposed paternalistic measures in terms of what fully rational individuals would accept as forms of protection. Now clearly, since the initial agreement is not about specific measures we are dealing with a more-or-less blank check and therefore there have to be certain kinds of conditions which make it plausible to suppose that rational men could reach agreement to limit their liberty even when other men’s interests are not affected” (p. 120). Though Dworkin makes no reference to Rawls, I believe I am correct in interpreting this as an appeal to a Rawlsian social contract argument. This appeal is, in my judgment, far superior to the “future-oriented consent” model which Dworkin also considers — superior in the sense that the social contract model captures the essential insight of the future-consent model without falling victim to its considerable weaknesses. Roughly, the future-oriented consent model justifying paternalism goes as follows: “Parental paternalism may be thought of as a wager by the parent on the child’s subsequent recognition of the wisdom of the restrictions. There is an emphasis on what could be called future-oriented consent — on what the child will come to welcome, rather than on what he does welcome” (p. 119). There are two basic problems with this: (1) How can we be sure that we do not manufacture the consent in the paternalistic process? An example: Jones does not want to be hypnotized. In spite of his wishes, we finally get him hypnotized, place him under suggestion, and command that when he wakes up he will express gratitude that we hypnotized him. When he does this, does it follow that our coercing him was justified? (2) I suspect that some conception of what Rawls calls primary goods is going to condition what we would accept as a genuine case of future consent — i.e. we might never accept as a counterexample the case of someone, who, even after years of paternalistic intervention, still insisted that he preferred some obviously bad state (e.g. being a delusional drug addict) to what he now is (e.g. a successful college student). We should be strongly inclined to say here that he really has not been fully cured yet (using his lack of consent to what we know is reasonable as evidence for this) and insist that, if the cure is ever complete, we will indeed have his consent. This is self-deceptively circular; for we are using our conception of what really is good for a person as a criterion for what a person really consents to. Thus, in spite of all the roundabout talk of future consent, we are really intervening because we believe it is good for the person that we do so. Consider the following example: Suppose our child never comes to agree that those trips to the dentist were worth it. Would we then conclude that we acted wrongly in taking him to the dentist? Surely not. What this shows is that paternalistic intervention in this case is clearly something considerably more than a wager on future consent. The future-consent model’s insight lies in its attempt to distinguish between what a man wills at a particular time and what he would will if he were only rational. This distinction is much better explicated in terms of what parties in the Rawlsian original position would adopt, and future consent can at most serve as evidence that this, the genuine criterion, has been satisfied. Future-consent cannot itself be the criterion. (Dworkin’s article appears in Morality and the Law, ed. by Richard Wasserstrom [Belmont, Calif.: Wadsworth Publishing Company, 1971].)
For example: Attempts have been made to condition alcoholics against drinking by the administration of anectine — a drug which produces paralysis and near suffocation. Such attempts move us into the world described by Anthony Burgess in his novel A Clockwork Orange (New York: Norton, 1963). For more details on this and related cases, see Wexler, supra, note 13.
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© 1979 D. Reidel Publishing Company, Dordrecht, Holland
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Murphy, J.G. (1979). Incompetence and Paternalism. In: Retribution, Justice, and Therapy. Philosophical Studies Series in Philosophy, vol 16. Springer, Dordrecht. https://doi.org/10.1007/978-94-009-9461-4_12
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