Dworkin's Argument

Dworkin's Argument

Let us briefly review the Principle of Autonomy and its attendant exceptions:

The Principle of Autonomy:

 

 

 

 

"Rational individuals should be permitted to be self-determining."

The Harm Principle:

 

 

 

 

 

Autonomy should be restricted if, by doing so, we act to prevent harm to others.

The Principles of Paternalism:

 

 

 

 

Weak Paternalism:

An individual's autonomy should be restricted if, by doing so, we act to prevent the individual from doing harm to him or herself.

 

 

 

 

Strong Paternalism:

An individual's autonomy should be restricted if, by doing so, we act to benefit the individual.

The Principle of Legal Moralism:

 

 

 

 

 

Autonomy should be restricted if necessary for the observance of laws which, presumably, reflect moral standards.

The Welfare Principle:

 

 

 

 

 

Autonomy should be restricted if it is done so with the expectation of a substantial benefit to others.

Dworkin's examples of paternalism (quoted from Dworkin):

  1. Laws requiring motorcyclists to wear safety helmets when operating their machines

  2. Laws forbidding persons from swimming at a public beach when lifeguards are not on duty.

  3. Laws making suicide a criminal offense.

  4. Laws making it illegal for women and children to work at certain types of jobs./

  5. Laws regulating certain kinds of sexual conduct, e.g. homosexuality among consenting adults in private.

  6. Laws regulating the use of certain drugs which may have harmful consequences to the user but do not lead to anti-social conduct.

  7. Laws requiring a license to engage in certain professions with those not receiving a license subject to fine or jail sentence if they do engage in the practice.

  8. Laws compelling people to spend a specified fraction of their income on the purchase of retirement annuities. (Social Security)

  9. Laws forbidding various forms of gambling (often justified on the grounds that the poor are more likely to throw away their money on such activities than the rich who can afford to).

  10. Laws regulating the maximum rates of interest for loans.

  11. Laws against dueling.

In addition to laws which attach criminal or civil penalties to certain kinds of action, there are laws, rules, regulations, or decrees which make it either difficult or impossible for people to carry out their plans and which are also justified on paternalistic grounds. Examples are:

  1. Laws regulating the types of contracts which will be upheld as valid by the courts, e.g. (an example of Mill's to which I shall return) no man may make a valid contract for perpetual involuntary servitude.

  2. Not allowing as a defense to a charge of murder or assault the consent of the victim.

  3. Requiring members of certain religious sects to have compulsory blood transfusions. This is made possible by not allowing the patient to have recourse to civil suits for assault and battery and by means of injunctions.

  4. Civil commitment procedures when these are specifically justified on the basis of preventing the person being committed from harming himself. (The D C Hospitalization of the Mentally Ill Act provides for involuntary hospitalization of a person who "is mentally ill, and because of that illness, is likely to injure himself or others if allowed to remain at liberty." The term injure in this context applies to unintentional as well as intentional injuries.)

  5. Putting fluorides in the community water supply.

Mill on Paternalism:

 

 

 

 

Neither one person, nor any number of persons, is warranted in saying to another human creature of ripe years, that he shall not do with his life for his own benefit what he chooses to do with it.

 

 

 

 

[T]he sole end for which mankind are warranted, individually or collectively, in interfering with the liberty of action of any of their number, is self-protection. That 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. He cannot rightfully be compelled to do or forbear because it will be better for him to do so, because it will make him happier, because, in the opinion of others, to do so would be wise, or even right.

Thus,

  1. Mill accepts the Harm Principle.

  2. Mill rejects the Principle of Strong Paternalism.

The Problem: Mill's rejection of the Principle of Strong Paternalism is apparently inconsistent with his Utilitarian theoretical framework.

Mill's Exceptions (to his rejection of the Principle of Strong Paternalism):

  1. The Wager View: It is morally permissible to restrict the autonomy of children for their benefit since they are not fully rational and we bet (wager) that if they were, they would concur with our decisions.

  2. Slavery: No adult is morally permitted to sell themselves into slavery, since doing so would be inconsistent with any future exercise of autonomy.

Dworkin's Conclusions:

  1. Mill was incorrect to reject the Principle of Strong Paternalism.

  2. Strong Paternalism should be allowed provided that authorities who would restrict autonomy on the grounds of Strong Paternalism

    1. Bear the burden of proof.

    2. Adopt the least restrictive alternative possible.

Dworkin's Argument:

 

 

 

 

 

 

1

If the Wager View can be extended to adults, then it is morally permissible for authorities to restrict autonomy on the grounds of Strong Paternalism provided they bear the burden of proof and they adopt the least restrictive alternative possible.

 

 

2

The Wager View can be extended to adults.

 

Therefore

3

It is morally permissible for authorities to restrict autonomy on the grounds of Strong Paternalism provided they bear the burden of proof and they adopt the least restrictive alternative possible.

1&2