Moral paternalism, virtue, and autonomy

Australasian Journal of Philosophy

Volumn 78, Issue 1, 2000, Pages 53-71

  Scoccia, Danny ^a  

^a NEW MEXICO STATE UNIVERSITY   (United States)

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[No Author keywords available]

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EID: 34347316945     PISSN: 00048402     EISSN: None     Source Type: Journal    
DOI: 10.1080/00048400012349351     Document Type: Article

References (33)

1. Robert George, Making Men Moral (New York: Oxford University Press, 1993)
2. and James Fitzjames Stephen, Liberty, Equality, Fraternity (Indianapolis: Liberty Fund Inc., 1993). For both George and Stephen there seems to be another reason for traditional morals laws that's at least as important as moral paternalism, namely, to prevent the spread of vice to others. Stephen worries about the influence of 'bad examples' (Stephen, p. 90) and George about 'pollution of the moral environment' (George, p. 45).
3. Cf. Joel Feinberg, Harm to Others (New York: Oxford University Press, 1984), pp. 65-70, and Harmless Wrongdoing (New York: Oxford University Press, 1988), pp. 277-87. The force of Feinberg's objection is effectively blunted, I think, by restricting the focus of the moral paternalist's argument to self-regarding virtues and vices, as we did in our formulation of premises 1 and 2 above. There is no necessary connection between a trait's being an other-regarding vice and its being contrary to its bearer's interests (though for many traits, like injustice, there might very well be a firm, contingent connection between the two). But it is difficult to see how a trait could possibly be a self-regarding vice without its being contrary to its bearer's nonmoral interests. Here the notion of 'moral harm' has a legitimate application.
4. Cf. Joel Feinberg, Harmless Wrongdoing, pp. 3-17.
5. For this reason, the view invites the following objection, forcefully stated by H.L.A. Hart: 'Where there is no harm to be prevented and no potential victim to be protected, as is often the case where conventional sexual morality is disregarded, it is difficult to understand the assertion that conformity, even if motivated merely by fear of the law's punishment, is a value worth pursuing, notwithstanding the misery and sacrifice of freedom that it involves. The attribution of value to mere conforming behaviour, in abstraction from both motive and consequences, belongs not to morality but to taboo.... What is valuable...is voluntary restraint, not submission to coercion, which seems quite empty of moral value.' H.L.A. Hart, Law, Liberty, and Morality (Oxford University Press: 1963), p. 57.
6. John Locke, A Letter Concerning Toleration (Hackett Publishing Co., 1983), p. 27.
7. Cf. Jeremy Waldron, Liberal Rights (New York: Cambridge University Press, 1993)
8. chapter four ('Locke, toleration, and the rationality of prosecution'), and Brian Barry, 'How Not to Defend Liberal Institutions', in Bruce R. Douglas (ed.), Liberalism and the Good (New York: Routledge, 1990), pp. 44-58.
9. Hence, George says '[Laws] cannot, in any direct sense, "make men moral." Their contribution to making men moral must be indirect.' (Ibid., p. 44) Incidentally, I maintain that the Lockean objection to religious persecution and the 'virtue cannot be coerced' objection to moral paternalism are parallel and should both be rejected. George, I think, is inconsistent when he rejects the latter (pp. 25-7) but accepts the former, claiming that 'no one can search for religious truth, hold religious beliefs, or act on them authentically, for someone else. Searching, believing, and striving for authenticity are interior acts of individual human beings. As interior acts, they cannot be compelled' (pp. 220-1). If coercive laws can contribute indirectly to making men moral, then why can't they also contribute indirectly to making them properly faithful or pious?
10. Raz continues: 'First, it violates the condition of independence and expresses a relation of domination and an attitude of disrespect for the coerced individual. Second, coercion by criminal penalties is a global and indiscriminate invasion of autonomy.... That is, there is no practical way of ensuring that the coercion will restrict the victims' choice of repugnant options but will not interfere with their other choices.' Joseph Raz, The Morality of Freedom (New York: Oxford University Press, 1986), pp. 418-9.
11. George lodges this objection to the Raz claim that was just quoted in the text. Cf. George, ibid., pp. 184-5.
12. see Peter de Marneffe, 'Liberalism, Liberty, and Neutrality', Philosophy and Public Affairs 19 (1990), pp. 253-74.
13. insist that even the public service announcements are impermissible. But a weaker neutrality requirement is one that does 'not apply to all political questions but only to those involving what we may call constitutional essentials and questions of basic justice, John Rawls, Political Liberalism (New York: Columbia University Press, 1993, p. 213.
14. John Rawls accepts this 'respect autonomy' principle in A Theory of Justice (Cambridge, MA: Harvard University Press, 1971, pp. 248-50
15. as does Gerald Dworkin in 'Paternalism, in Morality and the Law, ed. Richard Wasserstrom (Belmont, CA: Wadsworth, 1971, pp. 107-26,
16. I defended a version of it in 'Paternalism and Respect for Autonomy, Ethics 100 (1990, 318-34.
17. Ronald Dworkin, Thomas Nagel, and others have recently invoked this principle in objecting to a state ban on physician assisted suicide. A blanket ban, they contend, 'could only be justified on the basis of a religious or ethical conviction about the value or meaning of life itself, a conviction that some of the patients in question reasonably reject. Hence, such a ban violates their autonomy. See Ronald Dworkin, Thomas Nagel, Robert Nozick, John Rawls, Thomas Scanlon, and Judith Jarvis Thomson, 'Assisted Suicide: The Philosophers' Brief, New York Review of Books (March 27, 1997), pp. 41-7.
18. Both George (ibid., pp. 133-7) and Will Kymlicka agree with this point. Kymlicka says 'our essential interest is in leading a good life.... Leading a good life is different from leading the life that we currently believe to be good-that is, we recognize that we may be mistaken about the worth or value of what we are currently doing.' Will Kymlicka, Liberalism, Community, and Culture (New York: Oxford University Press, 1989), p. 10.
19. This is the interpretation of the 'respect for autonomy' principle that Christine Korsgaard attributes to Kant. Cf. Christine Korsgaard, 'The Right to Lie: Kant on Dealing with Evil', Philosophy and Public Affairs 15/4 (1986). George (ibid., pp. 147-9) argues that Kant should not oppose morals laws as violations of autonomy, since he thought that the activities prohibited by the laws are 'heteronomous' (because the activities involve people treating themselves as mere means to pleasure).
20. Notice that if Mary has this preference, then certain 'benevolent lies' might help her to satisfy it. In his 'Autonomy and Benevolent Lies' Thomas E. Hill Jr.'s chief aim is to show that such lies are objectionable because they violate autonomy. But even Hill concedes that in those 'probably rare' cases where there is 'definitive evidence' that such lies would serve the agent's own 'distinctly human values', there is no violation of autonomy in telling them. See Thomas E. Hill Jr., Autonomy and Self-Respect (New York: Cambridge University Press, 1991), pp. 38-9.
21. For a survey of some different accounts of autonomy that have been defended in recent years, see John Christman (ed.), The Inner Citadel (New York: Oxford University Press, 1989).
22. Condition i) agrees with Gerald Dworkin's view that autonomy only requires 'procedural independence' (i.e. others may make your choices, but you must authorise them), not 'substantive independence' (i.e. you must make all important decisions yourself). Dworkin appears to reject the other two conditions that I've listed. Instead of ii) he favours the requirement that one have a second-order desire to have and act on one's first-order desires. This may not be a significant difference, because a second-order desire will ordinarily rest on an evaluative belief. But against iii), Dworkin objects that it turns autonomy in something achievable only by philosophers. Cf. Gerald Dworkin, The Theory and Practice of Autonomy (New York: Cambridge University Press, 1988), pp. 21-33.
23. Cf. too George Sher, Beyond Neutrality; Perfectionism and Politics (New York: Cambridge University Press, 1997).
24. chapter 3, for further defence of the claim that unconsented-to coercion can maximise long-term autonomy. I should note that Douglas Husak, Drugs and Rights (New York: Cambridge University Press, 1992), pp. 81-144, disputes the widely accepted view that hard drugs undermine autonomy because they are so highly addictive.
25. George, ibid., pp. 106-7. Stephen endorses a similar view about drunks: 'Of ten thousand people who get drunk, is there one who could say with truth that he did so because he had been brought to think on full deliberation and after free discussion that it was wise to get drunk? Would not every one of the ten thousand, if he told the real truth, say in some dialect or other-"I got drunk because I was weak and a fool, because I could not resist the immediate pleasure for the sake of future and indefinite advantage"?' Liberty, Equality and Fraternity, p. 20.
26. I assume that an intemperate life can be autonomous. Jeffrey Reiman argues otherwise. Cf. his 'Drug Addiction, Liberal Virtue, and Moral Responsibility', in Steven Luper-Foy and Curtis Brown (eds.), Drugs, Morality, and the Law (New York: Garland Publishing Co., 1994), pp. 25-47.
27. This would appear to be Reiman's view. He argues that 'courage, temperance, fortitude, and justice' are virtues only because they preserve one's own and others' 'capacity for rational self-government'. Cf. Reiman, ibid., pp. 32-4.
28. Chandran Kukathas, 'Are There Any Cultural Rights?' Political Theory 20/1 (1992), 105-139, p. 120.
29. Ronald Dworkin, California Law Review 11 (1989), p. 486. Note that if Dworkin accepts the teleological objection to moral paternalism, then he can no longer insist that the state should remain neutral on the question of what the good is. Hence, with this essay he abandons the position that he defended in the 'Liberalism' essay cited above.
30. Richard J. Arneson, 'Human Flourishing versus Desire Satisfaction', Social Philosophy and Policy 16/1 (1999).
31. Cf. John Finnis, in 'Legal Enforcement of Duties to Oneself: Kant v. Neo-Kantians', Columbia Law Review 87 (1987), 433-56.
32. For a deeper analysis and criticism of George's and Finnis's Roman Catholic, natural law-based objection to homosexuality, see Stephen Macedo, 'Against the Old Sexuality of the New Natural Law', in Robert P. George (ed.), Natural Law, Liberalism, and Morality (New York: Oxford University Press, 1996), pp. 27-48.
33. Brian Barry wryly observes that 'the tradition of natural law thinking has at its core the idea that the contents of natural law are in principle accessible to human reason. It is held to be simply an odd coincidence that the only people who find this plausible happen to be Roman Catholics.' Brian Barry, Justice as Impartiality (New York: Oxford University Press, 1995), p. 169.