Harm Principle and Legal Paternalism
The conflict between the Harm Principle and Legal Paternalism
It is difficult to develop one worldview or a perfect ethical theory. People still need the rules by which they will live. Some argue that law should regulate morality and justify the state’s interference to protect individuals from harming themselves. Others believe that personal autonomy and freedom are above all and that legislation should not interfere with the life of a person. This essay aims at examining a conflict between the harm principle and legal paternalism, as well as their relation to the law. First of all, the paper will explain the difference between these two principles. Second, it will argue that legal paternalism justifies laws while the harm principle does not. It will also consider a counterargument, according to which the harm principle can justify laws in some cases, for example, to protect the society. Next, the example of euthanasia will be used to show how the two discussed principles relate to the law. Washington v. Glucksberg’s case will be employed to highlight that legal paternalism justifies criminal law that prohibits euthanasia. As an objection to this argument, the example of Oregon’s Death with Dignity Act will be analyzed to show that legal paternalism can justify euthanasia in some cases to assist terminally ill people and relieve their sufferings in a human and dignified way and accordance with the law. Legal paternalism and harm principles differently assess various issues related to law and morality, including the issue of euthanasia; however, the main thing is to find the middle ground between these two principles, somehow combining the strict rules of paternalism and based on the autonomy of harm principle.
The idea of John Stuart Mill, one of the founders of liberalism, is known as the harm principle. According to this view, the law can interfere with the lives of individuals only to prevent harm to other citizens and the whole society. Law is a kind of self-defense, so it can be reasonably applied if the actions of a person in any way threaten society (Mill, 2011). If there is no threat to others, then there is no reason for interference with the law. Another statement Mill makes in his essay On Liberty is the claim that law should be used to protect people from other people, but not to protect a person from himself or herself (Mill, 2011). According to this statement, if any action threatens only the one who does it, there is no reason for the interference of the state.
Mill’s statement is an argument against legal paternalism, the principle that means interference with an individual’s liberty for his or her good (Feinberg & Gross, 1975). Mill’s harm principle in its anti-paternalistic aspect has challenged the view that law should regulate private morality. The harm principle is opposed by legal paternalism, which is based on the limitation of a freedom that justifies coercion by the state to protect individuals from harming themselves, or at least to promote their welfare, whether they want it or not. Thus, parents justify their intervention in the lives of children, because they think they know better what their children need.
Presented in this way, on the one hand, legal paternalism seems to be dangerous. Deprived of the right to make their own choices, people will forget how to take responsibility (Thaler & Sunstein, 2009). Even children should be gradually freed from excessive control; otherwise, they will never become reasonable individuals. On the other hand, if paternalism will be completely rejected, then common sense and many long-established laws and customs will be threatened. For example, paternalism is a classic type of relationship between a doctor and a patient, which has been widely recognized in professional medical ethics for more than twenty centuries (Thaler & Sunstein, 2009). A doctor, like a father caring for his child, sympathizes with the patient, helps him or her, and takes responsibility for his or her decisions about treatment. However, in modern society, this type of relationship is gradually changing and displaced by informed consent and patients’ autonomous decisions.
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Legal paternalism justifies laws and the harm principle does not. Advocates of the former believe that the law must protect both society as a whole and its individuals, while advocates of the latter consider the law to be self-protection only for society, and it is necessary to apply it only when the actions of a person threaten public in general but not an individual him or herself. The harm principle protects the freedom of conscience, the human right to self-expression, and one’s way of life, so it partially does not justify laws aimed at restricting the freedom to protect a person from his or her conscious actions. Paternalism, in its turn, is the correlation of rights and freedoms determined by the system of mutual interest of the state in the individual and vice versa (Feinberg & Gross, 1975). Therefore, complete freedom of action is considered non-compliance with laws in some way. At the heart of paternalism, there is a desire of man to live at the expense of state support and trust the state to arrange his or her own life, while giving up some part of freedom in the name of the law. Thus, by paternalism, the law requires to wearing of safety helmets and safety belts; legislation regulates the use of some drugs that may be harmful to the user but not lead to antisocial conduct; it forbids different types of gambling. The law gives the right to use force within reasonable limits to prevent suicide (Feinberg & Gross, 1975). All these examples demonstrate that legal paternalism justifies laws.
Speaking about the relation between the law and Mill’s harm principle, on the one hand, the former in the form of moral police suppresses the originality, autonomy, and eccentricity of people and their experimentation with lifestyles. In the essay On Liberty, Mill writes that the greatest danger to the life of an individual in society is the moral tyranny of the majority, threatening to destroy the freedom of moral choice. Thus, it threatens all innovation and development opportunities, which leads society to stagnation and destruction (Mill, 2011). Mill’s main idea is that there is a private sphere of life where an individual is free to behave as he or she likes. Deviations from social norms allowed by people in their private life can be morally reprehensible, for example, gambling, drunkenness, and debauchery, but as long as their private life does not pose a threat or harm to others, it is not the business of society to interfere with it through the law.
On the other hand, the harm principle can justify laws in some cases, first of all, when they protect the society. Mill protected liberty while justifying the compulsory nature of law. Thus, he formulated an essential principle, according to which law can justify individual or collective interference if it is done for self-protection. In his essay On Liberty, Mill argues that the only purpose for which the harm principle can be rightfully applied to any member of a civilized society even against his or her will is to prevent harm to others (Mill, 2011). An individual’s good, physical or moral, is not a sufficient justification. The harm principle can justify laws in some other cases. It has one very important exception: it cannot be applied to children and people with serious mental disorders, that is, to those who are not able to take responsibility for their lives. For these individuals, Mill considers legitimate interference with the law in the name of their good (Mill, 2011). The privacy of other people, adults and sane, no matter how dangerous or self-destructive it can be, is their private affair. Moreover, Mill’s harm principle allows the state to protect a person from his or her ignorance, at least in a situation where there are good reasons to believe that the uninformed choice of an individual will be different from the state’s informed one.
To show how harm principle and legal paternalism relate to laws, the example of euthanasia and assisted suicide should be analyzed. First of all, legal paternalism justifies criminal law that prohibits active voluntary euthanasia under general homicide laws (Dworkin et al., 1997). In many countries, the act of euthanasia is not legitimate; however, some states have legalized it. Some nations have recognized that the legislation is too paternalistic and have abolished several prohibitions. However, many states, which are guided by the principle of legal paternalism, want to show that the law is aimed at preventing harm to society and the individual. Even if the personal choice seems to be incontrovertible, there are still many difficulties.
Euthanasia is inadmissible by law in many countries not only because it has religious and moral objections but also due to the possibility of diagnostic and prognostic errors. Supporters of this argument claim that in case of incorrect diagnosis, it is possible to lose human life groundlessly (Kamisar, 1958). Moreover, the haste in implementing euthanasia may not take into account that the incurable disease today can become treatable in the nearest future.
This principle protects an individual and the whole society, as the legalization of euthanasia increases the danger of abuse by doctors and relatives of the patient, especially in a situation of a hopeless condition that can lead to the discrediting of the medical profession, and have negative consequences for public life in general. It can cause the potential danger of forming a social strategy for getting rid of incompetent citizens who will face legal insecurity (Kamisar, 1958). Morality is one of the obstacles to abuse, so the moral legitimization of euthanasia, which gives it the status of a good cause, can open up unlimited opportunities for many other illegal and immoral actions.
One of the most famous examples of the prohibition of euthanasia is Washington v. Glucksberg case. The Washington State legislature passed a law prohibiting euthanasia. Opponents were against this law in the courts, stating that terminally ill adults have the fundamental right to receive medical assistance in committing suicide (Washington v. Glucksberg, 1997). The appellate courts claimed that the laws prohibiting medical assistance at the time of death are contrary to the US Constitution, based on their decision on the freedoms guaranteed by the Fourteenth Amendment to the United States Constitution. As a result, in 1997, the Supreme Court, having examined the case of the Washington State against Glucksberg, abolished the decisions of the appellate courts (Washington v. Glucksberg, 1997). It has failed to find grounds for recognizing assisted suicide as the constitutional right of a US citizen.
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Unlike legal paternalism, the harm principle does not justify a law that prohibits euthanasia. According to this approach, the government should not discourage physicians from helping patients terminate their lives simply because it is morally wrong. It may discourage them from doing so if permitting physician-assisted suicide would harm the public interest (Dworkin et al., 1997). The core of the legalization of euthanasia is the autonomy of the patient, suggesting the possibility of taking a strong-willed decision to stop fighting a disease. Based on a strong-willed decision of the patient, legal euthanasia is the fruit of a medical system that is based on autonomy. An example of this is the medical system of Holland. At the same time, assisted suicide law supporters believe that a sharp decrease in the quality of life due to a serious illness can be regarded as a loss of human dignity because the severe physical disability significantly reduces the sphere of self-realization, which is one of the fundamental social issues in the 20th and 21st centuries. The main thesis of Mill, the defender of the harm principle, about paternalism is that the completely free choice of a mature and rationally thinking human being in matters concerning only his or her interests is so precious that no one else, and especially the state, has the right to interfere, even if it is for the benefit of this person (Mill, 2011). It means that if an individual has decided to end his or her life humanely due to pain, suffering, or misery, nobody can prohibit him or her to do so.
As it can be seen, legal paternalism is against euthanasia in general, as this principle opposes autonomy. However, there can be any objection to such a point of view when considering physician-assisted suicide more like control than dying. Thus, the law in some states and countries allows physician-assisted suicide to help terminally ill patients to get rid of suffering. For example, one of the US states where euthanasia is legal in Oregon. The US Supreme Court confirmed the validity of the law on physician-assisted suicide in 1997 (Oregon’s Death with Dignity Act, 1997). According to Oregon’s Death with Dignity Act, an adult, who is a resident of Oregon, has been recognized as a terminally ill patient, and who has decided to end his or her life, is allowed by the law to make a request for medication which will help him or her to die in a humane and dignified manner by Oregon Revised Statute (Oregon’s Death with Dignity Act, 1997). In this case, legal paternalism can be considered as a principle, according to which law protects citizens and controls their decisions.
To sum up, legal paternalism and the harm principle are two different views on law and morality. The former, as it may seem, is based on the position that the state knows better what the interests of citizens are, rather than the citizens themselves, and aims to protect them from self-harm. Although now the whole world is moving to autonomy, legal paternalism can help people make correct and informed decisions. On the contrary, according to the harm principle, the individual’s good is not a sufficient reason to force him or her to do something, and the possibility to make an autonomous decision should be above all. The problem of euthanasia at the present stage has become a very controversial issue from both moral and legal viewpoints, as with the development of society, the views on its application have changed a lot, and the paternalistic principle gives way to the autonomy of a patient. The two approaches discussed contradict each other, but the law needs to find a golden meaning between them, taking personal freedom into account while still protecting people and reasonably controlling their decisions.
