Week 10 Discussion

Reflection on the Dworkin reading. Answer parts A & B (300 words max).

Part A) Describe an example of a law that is “pure paternalism” and a different example that is “impure paternalism.”

Part B) Give an argument for why one of these laws is ethically justified, or not.

Paternalism
Author: Gerald Dworkin
Original Publication: Morality and the Law, edited by
Richard Wasserstrom, 1971
I take as my starting point the “one very simple principle”
proclaimed by Mill in On Liberty…
That principle is, that the sole end for
which mankind are warranted, indivi-
dually 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 ever
right.
This principles […] is at least two principles: one
asserting that self-protection or the prevention of harm
to others is sometimes a sufficient warrant and the other
claiming that the individual’s own good is never a
sufficient warrant for the exercise of compulsion either
by the society as a whole or by its individual members.
I assume that no one, with the possible exception of
extreme pacifists or anarchists, questions the correctness
of the first half of the principle. This essay is an
examination of the [the second part]—the objection to
paternalistic interference with a man’s liberty.
Definition & Some Examples
By paternalism I shall understand roughly the
interference with a person’s liberty of action justified by
reasons referring exclusively to the welfare, good,
happiness, needs, interests, or values of the person being
coerced.
John Stuart Mill
He is a well-known English
philosopher from the 1800s. He
was a proponent of
Utilitarianism and also cared a
lot about autonomy.
(Wikipedia)
Question for Understanding:
How would you put Mill’s
principle in your own words?
Deep Dive: Colonialism
Did you catch how Mill used the
word “civilized” in his principle?
What is the logical implication
of how we thinks we are
justified in treating “uncivilized”
communities?
Consider: Mill wrote this
passage one year after the
British Empire usurped the
sovereignty of India, and had
taken control over many other
countries / foreign
communities. Mill did criticize
some aspects of British
colonialism, but not the
practice as a whole.
Concept: Colonialism
The practice of one political or
cultural group forcibly taking
control over other people and
territory, politically,
economically, and/or culturally.
Concepts & Terms

One is always well-advised to illustrate one’s definition by examples […] The following is a
list of the kinds of interferences I have in mind as being paternalistic.
1. Laws requiring motorcyclists to wear safety helmets when operating their
machines.
2. Laws forbidding person 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, for example, homosexuality among
consenting adults in private.
6. Laws regulating the use of certain drugs that may have harmful consequences to the
user but do not lead to antisocial 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 interests for loans.
11. Laws against dueling.
In additional to laws that attach criminal or civil penalties to certain kinds of action there
are laws, rules, regulations, decrees that make it rather difficult or impossible for people to
carry out their plans and that are also justified on paternalistic grounds. Examples of this
are:
1. Laws regulating the types of contracts that will be upheld as valid by the courts; for
example, no man may make a valid contract for perpetual involuntary servitude (an
example of Mill’s to which I shall return).
2. […]
3. Not allowing as a defense to a charge of murder or assault the consent of the victim.
4. 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 […]
5. 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
unintentionally as well as intentional injuries.
All of my examples are of existing restrictions on the liberty of individuals. Obviously one
can think of interferences that have not yet been imposed. Thus one might ban the sale of
cigarettes, or require that people wear safety belts in automobiles (as opposed to merely
having them installed) […] Pure vs Impure Paternalism
Bearing these examples in mind, let me return to the
characterization of paternalism. I said earlier that I meant
by the term, roughly, interference with a person’s liberty
for his own good. But, as some of the examples show, the
class of persons whose good is involved is not always
identical with the class of persons whose freedom is
restricted. Thus, in the case of professional licensing it is
the practitioner who is directly interfered with but it is
the would-be patient whose interests are presumably
being served. Not allowing the consent of the victim to be
a defense to certain types of crime primarily affects the
would-be aggressor but it is the interests of the willing
victim what we are trying to protect. Sometimes a person
may fall into both classes as would be the case if we
banned the manufacture and sale of cigarettes and a
given manufacturer happened to be a smoker as well.
Thus we may first divide paternalistic interferences into
“pure” and “impure” cases. In “pure” paternalism the
class of persons whose freedom is restricted is identical
with the class of persons whose benefit is intended to be
promoted by such restrictions. Examples: the making of
suicide a crime, requiring passengers in automobiles to
wea seat belts, requiring a Christian Scientist to receive a
blood transfusion. In the case of “impure” paternalism
in trying to protect he welfare of a class of persons we
find that the only way to do so will involve restricting the
freedom of other persons besides those who are
benefitted.
Now it might be thought that there are not cases of
“impure’ paternalism since any such case could always be
justified on nonpaternalistic grounds, that is, in terms of
preventing harm to others. Thus we might ban cigarette
manufacturers from continuing to manufacture their
product on the grounds that we are preventing them
from causing illness to others in the same way that we
prevent other manufacturers from releasing pollutants
into the atmosphere, thereby causing danger to the
members of the community. The difference is, however,
that in the former but not the latter case the harm is of
such a nature that it could be avoided by those
individuals affected if they so chose. The incurring of the
Concept: Pure Paternalism
“the class of persons whose
freedom is restricted is identical
with the class of persons whose
benefit is intended to be
promoted by such restrictions.”
Concept: Impure Paternalism
“in trying to protect he welfare
of a class of persons we find
that the only way to do so will
involve restricting the freedom
of other persons besides those
who are benefitted.”
Application
What are other examples of
pure and impure paternalism?
Critical Engagement
Do you agree with Dworkin’s
analysis that banning the sales
of cigarettes would be a kind of
paternalism, whereas banning a
company from dumping
pollutants is a form of
protection, not paternalism?
Argument
Do you think the sale of
cigarettes should be banned for
paternalistic reasons? Why or
why not?
Concepts & Terms

Dworkin 4
harm requires, so to speak, the active cooperation of the victim. It would be mistaken
theoretically and hypocritical in practice to assert that our interference in such cases is just
like our interference in standard cases of protecting others form harm. […]
Paternalism then will always involve limitations on the liberty of some individuals in their
own interest but it may also extend to interferences with the liberty of parties whose
interests are not in question.
[…] This way of viewing matters provides us with another characterization of paternalism
in general. Paternalism might be thought of as the use of coercion to achieve a good
which is not recognized as such by those persons for whom the good is intended.
[…] While this formulation captures the heart of the matter—it is surely what Mill is
objecting to in On Liberty—the matter is not always quite like that. For example, when we
force motorcyclists to wear helmets we are trying to promote a good—the protection of the
person from injury—which is surely recognized by most of the individuals concerned. It is
not that a cyclist doesn’t value his bodily integrity; rather, as a supporter of such legislation
would put it, he either places, perhaps irrationally, another value or good (freedom from
wearing a helmet) above that of physical well-being or, perhaps, while recognizing the
danger in the abstract, he either does not fully appreciate it or he underestimates the
likelihood of its occurring. But now we are approaching the question of possible
justifications of paternalistic measures and the rest of this essay will be devoted to that
question.
Mill’s Objection to Paternalism
[…] An initial feature that strikes one is the absolute nature of Mill’s prohibitions against
paternalism. It is so unlike the carefully qualified admonitions of Mill and his fellow
utilitarians on other moral issues. He speaks of self-protection as the sole end warranting
coercion, of the individual’s own goals as never being a sufficient warrant […] The structure
of Mill’s argument is as follows:
1. Since restraint is an evil the burden of proof is on those who propose such restraint.
2. Since the conduct which is being considered is purely self-regarding, the normal
appeal to the protection of the interests of others is not available.
3. Therefore we have to consider whether reasons involving reference to the
individual’s own good, happiness, welfare, or interests are sufficient to overcome
the burden of justification.
4. We either cannot advance the interests of the individual by compulsion, or the
attempt to do so involves evil which outweighs the good done.
5. Hence the promotion of the individual’s own interests does not provide a sufficient
warrant for the use of compulsion.
Clearly the operative premise here is 4 […] bolstered by claims about the status of the
individual as judge and appraiser of his welfare, interests, needs, etc.:
With respect to his own feelings and circumstances, the most ordinary man
or woman has means of knowledge immeasurably surpassing those that can

be possessed by anyone else. He is the person most interested in his own
wellbeing: the interest which any other person, except in cases of strong
personal attachment, can have in it is trifling, compared to that which he
himself has. (Mill)
These claims are used to support the following generalizations concerning the utility of
compulsion for paternalistic purposes:
[…] the strongest of all the arguments against the interference of the public
with purely personal conduct is that when it does interfere, the odds are that
it interferes wrongly and in the wrong place. All errors which [the individual]
is likely to commit against advice and warning are far outweighed by the evil
of allowing others to constrain him to what they deem his good. (Mill)
Performing the utilitarian calculation by balancing the advantages and disadvantages, we
find that:
Mankind are greater gainers by suffering each other to live as seems good to
themselves, than by compelling each other to live as seems good to the rest.
(Mill)
[…] This is clearly the main channel of Mill’s thought and it is one which has been subjected
to vigorous attack from the moment it appeared-most often by fellow utilitarians. The link
that they have usually seized on is, as Fitzjames Stephen put it in Liberty, Equality,
Fraternity, the absence of proof that the “mass of adults are so well acquainted with their
own interests […] that no compulsion or restraint put upon them by any others […] can
really promote them.”
Now it is interesting to note that Mill himself was aware of some of the limitations on the
doctrine that the individual is the best judge of his own interests. In his discussion of
government intervention in general (even where the intervention does not interfere with
liberty but provides alternative institutions to those of the market) after making claims
that are parallel to those just discussed, for example, “People understand their own
business and their own interests better, and care for them more, than the government does,
or can be expected to do,” he goes on to an intelligent discussion of the “very large and
conspicuous exceptions” (Mill) to the maxim. […]
There are [some goods for which the desire for them]
is least felt where the need is greatest. This is peculiarly true of those things
which are chiefly useful as tending to raise the character of human beings.
The uncultivated cannot be competent judges of cultivation. Those who most
need to be made wiser and better, usually desire it the least, and, if they
desired it, would be incapable of finding the way to it by their own lights.
[…] A second exception to the doctrine that individuals are the best judges of
their own interests, is when an individual attempts to decide irrevocably now
what will be best for his interest at some future and distant time. (Mill)

In short, we get a presumption, not an absolute prohibition. The question is why doesn’t
the argument against paternalism go the same way?
I suggest that the answer lies in seeing that in addition to a purely utilitarian argument Mill
uses another as well. […] A consistent Utilitarian can only argue against paternalism on the
grounds that it […] does not maximize the good. It is always a contingent question that may
be refuted by the evidence.
But there is also a non-contingent argument which runs through [Mill’s] On Liberty. When
Mill states that “there is a part of the life of every person who has come to years of
discretion, within which the individuality of that person ought to reign uncontrolled either
by any other person or by the public collectively,” he is saying something about what it
means to be a person, an autonomous agent. It is because coercing a person for his own
good denies this status as an independent entity that Mill objects to it so strongly and in
such absolute terms. To be able to choose is a good that is independent of the wisdom of
what is chosen. A man’s “mode of laying out his existence is the best, not because it is the
best in itself, but because it is his own mode.” It is the privilege and proper condition of a
human being, arrived at the maturity of his faculties, to use and interpret experience in his
own way […]
Mill’s One Exception to His Prohibition Against Paternalism
Protecting a Wider Range of Freedom
Consider the one exception [Mill supports] to his prohibition against paternalism.
In this and most civilized countries, for example, an engagement by which a person should
sell himself […] as a slave, would be null and void; neither enforced by law nor by opinion.
The ground for thus limiting his power of voluntarily disposing of his own lot in life, is
apparent, and is very clearly seen in this extreme case. The reason for not interfering,
unless for the sake of others, with a person’s voluntary acts, is consideration for his liberty.
[…] By selling himself for a slave, he abdicates his liberty; he forgoes any further use of it
beyond that single act. Here therefore defeats, in his own case, the very purpose which is
the justification of allowing him to dispose of himself. […] The principle of freedom cannot
require that he should be free not to be free. It is not freedom to be allowed to alienate his
freedom.
[…] The main consideration for not allowing such a contract is the need to preserve the
liberty of the person to make future choices. This gives us a principle—a very narrow one,
but which to justify some paternalistic interferences. Paternalism is justified only to
preserve a wider range of freedom for the individual in question. How far this principle
could be extended […] remains to be discussed.
What I have tried to show so far is that there are two strains of argument in Mill-one a
straightforward utilitarian mode of reasoning and one which relies not on the goods which
free choice leads to but on the absolute value of the choice itself. The first cannot establish
any absolute prohibition but at most a presumption and indeed a fairly weak one given

some fairly plausible assumptions about human psychology; the second, while a stronger
line of argument, seems to me to allow on its own grounds a wider range of paternalism
than might be suspected. I turn now to a consideration of these matters.
Other Justifiable Instances of Paternalism (stemming from Mill’s principle)
Parenting
We might begin looking for principles governing the acceptable use of paternalistic power
in cases where it is generally agreed that it is legitimate. Even Mill intends his principles to
be applicable only to mature individuals, not those in what he calls “nonage.”
What is it that justifies us in interfering with children? The fact that they lack some of the
emotional and cognitive capacities required in order to make fully rational decisions. It is
an empirical question to just what extent children have an adequate conception of their
own present and future interests but there is not much doubt that there are many
deficiencies. For example, it is very difficult for a child to defer gratification for any
considerable period of time. Given these deficiencies and given the very real and
permanent dangers that may befall the child, it becomes not only permissible but even a
duty of the parent to restrict the child’s freedom in various ways.
There is however an important moral limitation on the exercise of such parental power
which is provided by the notion of the child eventually corning to see the correctness of his
parent’s interventions. 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 […]
Irrationality / Weakness of Will
Let me start by considering a case where the consent is not hypothetical in nature. Under
certain conditions it is rational for an individual to agree that others should force him to act
in ways that, at the time of action, the individual may not see as desirable. If, for example, a
man knows that he is subject to breaking his resolves when temptation is present, he may
ask a friend to refuse to entertain his requests at some later stage.
A classical example is given in the Odyssey when Odysseus commands his men to tie him to
the mast and refuse all future orders to be set free, because he knows the power of the
Sirens to enchant men with their songs. Here we are on relatively sound ground in later
refusing Odysseus’ request to be set free. He may even claim to have changed his mind but,
since it is just such changes that he wished to guard against, we are entitled to ignore them.
A process analogous to this may take place on asocial rather than individual basis. An
electorate may mandate its representatives to pass legislation which when it comes time to
“pay the price” may be unpalatable. I may believe that a tax increase is necessary to halt
inflation though I may resent the lower pay check each month. However in both this case
and that of Odysseus, the measure to be enforced is specifically requested by the party
involved and at some point in time there is genuine consent and agreement on the part of those persons whose liberty is infringed. Such is not the case for the paternalistic measures
we have been speaking about. What must be involved here is not consent to specific
measures but rather consent to a system of government, run by elected representatives,
with an understanding that they may act to safeguard our interests in certain limited ways.
I suggest that since we are all aware of our irrational propensities, deficiencies in cognitive
and emotional capacities, and avoidable and unavoidable 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
carefully defined limits. What I am looking for are 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 […]
Irreversible Bad Choices
Let me suggest types of situations in which it seems plausible to suppose that rational
individuals would agree to having restrictions imposed upon them. It is reasonable to
suppose that there are “goods” such as health which any person would want to have in
order to pursue his own good—no matter how that good is conceived. This is an argument
used in connection with compulsory education for children but it seems to me that it can be
extended to other goods which have this character. Then one could agree that the
attainment of such goods should be promoted even when not recognized to be such, at the
moment, by the individuals concerned.
–First class of cases
An immediate difficulty arises from the fact that men are always faced with competing
goods and that there may be reasons why even a value such as health–or indeed life-may
be overridden by competing values. Thus the problem with the Christian Scientist and
blood transfusions. It may be more important for him to reject “impure substances” than to
go on living. The difficult problem that must be faced is whether one can give sense to the
notion of a person irrationally attaching weights to competing values.
Consider a person who knows the statistical data on the probability of being injured when
not wearing seat belts in an automobile and knows the types and gravity of the various
injuries. He also insists that the inconvenience attached to fastening the belt every time he
gets in and out of the car outweighs for him the possible risks to himself. I am inclined in
this case to think that such a weighing is irrational. Given his life plans, which we are
assuming are those of the average person, his interests and commitments already
undertaken, I think it is safe to predict that we can find inconsistencies in his calculations at
some point. I am assuming that this is not a man who for some conscious or unconscious
reasons is trying to injure himself nor is he a man who just likes to “live dangerously.” I am
assuming that he is like us in all the relevant respects but just puts an enormously high
negative value on inconvenience-one which does not seem comprehensible or reasonable. It is always possible, of course, to assimilate this person to creatures like myself. I, also,
neglect to fasten my seat belt and I concede such behavior is not rational but not because I
weigh the inconvenience differently from those who fasten the belts. It is just that having
made (roughly) the same calculation as everybody else, I ignore it in my actions. A
plausible explanation for this deplorable habit is that although I know in some intellectual
sense what the probabilities and risks are I do not fully appreciate them in an emotionally
genuine manner.
We have two distinct types of situation in which a man acts in a nonrational fashion. In one
case he attaches incorrect weights to some of his values; in the other he neglects to act in
accordance with his actual preferences and desires. Clearly there is a stronger and more
persuasive argument for paternalism in the latter situation. Here we are really not—by
assumption—imposing a good on another person.
But why may we not extend our interference to what we might call evaluative delusions?
After all, in the case of cognitive delusions we are prepared, often, to act against the
expressed will of the person involved. If a man believes that when he jumps out the
window he will float upwards—Robert Nozick’s example—would not we detain him,
forcibly if necessary? The reply will be that this man doesn’t wish to be injured and if we
could convince him that he is mistaken as to the consequences of his action, he would not
wish to perform the action. But part of what is involved in claiming that the man who
doesn’t fasten his seat belts is attaching an incorrect weight to the inconvenience of
fastening them is that if he were to be involved in an accident and severely injured he
would look back and admit that the inconvenience wasn’t as bad as all that.
So there is a sense in which, if I could convince him of the consequences of his action, he
also would not wish to continue his present course of action ….Let me now consider
another factor which comes into play in some of these situations which may make an
important difference in our willingness to consent to paternalistic restrictions.
Some of the decisions we make are of such a character that they produce changes which are
in one or another way irreversible. Situations are created in which it is difficult or
impossible to return to anything like the initial stage at which the decision was made. In
particular, some of these changes will make it impossible to continue to make reasoned
choices in the future. I am thinking specifically of decisions which involve taking drugs that
are physically or psychologically addictive and those which are destructive of one’s mental
and physical capacities. I suggest we think of the imposition of paternalistic interferences
in situations of this kind as being a kind of insurance policy which we take out against
making decisions which are far-reaching, potentially dangerous, and irreversible. Each of
these factors is important […]
–Second class of cases
A second class of cases concerns decisions which are made under extreme psychological
and sociological pressures. I am not thinking here of the making of the decision as being
something one is pressured into—for example, a good reason for making duelling, illegal is
that unless this is done many people might have to manifest their courage and integrity in ways in which they would rather not do so—but rather of decisions, such as that to commit
suicide, which are usually made at a point where the individual is not thinking clearly and
calmly about the nature of his decision. In addition, of course, this comes under the
previous heading of all-too-irrevocable decisions.
Now there are practical steps which a society could take if it wanted to decrease the
possibility of suicide-for example not paying social security benefits to the survivors or, as
religious Institutions do, not allowing persons to be buried with the same status as natural
deaths. I think we may count these as interferences with the liberty of persons to attempt
suicide and the question is whether they are justifiable.
Using my argument schema the question is whether rational individuals would consent to
such limitations. I see no reason for them to consent to an absolute prohibition but I do
think it is reasonable for them to agree to some kind of enforced waiting period. Since we
are all aware of the possibility of temporary states, such as great fear or depression, that
are inimical to the making of well-informed and rational decisions, it would be prudent for
all of us if there were some kind of institutional arrangement whereby we were restrained
from making a decision which is so irreversible.
What this would be like in practice is difficult to envisage and it may be that if no practical
arrangements were feasible we would have to conclude that there should be no restriction
at all on this kind of action. But we might have a “cooling off’ period, in much the same way
that we now require couples who file for divorce to go through a waiting period. Or, more
far-fetched, we might imagine a Suicide Board composed of a psychologist and another
member picked by the applicant. The Board would be required to meet and talk with the
person proposing to take his life, though its approval would not be required.
–Third class of cases
A third class of decisions—these classes are not supposed to be disjoint—involves dangers
which are either not sufficiently understood or appreciated correctly by the persons
involved. Let me illustrate, using the example of cigarette smoking, a number of possible
cases.
1. A man may not know the facts—e.g., smoking between 1 and 2 packs a day shortens
life expectancy 6.2 years, the costs and pain of the illness caused by smoking, etc.
2. A man may known the facts, wish to stop smoking, but not have the requisite
willpower.
3. A man may know the facts but not have them play the correct role in his calculation
because, say, he discounts the danger psychologically since it is remote in time
and/or inflates the attractiveness of other consequences of his decision which he
regards as beneficial.
In case 1 what is called for is education, the posting of warnings et cetera. In case 2 there is
no theoretical problem. We are not imposing a good on someone who rejects it. We are
simply using coercion to enable people to carry out their own goals. (Note: There obviously
is a difficulty in that only a subclass of the individuals affected wish to be prevented from doing what they are doing.) In case 3 there is a sense in which we are imposing a good on
someone in that given his current appraisal of the facts he doesn’t wish to be restricted. But
in another sense we are not imposing a good since what is being claimed—and what must
be shown or at least argued for—is that an accurate accounting on his part would lead him
to reject his current course of action. Now we all know that such cases exist, that we are
prone to disregarding dangers that are only possibilities, that immediate pleasures are
often magnified and distorted.
If in addition the dangers are severe and far reaching, we could agree to allow the state a
certain degree of power to intervene in such situations. The difficulty is in specifying in
advance, even vaguely, the class of cases in which intervention will be legitimate. A related
difficulty is that of drawing a line so that it is not the case that all ultra-hazardous activities
are ruled out, for example, mountain-climbing, bull-fighting, sports-car racing, et cetera.
There are some risks—even very great ones-which a person is entitled to take with his life.
A good deal depends on the nature of the deprivation-for example, does it prevent the
person from engaging in the activity completely or merely limit his participation-and how
important to the nature of the activity is the absence of restriction when this is weighed
against the role that the activity plays in the life of the person. In the case of automobile
seat belts, for example, the restriction is trivial in nature, interferes not at all with the use
or enjoyment of the activity, and does, I am assuming, considerably reduce a high risk of
serious injury. Whereas, for example, making mountain-climbing illegal completely
prevents a person from engaging in an activity which may play an important role in his life
and his conception of the person he is.
In general, the easiest cases to handle are those which can be argued about in the terms
which Mill thought to be so important-a concern not just for the happiness or welfare, in
some broad sense, of the individual but rather a concern for the autonomy and freedom of
the person. I suggest that we would be most likely to consent to paternalism in those
instances in which it preserves and enhances for the individual his ability to rationally
consider and carry out his own decisions.
I have suggested in this essay a number of types of situations in which it seems plausible
that rational men would agree to granting the legislative powers of a society the right to
impose restrictions on what Mill calls “self-regarding” conduct. However, rational men
knowing something about the resources of ignorance, ill-will, and stupidity available to the
lawmakers of a society—a good case in point is the history of drug legislation in the United
States—will be concerned to limit such intervention to a minimum. I suggest in closing two
principles designed to achieve this end.
In all cases of paternalistic legislation there must be a heavy and clear burden of proof
placed on the authorities to demonstrate the exact nature of the harmful effects (or
beneficial consequences) to be avoided (or achieved) and the probability of their
occurrence. The burden of proof here is twofold—what lawyers distinguish as the burden
of going forward and the burden of persuasion. That the authorities have the burden of
going forward means that it is up to them to raise the question and bring forward evidence
of the evils to be avoided. Unlike the case of new drugs, where the manufacturer must produce some evidence that the drug has been tested and found not harmful, no citizen has
to show with respect to self-regarding conduct that it is not harmful or promotes his best
interest. In addition the nature and cogency of the evidence for the harmfulness of the
course of action must be set at a high level. To paraphrase a formulation of the burden of
proof for criminal proceedings-better ten men ruin themselves than one man be unjustly
deprived of liberty.
Finally, I suggest a principle of the least restrictive alternative. If there is an alternative way
of accomplishing the desired end without restricting liberty although it may involve great
expense, inconvenience, etc., the society must adopt it.