Abstract
In many countries medicine has become a service institution. People ask for all kinds of medical interventions that do not constitute treatments of diseases. Normally, for the very fact that these interventions are non-therapeutic, they have to be paid for by the person who seeks it. Many medical services are allowed, but there are limits. Not everything that is medically possible, required and would happily be privately paid for, is also allowed. In this paper, I am interested in the normative status of services that are either already banned or regarded as morally problematic, especially for paternalistic reasons. Examples include voluntary active euthanasia, surrogate motherhood, body modifications such as tongue splitting or stapling, and cognitive enhancements. Note that not all these services need to be offered by members of the medical profession to be deemed problematic, neither are they in reality brought about only by doctors. But an aspect of one potential justification of a ban has to do with the goals of medicine – hence my focus on the medical profession.
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Notes
- 1.
Though at least theoretically there might be multiple-party cases of paternalism that are not forms of indirect paternalism, see Feinberg (1986, p. 9). Feinberg used the term “two-party cases”, but this might be confusing as there are more than two parties involved in the practice of indirect paternalism. He obviously meant that two parties are the target of a paternalistic interference, where one party is interfered with and the other benefits.
- 2.
Because B seems to harm A one might think that these cases were already banned by the Millian harm principle. Yet it should be obvious that the voluntary consent changes the normative status of the same action here and, as we will see, it is even slightly misleading to say that B harms A.
- 3.
Feinberg (1986, p. 10 ff).
- 4.
Note that it is even possible to accept that impersonal harm is intrinsically bad, and still allow for other considerations, which have to do with personal interests, to outweigh this kind of harm and to conclude that there is no personal harm present where a person has an interest in an impersonal harm. A person may reasonably choose what is intrinsically bad, as long at it is not only intrinsically bad.
- 5.
It is indeed arguable whether soft paternalism should be called “paternalism” at all (see Feinberg 1986, p. 12). But even if intervention into non-voluntary choices were not paternalism after all, this would of course still allow to regard the cases we now refer to under the umbrella term “soft paternalism” as unjustified.
- 6.
Obviously it is an important issue what kind of undue influences there might be, which consequently undermine consent to (impersonal) harm. I cannot discuss this question here, but see, for instance, Kleinig (2010, 13 ff).
- 7.
In these cases we might also want to use the notion “autonomous choice”. I disregard the relation between autonomy and voluntariness for the purposes of this essay.
- 8.
There is an important debate regarding the possible coerciveness of inducements that I will ignore for the purposes of this paper (see, for instance Radcliffe Richards 2010).
- 9.
Devlin’s approach is not straightforwardly paternalistic, because he does not justify intervention by the resulting improvement (either morally or in terms of their prudential good) of the intervenee. Rather, he claims that all immoral behaviour might pose a threat to the integration of society. This reasoning, if successful, would be in line with the liberal harm principle.
- 10.
It is therefore unfair by Hart to replace the notion “public morality” by “popular morality” when describing Devlin’s thesis (Hart 1963, p. 19).
- 11.
“Ein Verstoß gegen die guten Sitten liegt nach ständiger Rechtsprechung vor, wenn eine Handlung dem Anstandsgefühl aller billig und gerecht Denkenden zuwiderläuft.”
- 12.
This approach and similar ideas are sometimes called “yuck factor”; see, for instance, Glover (1999).
- 13.
There is a variant of the idealised “right-minded person” approach, which I should mention, though I do not have the space to discuss it in this paper: If we do not interpret the approach as aiming at an empirical abstraction, referring to existing people, if not simply to the majority, we might still be able to make sense of the approach. We could interpret the notion of good morals – or the good for human beings more generally – as itself an ideal fuelled by philosophical argument, not merely by feelings of existing people. This is perfectionism. It has its own problems, but is still a viable option. Indeed, in another paper (Schramme 2009), where I discuss perfectionism in relation to paternalism, I endorse a form of perfectionism that I call negative perfectionism. It is negative, because it only addresses things that make a life bad.
- 14.
- 15.
Surely one may want to insist that the consent given by a person to the service of the assistant is normatively sufficient to justify providing assistance. Indeed, this seems to follow from the logic of the volenti principle. But one aspect of my paper is to show why assuming a normatively different status of indirect paternalism is plausible and that the volenti principle cannot be an absolute principle.
- 16.
I take ‘claim’ to be a moral notion here. It can be seen as a moral right, but I avoid the terminology to prevent confusion with legal rights. A person might have a legal entitlement to all kinds of morally dubious services, but these contracts are not my concern here, rather whether those contracts should be allowed. I also take ‘claim’ as to imply a duty of others to refrain from interference, so it is not just a ‘liberty’, in the Hohfeldian sense (Hohfeld 1923), where a person has permission to do something and hence is not doing something wrong. A justified claim, or entitlement, as such, does not include a duty of others to provide necessary means to pursue a goal, but I want to consider later how far such provision might indeed be morally required.
- 17.
Though we might want to introduce bans on, say, aggressive marketing of sweets.
- 18.
Some people might want to say that I am conceding far too much to the paternalist, as they would maintain that service users always have a claim right, if not to the provision of services, but to purchase services on a free market. In addition they might want to say that service providers have the right to sell their services, as long as these are neither immoral nor illegal. But this argument relies a) on the ideology of the free market, a topic I would like to avoid, and b) on a liberal reading of what might be regarded as immoral − namely only services that cause personal harm to others. My aim here is to scrutinize the paternalist strategy in relation to indirect paternalism without begging the question in favour of a strongly liberal, or even libertarian, point of view, although I have of course already hinted at certain aspects of a liberal viewpoint that seem to me unavoidable.
- 19.
Some enhancements, for instance, might lead to disadvantages of other, unenhanced, people.
- 20.
Since some of those services will very likely only be affordable for rich people, this might lead to injustice. I disregard this issue in this paper.
- 21.
Many paternalists support intervention into choices only where it enhances autonomy. Some paternalists have a particular, more demanding, reading of the concept of autonomy, which does not comply with the interpretation I endorse (but see Cholbi 2013 for an important alternative).
- 22.
I prefer the term “real liberty”, because it has been used in related discussions, especially in Philippe van Parijs’s book Real Freedom for All (1995). Occasionally “positive liberty” is also used in the debate, but it might cause some confusion with another notion of positive liberty that was discussed in a famous essay by Isaiah Berlin (2002).
- 23.
This formulation is less complicated than it should be. We might want to add that people should only be at liberty to do what they want to do when sufficiently informed, when no coercing influences are present, and so on.
- 24.
Obviously, it could be sought for other reasons, for instance because a potential mother finds pregnancy too inconvenient. In these cases we might consider a ban, because it is not in congruence with accepted practices.
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Schramme, T. (2015). Contested Services, Indirect Paternalism and Autonomy as Real Liberty. In: Schramme, T. (eds) New Perspectives on Paternalism and Health Care. Library of Ethics and Applied Philosophy, vol 35. Springer, Cham. https://doi.org/10.1007/978-3-319-17960-5_7
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