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Limits of liberty
1. Liberty-limiting principles
Should cigarettes be banned?” A ban means that people in the country will now have no access to that thing. This is significant to one’s scope of freedom, as you now are less free. And a loss of freedom, you know, can be serious (e.g. a loss of freedom of movement, freedom of speech).
Thus the urgent issue for any government is this: any legislation that involves limitation of one’s freedom must be justified; there must be good reasons for restricting one’s freedom.
So what we are doing now is to look for principles that will tell us when it is justifiable to limit freedom, and when it is not. Such principles set the limit of our freedom, and set the limit of the power of government.
2. J.S. Mill’s position
Mill’s essay, “On liberty”, is perhaps the foundation and the reference point of every contemporary discussion of liberty:
The object of this Essay is to assert one very simple principle, as entitled to govern absolutely the dealings of society with the individual in the way of compulsion and control, whether the means used be physical force in the form of legal penalties, or the moral coercion of public opinion. That principle is, that the 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. His own good, either physical or moral, is not a sufficient warrant. 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 opinions of others, to do so would be wise, or even right. These are good reasons for remonstrating with him, or reasoning with him, or persuading him, or entreating him, but not for compelling him, or visiting him with any evil in case he do otherwise. To justify that, the conduct from which it is desired to deter him, must be calculated to produce evil to some one else. The only part of the conduct of any one, for which he is amenable to society, is that which concerns others. In the part which merely concerns himself, his independence is, of right, absolute. Over himself, over his own body and mind, the individual is sovereign.
It is, perhaps, hardly necessary to say that this doctrine is meant to apply only to human beings in the maturity of their faculties. We are not speaking of children, or of young persons below the age which the law may fix as that of manhood or womanhood. Those who are still in a state to require being taken care of by others, must be protected against their own actions as well as against external injury. For the same reason, we may leave out of consideration those backward states of society in which the race itself may be considered as in its nonage. (chapter 1, section 9, 10)
We can observe 4 important points in Mill’s passage here.
3. Four scenarios
Scenario A: A does harm to B. B does not voluntarily consent.
Mill: “That principle is, that the 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.” (Look for the qualification “prima facie” below.)
Feinberg: wants the harm principle to be more plausible: present and clear harm test.
Kant: are you respecting others’ autonomy? Or do you want to universalize it?
Utilitarian: are you maximizing utility?
This is all very interesting. Mill is an utilitarian, and he also proposes the harm principle. So Mill has two different positions, which justify interference by two different reasons. So, what is Mill’s true position? Mill explicitly says that the basis of the harm principle is utilitarian (which means that the very reason for upholding the harm principle is that it maximizes utility): “It is proper to state that I forego any advantage which could be derived to my argument from the idea of abstract right, as a thing independent of utility. I regard utility as the ultimate appeal on all ethical questions; but it must be utility in the largest sense, grounded on the permanent interests of man as a progressive being. Those interests, I contend, authorize the subjection of individual spontaneity to external control, only in respect to those actions of each, which concern the interest of other people. If any one does an act hurtful to others, there is a primâ facie case for punishing him, by law, or, where legal penalties are not safely applicable, by general disapprobation.” (On liberty, 1.11)
But it is not difficult to see that utilitarianism can conflict with the harm principle! Trolley cases. So what to think of this impasse? Here is one suggestion, by Michael Green: “Of course, we would do well to remember that Mill is talking about a general government policy. He can always insist that even if it makes good utilitarian sense to override individual liberty in a particular instance, it may not make sense to give the government the power to make that decision. After all, when governments have that kind of power, their bad decisions typically outweigh their good ones, according to Mill.”
Does drunk driving fall under this category?
Scenario B: A does harm to himself. And not voluntary (e.g. through ignorance, misinformation, excitement).
Mill: “It is, perhaps, hardly necessary to say that this doctrine is meant to apply only to human beings in the maturity of their faculties. We are not speaking of children, or of young persons below the age which the law may fix as that of manhood or womanhood. Those who are still in a state to require being taken care of by others, must be protected against their own actions as well as against external injury.”
But why think that other people must help him protect against himself and external injuries? (After all, why don’t you just mind your own business?) Mill’s answer, I suppose, will be utilitarian. (Other people like Kant may have a different answer: you have a duty to help.)
Feinberg: similar to Mill.
What examples are there?
- new medicine
Scenario C: A does harm to himself. And voluntary.
Mill: “His own good, either physical or moral, is not a sufficient warrant. 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 opinions of others, to do so would be wise, or even right.”
Why is his own good never a sufficient warrant for interference?
-> Utilitarian argument
But 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. [J.S. Mill, Utilitarianism and On Liberty (Fontana Library Edition, ed. By Mary Warnock, London, 1962) p. 214.]
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.' [J.S. Mill, Utilitarianism and On Liberty (Fontana Library Edition, ed. By Mary Warnock, London, 1962) p. 207.]
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. [J.S. Mill, Utilitarianism and On Liberty (Fontana Library Edition, ed. By Mary Warnock, London, 1962) p. 138.]
But whether external interference occurs wrongly and in the wrong place is entirely contingent. So if it interferes correctly and in the correct place (which seems plausible – after all, why think that we always know ourselves best?), Mill would have to admit that interference is warranted in this case.
There seems to be another argument. Gerald Dworkin says: “But there is also a non-contingent argument which runs through 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 rein 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 mans "mode of laying out his existence is the best, not because it is the best in itself, but because it is his own mode." [J.S. Mill, Utilitarianism and On Liberty (Fontana Library Edition, ed. By Mary Warnock, London, 1962) p. 197.]”
Quoting Mill: 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. [J.S. Mill, Utilitarianism and On Liberty (Fontana Library Edition, ed. By Mary Warnock, London, 1962) p. 186.]
To be able to choose is by itself valuable. So, as long as one voluntarily chooses to do something, he should be allowed to do so, even if it harms himself. Because of this reason, Mill believes that “his own good is never a sufficient warrant.”
Except for one particular case. Which is voluntary slavery. Mill:
In this and most civilised countries, for example, an engagement by which a person should sell himself, or allow himself to be sold, 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 persons voluntary acts, is consideration for his liberty. His voluntary choice is evidence that what he so chooses is desirable, or at least endurable, to him, and his good is on the whole best provided for by allowing him to take his own means of pursuing it. But by selling himself for a slave, he abdicates his liberty; he foregoes any future use of it beyond that single act.
He therefore defeats, in his own case, the very purpose which is the justification of allowing him to dispose of himself. He is no longer free; but is thenceforth in a position which has no longer the presumption in its favour, that would be afforded by his voluntarily remaining in it. 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. [J.S. Mill, Utilitarianism and On Liberty (Fontana Library Edition, ed. By Mary Warnock, London, 1962) pp 235-236.]
Dworkin, summarizing in his own words: “But 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-by which to justify some paternalistic interferences. Paternalism is justified only to preserve a wider range of freedom for the individual in question.”
Feinberg: never sufficient warrant for interference. Not even for voluntary slavery.
So Feinberg holds an even stronger position than Mill.
Core to Feinberg’s theory are two notions: personal sovereignty and voluntariness.
Voluntariness: “One assumes a risk in a fully voluntary way when one shoulders it while informed of all relevant facts and contingencies, and in the absence of all coercive pressure or compulsion. …”
There are, as Feinberg (and Mill too) acknowledges, apparent counterexamples.
Question: how to deal with them?
Feinberg’s tactics: (a) to conceive these cases as either non-voluntary (hence becoming scenario B) or falling under other principles (e.g. harm principle); (b) because there is a presumption of non-voluntariness, we can justify temporary interference.
Gerald Dworkin: has a really interesting distinct from that of Mill or Feinberg.
“real will”: while the recipient of harm voluntarily consents to the harm NOW, it is possible that he would regret/change his mind later on.
“There is however an important moral limitation on the exercise of such parental power which is provided by the notion of the child eventually coming 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.”
“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”
“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.”
“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. [Note: a much better case of weakness of the will than those usually given in ethics texts.] 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 non-rational 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.”
“Let me suggest types of situations in which it seems plausible to suppose that fully rational individuals would agree to having paternalistic 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 that is 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.”
Hard paternalist: interference can be justified (because it is in his own good)
Scenario D: A does harm to B. B voluntarily consents.
Find out, and specify what that specific idea is that you are arguing for or against.
Your task is to convince others, including people having opposite views, that you are correct.
Point 1: - don’t be too broad. Otherwise you won’t be able to cover it all. - specify your conclusion as precise as possible. (This is the same for all sciences – the hypothesis to be tested must be precisely specified.) - look for what interests you the most. Read the readings again, and very often topics will come up. - if you are arguing against certain idea or argument, make sure you do understand it in the first place. - if you have come up with some rough idea about what you might write on, just send me an email. My responsibility is to help you with the entire writing process.
Point 2: - You must contribute something new to the discussion. Let me example by an example. Suppose you want to argue that “utilitarianism is not a good moral theory” (which is a badly-picked thesis, because it is too imprecise and too broad). And then you reiterate the objections we already discussed in class, and that’s all. Surely such a paper is bad: are you convincing anyone by your paper? No! Because people already knew what you say … instead you are wasting their time to read it. Why should you waste your time to write rubbish and thereby waste my time to read rubbish? I do not mean that you cannot reiterate the stuff we discussed in class – you can, when you are adding something new to it. For example, new perspectives to look at the same old issue, new rebuttals to the argument, etc. This will make a good paper (e.g. you can argue that certain argument is, despite looking very plausible to most people, not that plausible in fact, so we should reconsider it again. Then in the body of your paper you shall point out why the argument is not that plausible.) - In any case, the golden test for whether you are contributing something new is: can my paper make my readers see things in a way they haven’t tried before? Of course, people have been discussing these issues for ages, so a lot have been said already. So in one sense you are probably not going to say anything new. But I am not demanding that much. I only want you to contribute something that is not already in the readings.
Should Cigarettes Be Banned?
Length: 6 pages (1709 Words)
Declaring a ban on consumption of a substance means that it has been put off the markets of that country and the citizens cannot have a legal access to it anymore. This is to say consumption of that substance is not anymore permitted within the jurisdiction of that country borders. So many items have been banned by different items for different reasons, ranging from security, health, moral and ethical reasons among others. Putting a ban amounts to taking off the freedom of people from having access to what they used to consume and like, and it could benefit some people, and offends others at the same time. For something to be banned there has to be a thorough examination and evaluation of that substance to identify the effects it brings to the whole society, to the individual and to the government and a body of administration. A ban is a limit to the freedom of access whereby it cuts off consumption without giving an alternative.
The question of whether cigarettes should be banned needs to be looked into, through the eye of the society and those of the individual smoker as well since it is an item that is consumed voluntarily but have negative effects on the consumer and the society around him/her. There are different myths that surround cigarettes smoking, and proving them right or wrong would be an excellent platform for basing the argument for or against banning of cigarettes in a country. Scholars and medical researchers have identified negative implications on social health and integration relating to cigarettes, but the process of justifying those findings is ongoing, bearing in mind that smoking is a voluntary issue that cannot be forced out of the individual in question without giving a concrete justification of the claims.