Killjoys

A Critique of Paternalism

Christopher Snowdon

• Publisher: London Publishing Partnership
• Year: 2017
• ISBN:
  9780255367516
• Edition: 1

Eating sugary food, drinking alcohol and smoking cigarettes are legal activities. But politicians still use the law to discourage them. They raise their price, prohibit or limit their advertisement, restrict where they can be sold and consumed, and sometimes ban them outright. These politicians thereby violate John Stuart Mill's famous principle that people should be free to do whatever they like, provided they harm no one but themselves. Why? What can justify these paternalistic policies? Killjoys reviews the full range of justifications that have been offered: from the idea that people are too irrational to make sensible decisions to the idea that they are effectively compelled by advertising to harm themselves. The author, Christopher Snowdon, exposes the logical or factual errors that undermine each purported justification. He thus provides a comprehensive critique of the health paternalism that has been adopted by governments around the world.

1. Paternalism and liberalism
   Every day, people do things of which others disapprove. They do things that might seem unwise or immoral. They do things that are unhealthy or dangerous. They do things they might regret. This is a book about what happens when the government tries to stop them.
   In recent decades, government paternalism has switched its focus from public morality to public health. Religion has lost its hold over politics. Free speech is far from absolute but blasphemy laws are no more and it is half a century since theatrical productions had to be approved by the Lord Chamberlain. Today, paternalist or ‘nanny state’ regulation attempts to reduce the consumption of legal products that can have a negative effect on the health of the user if consumed in excess or over a period of many years. The usual targets are alcohol, tobacco, ‘junk food’ and sugary drinks, with e-cigarettes and gambling products sometimes thrown into the mix.
   Regulatory responses range from warning labels to full prohibition, with typical policies including sin taxes, marketing bans and sale restrictions, all aimed at curtailing what paternalists call ‘the Three As’: Affordability, Availability and Advertising. Mandatory product reformulation, graphic warnings, bans on branding and minimum pricing are also part of the armoury.
   Most governments can implement any or all of these policies, but should they? Increasingly, it is assumed that something must be done. It is assumed that the state should act if people are eating more sugar than is recommended or drinking more alcohol than government guidelines advise. By definition, guidelines and recommendations imply free choice and yet the message from health campaigners is that the state cannot rest until everyone has complied with them.
   A demand for something to be done can morph into a demand for anything to be done. Faced with a series of supposed crises and epidemics – the binge-drinking crisis, the obesity epidemic, etc. – the government is told to take action at all costs. But taking action at all costs is a terrible way to make policy. Even a country fighting a war of national survival would not disregard all costs in the hope of making progress. Why, then, should the weighing of costs and benefits go out of the window when it comes to lifestyle regulation?
   In practice, governments are not usually run by zealots and the political choice is rarely between complete prohibition and total laissez-faire. Few people deny the need for some form of regulation. The question is whether regulation should be designed to protect people from themselves. Before answering that question, you might want to hear the specifics of each case. What is the person doing? How great is the risk? What are the benefits? Many people are prepared to accept a degree of government paternalism in some areas but not in others.
   Or you might answer according to your philosophy. Perhaps you feel that people are not always capable of making their own decisions and that the combined wisdom of experts should take precedence. Alternatively, you may feel that liberty is sacrosanct and that individuals must be free to choose so long as other people do not suffer from their choices. The latter position is a crude summation of John Stuart Mill’s stance on individual liberty, and it is with Mill that we will begin.
   The liberal view
   It is almost impossible to start any discussion of paternalism without mentioning Mill’s famous ‘harm principle’, which places a limit on government intervention in human behaviour. The principle, wrote Mill (1987: 68), 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 civilised 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 opinion of others, to do so would be wise, or even right.
   When these words were first published in 1859 the doctrine of individual liberty was not new, but it was Mill who laid it out in the ‘most comprehensive, extensive, and systematic form’ (Himmelfarb 1987: 9). There is a clarity of thought in On Liberty that makes the concepts seem simpler than they are. Mill himself described his golden rule as ‘one very simple principle’ but generations of scholars have found it to be anything but. There is limitless disagreement about the meaning and application of the harm principle. Yet its fundamental idea – that government is justified in protecting people from others but never from themselves – resonated in Victorian Britain and still resonates today. To a large extent, it is this belief that distinguishes liberal democracies from states which require the individual to be subsumed by the religious, collectivist or nationalist beliefs of their rulers.
   Even those who have no appetite for liberty understand that the concept of freedom has an enduring appeal. Mussolini paid lip service to it in The Doctrine of Fascism when he wrote (Mussolini and Gentile 1932: 17):
   In our state the individual is not deprived of freedom. In fact, he has greater liberty than an isolated man, because the state protects him and he is part of the state.
   We will not waste too many words on disingenuous dictators except to note that Il Duce felt obliged to redefine the concept of freedom rather than dismiss it entirely. Nobody wishes to be regarded as a freedom-hater and few people self-identify as paternalists or nanny statists. Those who breach the harm principle usually do so by distorting the concept of liberty or by arguing that Mill’s arguments do not apply to their own time and place. Most people innately feel that adults should be afforded a great deal of autonomy. In a 2014 ComRes poll, 70 per cent of respondents agreed that ‘individuals should be responsible for their own lifestyle choices and the government should not intervene’. Only 21 per cent thought that ‘there should be more government regulation to stop people making unhealthy lifestyle choices’ (ComRes 2014). We believe, in theory at least, that people should live and let live.
   An analysis of Mill’s philosophy is beyond the reach of this book, but a few points that are relevant to our topic of paternalism should be raised. There is much debate about the meaning of ‘harm’ as Mill uses it in On Liberty, but it is clear that he did not intend it to be defined so broadly as to include the psychological impact of taking offence, feeling sad or being bereaved. If we were to include such emotions as harm, it would allow far more government intervention than Mill would have countenanced. The mere knowledge that an irreligious or risky activity is taking place somewhere in the world could be enough to distress a moral puritan. When Mill wrote about harm, he meant only direct harm to an individual’s person or property.
   A more interesting question is whether individual liberty is as important as Mill believed. He assumed that society would be better off if people made their own choices, unencumbered by the tyranny of majority opinion, but not everybody has been convinced. For Mill, freedom, originality, eccentricity and genius are indivisible. Genius cannot thrive without the oxygen of liberty, he argues, and ‘the amount of eccentricity in a society has generally been proportional to the amount of genius, mental vigour, and moral courage it contained’ (Mill 1987: 132). This could be true but it looks rather like a bald assertion, as does Mill’s claim that ‘the chief danger’ of his time was that ‘so few dare to be eccentric’. It is not obvious that eccentricity per se has any great benefit to society and it could be argued that exceptional genius is not the product of the environment but of genetics and education. In any case, genius and eccentricity can tolerate many petty regulations before being suppressed. Isaiah Berlin (1969: 128) argued that ‘love of truth and fiery individualism grow at least as often in severely disciplined communities, among, for example, the puritan Calvinists of Scotland or New England, or under military discipline, as in more tolerant or indifferent societies’.
   To have ‘persons of genius’, says Mill, ‘it is necessary to preserve the soil in which they grow’ (Mill 1987: 129). The assumption that promoting liberty will foster originality – and therefore progress – is plausible but speculative. It is not, in itself, strong enough to validate the harm principle. It seems here as if Mill is trying to tempt the average reader, whom he suspects of being intolerant and conformist, with the promise of benefits from allowing others to lead unusual lifestyles. In so doing, Mill puts himself in the position of having to argue that any regulation that breaches the harm principle reduces the sum total of genius in a nation, and yet it is not at all obvious that, to take a contemporary example of paternalism, forcing people to wear seat belts has any such effect. Mill might argue that even trivial encroachments on freedom stifle originality by creating a hostile intellectual climate – he talks about genius only being able to ‘breathe freely in an atmosphere of freedom’ (emphasis in the original) – but this applies more to free speech than to some of the regulatory questions he addresses, such as whether poisons should be sold over the counter.
   Mill is more convincing when he argues that paternalism drains people of their vitality by making decisions for them. Relieved of the need to think for themselves, Mill feared that they would stop thinking at all, until ‘by dint of not following their own nature they have no nature to follow’ (ibid.: 126). It might also be argued that a society that bans so much on grounds of safety lulls individuals into believing that everything that is legal is safe; that legality itself amounts to tacit encouragement (Miller 2010: 152). In this way, paternalism hinders our ability to make good decisions, first by giving us too little practice and then by giving us unrealistic expectations.
   In my view, Mill’s simplest and strongest case for individual liberty arrives a few pages later when he writes that a person’s ‘own mode of laying out his existence is the best, not because it is the best in itself, but because it is his own mode’ (Mill 1987: 133). Since people have different tastes and preferences, it is undesirable for others, even if they are the majority, to impose foreign preferences upon them. Hospers (1980: 265) puts it another way, saying ‘what is for the person’s good may not be the same as what he wants’ (emphasis in the original). Citing the example of a drug addict who wants nothing in life but ‘drug-soaked euphoria’, he continues (emphasis in the original):
   Even if we believe, and even if we believe truly, that such a life does not serve his good – we think of the wasted talents and what he might have achieved and enj...