What s Wrong With J.S. Mill s Harm-to-Others -Principle?

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1 the Warren P. Fraleigh distinguished scholar lecture Journal of the Philosophy of Sport, 2011, 38, Human Kinetics, Inc. What s Wrong With J.S. Mill s Harm-to-Others -Principle? Claudio Tamburrini Stockholm University One of the most widely discussed ideas in contemporary political philosophy is John Stuart Mill s Principle of Liberty, in which a radical antipaternalistic ideal is formulated. The limits of political action, both by the State and society in general, has probably never been so emphatically stated as in Mill s essay On 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 mental, is not sufficient warrant. [ ] 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. 1 After its formulation, the antipaternalistic principle has been considered as the ultimate theoretical warrant of individual freedom vis-à-vis the State and the prejudices of civil society. As such, this principle is widely cited in most discussions in which the legitimacy of different policies imposing limits to individual action is brought to the fore. Even in the sport philosophical production, the impromptus of Mill and his antipaternalistic principle is relatively easy to find. Particularly in the doping debate, the harm-to-others criterion has been (at least implicitly, if not explicitly) referred to both to support and to condemn the doping ban. Among the arguments advanced to attack the ban, we find Michael Lavin s formulation of this critique: Athletes striving for excellence incur health risks. High mileage jeopardizes the distance runner s knees. Sumo wrestlers become obese. Modern training regimes often keep players on the edge of injury. The phenomenon is an accepted part of athletic life. Traditional bans on drugs are, to The author <claudiotamburrini@philosophy.su.se> is with the Centre for Healthcare Ethics, Stockholm University, Stockholm, Sweden. 1

2 2 Tamburrini be sure, often offered out of paternalistic concern. 2 In the same line of reasoning, I have also argued that As commonly stated, [the objection to doping that says that it is harmful to the athletes] is paternalistic: the ban on performance-enhancing methods is justified in order to secure the well-being of sport practitioners. 3 On the other hand, we can also rather easily find authors who support the ban with arguments that might be derived from Mill s principle. Thus, in clear reference to Mill, Warren Fraleigh asserts that the harm and coercion consequences must be examined together. Under `no rules we note that more people will be harmed and that there will be greater effective coercion to use drugs. And regarding the position that athletes can choose whether or not to use drugs, he asks rhetorically why, morally speaking, should a highly competent athlete be forced either to lower his/her expectancies or discontinue sport involvement because he/ she cannot compete with drug users? 4 Obviously, for Fraleigh, doping-reluctant athletes would be harmed by dopers, either by loosing competitive edge or by being forced into doping. Now, when both parties in a debate quote the Bible in their defense, either they are both wrong or there is something fishy with the Bible. The first possibility has been taken care of by the debaters themselves, who have been extremely witty in pointing out their contestants argumentative flaws. 5 Thus my goal in this article will not be to give a definite assessment of this debate, although I have a clear notion of where my sympathies are. Rather I will try to ascertain whether there is something wrong with Mill s antipaternalistic principle which makes it unfit to be adopted as a policy by the State to regulate citizens conduct. To do this, I will proceed as follows. In Section One I will address some conceptual obscurity in Mill s principle, particularly the question of what he meant, and what reasonably can be meant, by harm to others. Thus, this part of my discussion will be partly exegetical and partly normative. This discussion will lead us to a plausible characterization of Mill s utilitarianism, a much debated issue in the history of moral philosophy, to be tentatively presented in Section Two. In Section Three, I will return to the doping discussion in order to, if possible, accommodate the different arguments advanced both for and against the ban to the most reasonably version of the Millian principle. In addition to that, I will confront the principle with some examples gathered from recent medical practice with a view of ascertaining whether or not antipaternalism, as formulated by Mill, can meet the challenges of the new biotechnical medical reality. If not, this might give us a reason to at least suspend our judgment on the viability of antipaternalism. It would also constitute a warning against the rather widespread tendency of loosely referring to antipaternalism in order to take stance for or against a particular position in the general applied-ethical debate. Mill s Antipaternalistic Principle As we saw above, Mill believed that the only good reason for controlling and compelling individuals to act contrary to their desire (either through threats, penalties, coercion or the enforcement of a particular morality) is the prevention of harm to others. Thus, the practical feasibility of the antipaternalistic principle rests on the factual tenability of the harm-to-others -restriction. Although the principle aims at drawing a normative limit to the action of the State over indi-

3 What s Wrong With J.S. Mill s Harm-to-Others -Principle? 3 viduals, such a proposal is based on the possibility of establishing a factual distinction between on the one hand conduct that only affects the agent and conduct which affects others, on the other hand. This however might prove not to be so easy to accomplish. As a matter of fact, even the most private of endeavors can be described as other-regarding behavior. At first sight, to neglect my own health seems to be a case of self-regarding conduct. But, after reflection, it becomes evident that I might also affect my fellow citizens by, for instance, adding costs to the public health care system. Or I might become unable to take proper care of those who are dependent upon me. To be viable, Mill s antipaternalistic principle must be supplemented by a more precise characterization of what is meant by conduct that only concerns the agent and conduct that affects others. But is this distinction even understandable? Given the web of social relations in which we are immersed, self-imposed harm also tends to affect others. If I get injured or ill due to my own negligence, I become a burden for medical care, either public or private. Or, even if I renounce to get any treatment, I nonetheless cease to contribute taxes to the public treasury by not being able to work, thereby failing to sustain a mutually beneficial enterprise. So, what did Mill plausibly mean by preventing conduct harmful to others? A first interpretation would be to say that Mill argued for prohibiting actions which are in themselves and directly harmful to other people. This category includes therefore such conduct as battery, murder, fraud, lying, harassing, adultery, etc., that is, such types of actions which normally render harm (or the risk thereof) to whom suffers them. But within this category Mill seemed also to include actions which, although they do not directly cause any harm to other people, might nonetheless indirectly have negative consequences for others, either through the agent s further action or the action of other parties. An example of this type of conduct would be instigating to commit hurtful actions against some individual or group. In order to actualize the intention of the issuer of the instigation, further action by the perpetrators is required. So though instigation to harm others is not directly harmful, banning it would nonetheless be compatible with the antipaternalistic principle on grounds of the indirect noxious effect of this kind of conduct on others. 6 Understood in this narrow way, the Millian principle could be taken to mean that the only justified reason to compel individuals to adopt a certain course of action is preventing harm either directly or indirectly to others. Following David Lyons, I will call this principle the Harmful Conduct-Prevention Principle. 7 But Mill is also aware that, consequently applied, his principle, if not requires, at least allows going further than what the narrow harmful conduct-prevention principle above sanctions. This is so as, in his view, there are many positive acts for the benefit of others, which he [the individual] might rightfully be compelled to perform 8. He grounds this assertion on the conviction that A person may cause evil to others not only by his actions but by his inaction, and in either case he is justly accountable to them for the injury. 9 What kinds of actions does Mill have in mind here? He distinguishes two (types of) positive actions: (a) cooperative actions, such as being compelled to give evidence in court, to bear one s fair share of the common defense of a country and, in general, to contribute to the

4 4 Tamburrini joint work necessary to the interest of a community, a part of which is enjoyed by the individual herself; 10 and (b) beneficence (or good Samaritan) actions, such as saving a fellow-creature s life, or interposing to protect the defenceless against ill-usage, things which whenever it is obviously a man s duty to do, he may rightfully be made responsible to society for not doing. 11 So, on the most plausible reading of Mill s antipaternalistic principle, as well as the related characterization of the harm-to-others condition, he should be understood as asserting the following General Harm-Prevention Principle : Individuals can be rightfully compelled by the State (or society) to act in a certain manner, not only when this is required to avert conduct which is in itself harmful, but even when their omission to act can reasonably be expected to deprive others from benefits they are entitled to. As it might be expected, this reading of Mill s antipaternalistic principle has been contested. D.G. Brown, for instance, sticks to the narrower harmful conductprevention principle outlined above, and affirms consequently that Mill incurred in fragrant contradictions, or was simply confused, when he brought into the fore cooperation schemes and good Samaritan actions in the context of his discussion on harmful conduct. Brown s interpretation, however, is defective in that it totally ignores important pieces of text in On Liberty. Furthermore, a narrow interpretation of the harm-to-others principle is not easy to reconcile with the wider utilitarian position advocated by Mill. For a utilitarian, not matter of what sort, acts and omissions are, other things being equal, of the same moral relevance. So why would Mill have stopped at hindering actions which are in itself (or merely directly) harmful, instead of pleading for increasing happiness, no matter how it is caused? In that regard, the General Harm-Prevention Principle is more faithful to Mill s general philosophical system. 12 Of course, a policy consisting in compelling individuals to perform positive actions demands more cautiousness from the authorities, as the causal link between the conduct in question and the expected beneficial outcome is more difficult to ascertain than when we confront actions which are directly and overtly harmful. Accordingly, Mill says To make any one answerable for doing evil to others is the rule; to make him answerable for not preventing evil is, comparatively speaking, the exception. 13 But provided State authorities (and social actors in general) adopt such a restrictive attitude, there is no reason within Mill s wider utilitarian system not to compel individuals to act in such a way that renders benefits to third parties. This does not mean to say that Mill considers that all those actions, always and in all circumstances, should be the State s business, no matter whether this is done by issuing a prohibition or by penalizing a particular instantiation of them. Think for instance about lying and adultery. In his view, there can be overriding reasons not to forbid these kind of actions, as the attempt to exercise control would produce other evils, greater than those which it would prevent. 14 Nor it would be required either to always and without exception penalize the actions proscribed by the State: If anyone does an act hurtful to others, there is a prima facie case for punishing him by law or, where legal penalties are not safely applicable, by general disapprobation. 15 Mill is therefore proposing not only to prevent harmful conduct, but to do it in an efficient and economical manner.

5 What s Wrong With J.S. Mill s Harm-to-Others -Principle? 5 Before closing this (mainly exegetical) part of this presentation, it seems appropriate to say a few words about Mill s utilitarianism. Particularly it has been pointed out that his defense of individual freedom, as it is advanced in the antipaternalistic principle, is difficult to reconcile with a (pure) utilitarian approach. However, I don t think it does. Let me now explain why. Mill s Utilitarianism According to classical Benthamite utilitarianism, a course of action is right if and only if it contributes more (or at least equally) than any other action to the greatest happiness of the greatest number. Utility (understood as happiness or pleasure ) is then made the ultimate criterion on which all actions, both private and public, should be judged. According to Bentham s famous dictum, provided the quantity of pleasure is the same, reading poetry is not preferable to playing pushpin. Mill was also a utilitarian. But, unlike his teacher, he distances himself from pure quantitative hedonistic utilitarianism. While for Bentham pleasure was a sufficient condition for defining the good, pleasure is for Mill not even a necessary condition for labeling a state of affairs as good. In On Liberty, he says: 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 a man as a progressive being. 16 To the above quotation of Bentham, he opposed his (equally famous) assertion that It is better to be a human being dissatisfied than a pig satisfied; better to be Socrates dissatisfied than a fool satisfied. 17 This quotation suggests that even an unhappy individual might enjoy a good life, provided s/he is successful in developing her full potentiality as a human being. Mill s distinction between higher and lower pleasures is of course not without problems. On which grounds, for instance, could we compare and choose between higher and lower pleasures? How much of, say, pushpin is a Mozart opera worth? 18 But this is not the only problem with Mill s philosophical system. His version of utilitarianism has been the target of much criticism and misinterpretation, mostly from the classical utilitarian field. Much of this critique is well-deserved. As we saw, Mill is indeed rather unclear concerning some central concepts in his doctrine. But other critical remarks appear as ungrounded or merely destructive, in that those who formulated them have made little effort to grasp the Millian texts in line with a charitable interpretation of them. Let us now briefly account for that criticism and present a possible way of neutralizing it, while staying faithful to the essence of Mill s philosophical system. Mill and Act Utilitarianism It has been objected that a consequent application of the Principle of Liberty would be counterproductive from a utilitarian point of view. If we think about act utilitarianism, this is obviously true. In Utilitarianism, Mill subscribes to what he calls: The Greatest Happiness Principle (GHP) The creed which accepts as the foundation of morals, Utility or the Greatest Happiness Principle, holds that actions are right in proportion as they tend to promote happiness, wrong as they tend to promote the reverse of happiness. 19

6 6 Tamburrini GHP formulates therefore the utilitarian criterion of rightness, by which we can identify the right action/s among a set of alternatives. The Principle of Liberty instead should be seen as a principle of practical morality a method of deliberation, to use the traditional utilitarian terminology which tells us how to act in order to maximize happiness in a particular situation. Now, if we subscribe to the position that an action is right if and only if it maximizes happiness (or whatever it is considered valuable), then it would not be particularly difficult to imagine a situation in which adherence to the antipaternalistic principle leads to negative consequences for all individuals involved. To meet this objection, it clearly won t do to say that, after all, all great utilitarian thinkers recognized that for efficiency reasons (lack of time or deficient information at the time of making decisions), certain normative principles besides the Principle of Utility are required. Mill does not propose his Principle of Liberty as a primafacie norm that could be overridden provided the conditions for performing a more accurate calculus were at hand. Nor is he advocating either for a two-levels morality á la Richard Hare, the first level being composed of rules of thumb to be completed and eventually abandoned whenever we confront a situation that requires resorting to the normative principles that belong in the second, critical level of morality. Rather, he advances his antipaternalistic principle as an absolute bar against many policies which might be directly conducive to increased utility. Some authors have even interpreted the Principle of Liberty as laying down an inviolable right possessed by individuals in relation to State and society. It is indeed difficult to see how the Principle of Liberty can be derived or even made to be consistent with the Principle of Utility. The burden Mill has to bear is therefore to prove that exceptionless adherence to antipaternalism will always and indefectibly lead to the greatest possible amount of happiness. One could of course hope that strict compliance with one principle will in the real world lead to the satisfaction of the other. But that would require an almost religious confidence in the factual compatibility of these two normative requirements. On any plausible conception of society and on how human affairs are run, uncompromising adherence to the Principle of Liberty will sometimes result in serious losses of happiness. Or so have at least the traditional criticism against Mill s doctrine been formulated. 20 Now, let us first get rid of that one among the objections to Mill s system that is most easily dispatched. It would be wrong to ascribe to Mill the view that individuals enjoy inalienable rights in the same sense as they are defended by natural rights theorists. Mill states very clearly what kind of right he has in mind: It is proper to state he argues that I forgo any advantage which could be derived to my argument from the idea of abstract right, as a thing independent of utility. 21 It is therefore evident in the text that he sees rights, not as a premise from which we have to start reasoning in normative matters, but rather as a conclusion yielded by the Principle of Utility in combination with some facts about the world. No worship of rights implied in such a position. It remains however the objection that strict antipaternalism sometimes will fail to maximize happiness. Can this objection be answered within Mill s conceptual framework?

7 What s Wrong With J.S. Mill s Harm-to-Others -Principle? 7 Mill and Rule Utilitarianism Some authors (for instance, Mary Warnock and J.O. Urmson) have tried to help Mill out of the hook by interpreting him as a rule-utilitarian. 22 Unlike act-utilitarianism (which, let us recall, postulates that an action is right if and only if it maximizes whatever is taken to be of value), rule utilitarianism states that an action is right if and only if it is in accordance with a (from a utilitarian viewpoint) optimific rule. Thus, even if we in a particular situation fail to maximize utility, we might nonetheless be acting rightly provided our action is in accordance with such a rule. Applied to the antipaternalistic principle, a rule utilitarian justification could be cast as follows: securing a private sphere in individuals life, free from any intervention from society, is the most rational rule (that is, the policy which is most conducive to general happiness) when it comes to conduct which does not affect others. This is compatible with, occasionally, failing to maximize utilize, for instance in cases in which general happiness could be best promoted by forcing an individual to act against her wishes in matters that only concern her very private sphere. However, even if this move turns Mill s principle immune to the act utilitarian objection, this is made at the cost of opening antipaternalism to all the classical objections usually raised against rule utilitarianism. In particular, it has been argued that, by sticking without exceptions to the Principle of Liberty, the Millian system would condone as right cases where it is evident that happiness would be maximized by compelling an individual to act in a particular manner. After all, why should we adjust our conduct to a rule even in a situation in which it obviously leads to harmful consequences? We could of course reformulate the rule and add further specifications to it so that the rule now efficiently meets the requirements of this particular situation. But then it won t take long until rule utilitarianism had collapsed into act utilitarianism. Or so has traditionally been argued. Mill and Indirect Utilitarianism There is however another interpretation of Mill s utilitarianism that is better suited to meet these objections. It also fits better with his general system of philosophy. According to it, Mill might be seen as an indirect utilitarian. Indirect utilitarianism can be characterized as follows: Indirect Utilitarianism (IU) A kind of utilitarianism which recognizes that an agent is more likely to act rightly by developing and acting on the right attitudes, habits and principles that can be expected to maximize general happiness, than by trying to calculate the value of the consequences before deciding to act. 23 Applied to real life settings, IU says for instance that the reason why we should give priority to our off-spring instead of aiding foreign children, is that this kind of behavior is most conducive to create conditions favorable to maximizing happiness, if generally practiced. The reason for this judgment is that such conduct rests upon and contributes to reinforce character traits, attitudes, dispositions to act, etc., that, albeit indirectly and in the long run, maximizes human happiness.

8 8 Tamburrini Thus a proper answer to the act utilitarian objection above would be that, according to Mill s indirect utilitarian approach, by not interfering with selfregarding harmful conduct, the State or civil society would be securing the best possible conditions for human flourishing. This, to be sure, should be distinguished from the narrower characterization of the kind of utility maximized by a rule-utilitarian approach. This more comprehensive definition of the goal to be pursued by a public policy vis-à-vis citizens makes Mill unique among other Benthamites. 24 Now, how should this reference to human flourishing be understood without forcing Mill s texts? There are two aspects of this notion, one concerning the individual and the other the social level. What then has to be substantiated is Mill s claim that strict adherence to the Principle of Liberty is optimific from a consequentialist point of view, both regarding individual development and the establishment of a stable social order. The Principle of Liberty and Individual Happiness Mill s departure from Benthamite hedonism rested on his awareness of the inadequacies of the moral psychology of classical utilitarianism. For him, happiness was to be found in different kinds of activity, not in a particular state of mind, however pleasurable. According to Mill, to believe that humans can be happy without the exercise of their higher faculties is to confuse happiness with contentment. Each person possesses a peculiar and in-born endowment that might or might not be realized in life. This idea of individuality is therefore central to Mill s system. His theory of individuality combines the notion that, for each person, there is a particular nature that waits to be unfolded, with the idea that each person is her own maker through autonomous action. The rationale behind encouraging free life experiments is that they promote self-knowledge and are conducive to happiness. But an individual cannot reasonably be said to have a happy life if he does not make his own decisions. Thus, autonomy is for Mill both constitutive of and instrumental to happiness. 25 That explains the central role given in Mill s doctrine to the protection of an individual sphere of conduct from the intrusion of both the State and the civil society. Based on this, it is easier to understand Mill s passionate defense of freedom of opinion and of expression as necessary conditions of well-being, as they are part of a normative system which from a consequentialist point of view is optimal in actualizing the best possible conditions for human flourishing. Mill s qualitative hedonistic utilitarianism is thus best interpreted as a theory of human development, which emphasizes those higher qualities that raise a person above merely striving for (lower) pleasures and following Aristotle exhorts individuals to actualize typical human characteristics only attainable in a civilized community. Such a characterization implies a further departure from the Benthamite felicific calculus. In Bentham s legislative project, all individuals count as one and no one as more than one at the time of weighing personal interests (therein included the right to manifest one s opinions) against each other. From the point of view of the legislator, differences between one person and another are not important. [As a matter of fact, the legislator is usually required not to take such

9 What s Wrong With J.S. Mill s Harm-to-Others -Principle? 9 differences into consideration]. Mill instead is mainly interested in formulating a sound (utilitarian) private and social morality on individualistic grounds. For the development of individuality and the realization of individuals potentialities, the possibility of practicing different life experiments is required. That goal, however, requires freedom from the State s intrusion in one s own personal affairs. Thus, autonomy understood as a warrant against State intervention in the pursuit of individuals life projects is in Mill s view a necessity to the mental well-being of mankind. 26 This demand, as we saw, is most clearly forwarded in Mill s famous Principle of Liberty. The Principle of Liberty and Society It is above all in Utilitarianism where Mill most clearly sketches the politicalphilosophical foundation of the Principle of Liberty and its applications, as he advances them in On Liberty. This defense rests mainly on his theory of vital interests, whose realization Mill sees as indispensable conditions both for individual human flourishing and for the stability of the social order. These vital interests are security and autonomy. 27 Mill seems to regard practical moral principles, among them the Principle of Liberty, as useful in framing the terms of an optimific social co-operation scheme. This suggests that the Principle of Utility itself a criterion of rightness, and not a practical principle for moral or political action is unfit to delineate public policies. The reason for this can be found in Mill s general philosophical approach, provided we interpret it in indirect utilitarian terms. Given certain facts of human nature, the direct pursuit of happiness by the State through coercion upon citizens is incapable of generating the stability of social and political institutions and the feeling of trust in the authorities that human and social flourishing happiness in broad consequentialist terms requires. The main reason for the unfeasibility of the Principle of Utility as a public principle is that it sometimes perhaps even often might require from individuals significant sacrifices in what regards their life plans, projects, desires, etc., only to make marginal winnings for the whole social body. The Principle of Liberty and, particularly, antipaternalism constitutes therefore a maximizing constraint on public policy. Individual autonomy, as it is guaranteed by Mill s principle, is therefore useful (conducive to the best possible conditions for individuals to develop their in-born potentialities), nonsupererogative (it precludes being compelled to abstain from self-regarding life choices to secure general benefits to society) and contributes to social stability by installing among the citizenry the idea that State authorities can be trusted. This idea is clearly stated by Mill in his review of George Cornewall Lewis s book, The Use and Abuse of Political Terms. In his view, whatever obligation the individual might have not to inflict evil upon another, the same obligation lies upon society towards every one of its members, because otherwise the government fails in its duty, if on any plea of doing good to the community in the aggregate, it reduces him to such a state, that he is on the whole a loser by living in a state of government, and would have been better off if it did not exist. 28 The intuition that seems to underlie this piece of text is that a higher amount of utility/happiness can be achieved in a social order constrained by antipaternalism than in an alternative one in which the authorities pursuit, directly and without

10 10 Tamburrini constraints, to maximize utility. 29 Mill s cooperative utilitarianism includes therefore the protection of individuals vital interests as minimal conditions for the promotion of a stable social union, and rejects the general promotion of welfare by means of limiting individual freedom in self-regarding matters. Of course, this approach might in the final analysis prove to be wrong, for instance if strict respect of personal freedom turned out not to be optimific in securing the conditions for both individual human flourishing and a stable social order. But, understood within the framework of an indirect consequentialist system, there is nothing in Mill s political philosophy, included his famous Principle of Liberty, that could be labeled as counterproductive. And this was the theoretical point I set out to make in this section. Mill and Fairness The characterization of Mill s system as indirect utilitarian proves also effective in neutralizing another critique raised against him on grounds of fairness. Mill s claim let us recall is that every paternalistic regulation of social life would lower human happiness on balance. To this, Richard Arneson has objected that, although this might very well be so, strict antipaternalism might have disturbing implications for the distribution of welfare, as [a] ban on paternalism in effect gives to the haves and takes from the have-nots. What Arneson has in mind is that autonomy cannot only be frustrated by the interference of others, but also by intrapersonal failings such as weakness of the will, lack of education, defective imagination to find out a suitable path in life, etc. In all these situations, the coercive action of State agencies, as well as of private persons, might sometimes be required to increase the welfare of social actors which, for some reason, are incapable of taking care of their own life. In his words, Left unrestrained in self-regarding matters, more able agents are more likely to do better for themselves choosing among an unrestricted range of options, whereas less able agents are more likely to opt for a bad option that paternalism would have removed from the choice set. 30 Now, a quick answer to Arneson would be to say that Mill, being a utilitarian, doesn t care about distributive justice. No matter how much happiness each one of the involved sentient beings get, the only thing that matters for a utilitarian is the total amount of happiness. For antiutilitarians, this is of course not a satisfactory answer. But Mill can provide other arguments to meet Arneson s objection. First, according to him, individuals should be left alone in their self-regarding decisions as they have a particular interest in their own welfare (happiness, flourishing, etc.), an interest that other human beings most often lack. Second, not only individuals have privileged access to their own wishes, interests, desires, etc.; they also have a privileged epistemic position, as they are best situated to know about them. Thus, he says 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 any one else. 31 Finally, faithful to the general utilitarian approach and to Benthamism, Mill also underlines the costs of implementing coercive regulations upon individuals. There is a direct

11 What s Wrong With J.S. Mill s Harm-to-Others -Principle? 11 economic cost attached to it (rule abidance need to be controlled), there is a social cost involved (forbidding and controlling self-regarding conduct is hardly compatible with an open society) and there are also psychological costs attached to paternalism (it is practically always disturbing for an individual to be coerced to act against her wishes). In the light of Mill s arguments, Arneson must then be taken to mean that all these costs (which, more or less directly, follow from paternalism) are outweighed by a fairer distribution of welfare in society. As an empirical claim, this is clearly doubtful. But even if we take this for a fact, Mill seems to have a ready answer to Arneson. Within a wider indirect utilitarian framework, individuals free experimentation with different life projects is indirectly and in the long run of great instrumental value. Some will make a wrong choice, and they might even be emulated by others who will thus inflict damage upon themselves by their unwise choices (recall the alleged negative effects on young athletes of sport stars doping). But in the long run a policy of letting people test the consequences of the choices they find most agreeable can reasonably be expected to contribute to human flourishing much more than a restrictive paternalistic policy dictated from above. And to sustain this claim, it should be observed, we don t need to subscribe to Mill s (in fact, rather doubtful) statement that the most ordinary men and women (All of them? Always?) know best what is more beneficial for them. It suffices to say that leaving individuals alone, both those who know best and those who don t, is most probably the most rational social policy to secure the conditions for a fully flourishing community in which citizens develop their particular human faculties. [By the way, an approach that should also be valued by virtue ethicists.] Arneson however does not buy this move. In his view, [w]e need to consider socially valuable learning in the short run (affecting the present generation) and in the long run (affecting future generations) from successful and unsuccessful experiments in living carried out by more or less able agents. 32 The problem for him is that, even if we accept that good learners will benefit from antipaternalism, and that might in the long run be beneficial for human development, a strict ban on paternalistic restriction of liberty will in some of its applications benefit the better off at the expense of the worse off, and so be unfair even if utility-maximizing. 33 This could be a problem for Mill if he were taken to advocate individuals inalienable right not to be interfered with by the State in matters that only concern their private sphere of interests. But, as we have sketched before this is actually not the case. To begin with, Mill subscribes to a kind of softer paternalism when he condones coercing children and even adults who, for one reason or another, cannot be considered as able of making well-informed, autonomous decisions. A person who corresponds to Arneson s description of less able agents might therefore, according to Mill s own account, be compelled to act in a certain manner in self-regarding matters. [Whether or not this also applies to dopers will be discussed in the next section.] It is in that regard regrettable that Arneson does not specify what kind of autonomous agency the have-nots he refers to are incapable of undertaking. Furthermore, we should recall that Mill advances his antipaternalistic principle within a wider consequentialist system, properly complemented by other principles of practical morality. 34 Thus, he could consistently argue that, while

12 12 Tamburrini there is great value both socially and individually in letting individuals actualize their self-regarding desires as they please, if things went wrong they might/ should be provided with social assistance, if and to the extension they so wished. The amount of individuals who might be expected to be totally reluctant to any kind of State intervention even in a case in which they need urgent assistance won t probably be too numerous. Thus, this loss should be compared with the (consequentialist) costs stemming from a policy in which individuals, historically, are told how to behave by State authorities or live under the yoke of traditional morality. Such a policy, I have argued, would most probably fail in the task of constructing a stable social order conducive to general happiness. Complementing antipaternalism with a policy of assistance for all those individuals who are affected by personal tragedies stemming from their autonomous life choices appears as both humane, reassuring of human flourishing and also as contributing to strengthen the feeling of belongness and social cohesion in society. Another aspect which is disregarded by Arneson s critique is the very strong connection Mill affirms to exist between liberty and happiness. This connection is built, as we have seen, on the central role he acknowledges to individuality in his system. An individual whose self-affecting choices are continually disrespected can hardly be seen as a happy person. Liberty, self-development and happiness are in the Millian theoretical building so nearly related that only a certain and significant utility loss can justify State coercion on personal matters. This postulated connection between liberty, self-development and happiness needs of course to be substantiated. Mill is aware of that, and the support he provides for his Principle of Liberty consists of identifying certain common features of human life which, although contingent (they might have turned out to be otherwise), are at the same time beyond our capacity to alter and have therefore to be presupposed in all reasonable reflection on the conditions of a sound and valuable social and political life. Arneson s critique of Mill s antipaternalism is insensitive to this further dimension of the Millian system. Now that we have a plausible characterization both of Mill s general system of philosophy as well as of his Principle of Liberty, we are in a position to check whether the antipaternalistic approach can handle some of our most common moral intuitions within the sports and medical ethics field. Applications In this section I will apply Mill s antipaternalism to some examples gathered from sport and medical praxis. More concretely I will discuss doping (particularly gene doping), biobanking and family-based genetic screening. I will try to ascertain whether or not antipaternalism is an appropriate guideline to meet the challenges posed by new developments in medical technology. Let us first analyze whether the ban on (gene) doping might be justified on grounds that doping is conduct harmful to other people than dopers themselves. The noxious effects let us recall from our previous discussion might arise either as a direct or an indirect consequence of doping. Before doing that, however, we need to ascertain whether the Principle of Liberty is at all relevant to the discussion on the doping ban. As we will soon see, an argument might be formulated to sustain it is not.

13 What s Wrong With J.S. Mill s Harm-to-Others -Principle? 13 These Are Our Rules: Take It or Leave It! Some commentators have pointed out that Mill allows that his Principle of Liberty does not apply to private associations of individuals engaged in some particular endeavor. Provided they gather to carry out some life experiment freely, and considering that both individuals and society would benefit from observing the results of this experimentation, Mill has been taken to assert that we should tolerate such practices, even when participants decided to limit their freedom in ways that go beyond what the State can rightfully impose on them according to the harm principle. 35 A straight-forward example of this could be joining a religious sect or a political party which imposed constraints on adepts conduct. By the same token, it could be said, the International Olympic Committee (or whatever sport organization) should also be considered above the restraints sanctioned by the harm principle, in their character of private organizations. Thus, as the Millian argument against drug bans only would apply to State policies, and not on voluntarily agreed upon restrictions, it might be argued that the protection granted to individuals by the Principle of Liberty does not include sportspersons. This assertion is in fact part of a more general argument according to which, even if individuals are granted rights, rights can after all be waived. Former WADA Director Dick Pound has defended doping bans in a way that clearly has a resonance of this argumentation: [Sport] is governed by rules that, however artificial or arbitrary they may be, are freely accepted by the participants. Why a race is 100 or 200 or 1,500 metres does not really matter. Nor does the weight of a shot the number of members on a team or specifications regarding equipment. Those are the agreed-upon rules. Period. Sport involves even more freedom of choice than participation in society. If you do not agree with the rules in sport, you are entirely free to opt-out, unlike your ability to opt-out of the legal framework of society. But if you do participate, you must accept the rules. 36 Pound s argument deserves to be discussed in extension. As I understand his position, it rests mainly on two claims, one explicit and the other not overtly unfolded in his argumentation. His first, factual claim is that athletes have (more or less explicitly) consented to antidoping regulations. But he is also (implicitly) making the normative statement that this waiving of athletes right to make autonomous decisions is morally unproblematic in the context of private sport associations. As a matter of fact, this very waiving could be seen as a part of the (more general) right to be left alone to pursue one s own life projects formulated in the Principle of Liberty. A sportsperson might for instance justify her decision to enter into an association with paternalistic rules (say, the IOC or the IAAF) as being anchored in her right to pursue different life experiments without State interference, provided this decision does not affect others. This, to be sure, would not imply the risk of a slippery-slope ending up in resigning autonomy toward the State as well. If giving up autonomy in sports became generalized, this would only result in a comprehensive paternalistic sport practice; if instead the example of giving up autonomy toward the State were followed by the citizenry, the very conditions for a flourishing community life would most probably be jeopardized. The latter development, unlike the former, cannot therefore be sanctioned by the

14 14 Tamburrini harm-to-others-principle. Or so could at least be argued by a Mill-inspired supporter of the doping ban. So, following Pound, it could be stated that the fact that athletes can be taken to have waived their right to make autonomous decisions at the moment of entering a competition legitimates paternalistic interventions from sporting authorities. In the remaining part of this section, I intend to question the claim implicit in Pound s argument regarding the supposed moral innocence of athletes waiving their right to make autonomous decisions, as well as the validity of the consent given by athletes to antidoping regulations. What about the claim suggested by Pound s position that, in the context of a private association, it is permissible to give up rights that would otherwise be problematic to give up in relation to State authorities? Well, it depends on which right is being waived. Following Pound, a supporter of the doping ban might consider that by entering a competition, athletes consent (at least implicitly) to abide by its regulations, including those dictated out of paternalistic concerns. This statement is actually rather uncontroversial, at least when understood in a narrow sense: whenever you enter a practice you are expected, or even required, to abide by its rules. But the point Pound and his partisans are trying to substantiate goes further than that. Within the context of WADA-regulated elite sports, doping bans not only deprive athletes from their right to make autonomous decisions whether or not to follow the rules (it might for instance be irrational to grant them such a right, as the practice in question might get spoiled); it also denies athletes the right to question the rules of the practice with the aim of transforming the activity in which they once engaged. Pound may be right in that once you enter a competition, you are under an obligation to honor current regulations. But this should not imply and does not logically implies either that you, by taking part in a sporting game, also renounce to your right to pass judgment on the rules, to make autonomous decisions whether or not they should be changed, and actively work to achieve that aim. But this, it should be recalled, is precisely what Pound s consent-grounded argument for the doping ban demands. WADA strives not only to have clean competitions, or even clean athletes as well: it strives also to educate uncritical athletes, in the sense that they are not entitled to question the foundations of the doping regulations laid down by sport governing bodies. Even an athlete who abides by antidoping regulations might still be willing to question the ban by, for instance, joining a doping research project with a goal to minimizing doping harm. But WADA would no doubt put such athlete on the list of banned sportspersons, thus depriving her not only from the possibility of intentionally breaking a rule during a competition (a right which, Pound is right on that, athletes don t have), but also from exercising the capacity to pass autonomous judgment with a view to promote a change in the regulations (a right that athletes should have, no matter what regulations they implicitly might have committed themselves to honor by entering a sport competition). Seen from this perspective, the initial appeal of Pound s argument vanishes away. May be it is morally innocent to freely renounce to make autonomous decisions on certain matters. But it is surely not equally morally unproblematic to renounce to exercise one s capacity to make critical, autonomous judgments on a particular social practice. This is the intuition behind our negative judgment on religious and political sects that demand blind, unconditional submission from

15 What s Wrong With J.S. Mill s Harm-to-Others -Principle? 15 their followers. The outcome of such a demand, as it has many times been witnessed in history, is an authoritarian and immutable social practice. Giving up the possibility (the right) to question current regulations, as well as to perform active action to modify them, is therefore contrary to the more general Millian argument outlined before, according to which testing different life styles (or different ways of doing sports) through the exercising of our capacity to critical judgment is essential for human excellence to unfold and for the development of different social practices. The negative consequences for society of athletes totally deprived of their right to pass critical judgment on their practice are made even more significant by the wide social impact sports and elite sport practitioners have on the public. In that regard, it is one thing to tolerate members of a religious or political sect without any influence on the social body to give up their freedom of judgment; it is a quite different thing to condone that sport stars do the same. Let us now deal with the second of the questions above. Is the consent implicit in athletes joining a competition a valid consent? I am inclined to answer this question in the negative, mainly for two reasons. The first one has to do with the information on grounds of which athletes make their (supposedly free) decision to waive their right to autonomy. WADA s antidoping policy is much too directed to emphasizing the risks of using certain forbidden substances and training methods, and too little focused on possible ways to prevent, or at least reduce, potential harmful effects of this use. So, to say the least, it could be argued that athletes consent rests on the (false) assumption, based on WADA s biased information, that giving up their autonomy is the only, or even the best, way to reduce doping harm. (A similar argument could be framed regarding the other justification of doping bans, namely that it is necessary to secure fairness in competition). Having said this, we should not forget that many athletes actually believe that the achievement of a doping-free sports outweighs giving up autonomy and the privacy invasion they are exposed to in connection with testing procedures. But the problem is that these athletes have long been taught to think so by coaches and sport governing bodies. So, there are reasons to believe that even those athletes who support the conditions imposed upon them by WADA might do so without first engaging in critical reflection on the consequences their consent might have both within and outside the world of sports. Athletes consent to be tested might also prove to be invalid because of the coercive context in which it is given. We should recall that the kind of consent WADA demands from athletes has no resemblance at all with the voluntary and free consent given by patients in other areas of the health care service. Athlete s failure to fulfill the obligation to be tested, or even to correctly fill a where-abouts form, have resulted in one-year suspension from competition. So, rather than presenting athletes with an option, WADA directs to them an offer they can t refuse, at least if they wish to remain active within their professional areas. Submit to doping procedures, or This is too much of a threat to consider the outcome of such a procedure as consent-grounded. Pound s above characterization of athletes consent as freely given is therefore, to put it mildly, questionable Thus, the upshot of this discussion suggests that, contrary to what the present objection affirms, also private organizations might act coercively toward its members in a way that cannot be justified by the Principle of Liberty and the antipaternalistic program. To begin with, decisions may not have been fully informed ones,