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Non-Renounceable Rights, Paternalism and Autonomy

Published online by Cambridge University Press:  25 May 2015

SøREN FLINCH MIDTGAARD
SøREN FLINCH MIDTGAARD*
Affiliation:
Aarhus University, Midtgaard@ps.au.dk
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Abstract

The notion of a non-renounceable right – that is, a right one cannot irrevocably relinquish – is an integral part of recent liberal reconciliatory attempts to justify apparently paternalistic policies, such as compulsory insurance or providing people with certain goods irrespective of their subjective preferences, non-paternalistically. However, non-renounceable rights cannot be justified non-paternalistically. A critical scrutiny of the liberal reconciliatory arguments in question reveals this and points towards a plausible paternalist justification of the policies in question.

Type
Research Article
Information
Utilitas , Volume 27 , Issue 3 , September 2015 , pp. 347 - 364
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Copyright
Copyright © Cambridge University Press 2015 

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References

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2 Anderson, ‘Point’, pp. 300–2. Cf. Carl Knight, ‘In Defence of Luck Egalitarianism’, Res Publica 11 (2005), pp. 55–73, at 57–9.

3 Anderson, ‘Point’, pp. 301–2.

4 Anderson, ‘Point’, pp. 319, 329–31.

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8 De Marneffe, ‘Paternalism’, sec. II.

9 I owe this point to Peter Vallentyne.

10 De Marneffe, ‘Paternalism’, p. 68, quoting Joel Feinberg, Harm to Self (New York and Oxford, 1986), p. 68.

11 In setting out what this concept implies, I am indebted to Joel Feinberg, ‘Voluntary Euthanasia and the Inalienable Right to Life’, Philosophy & Public Affairs 7 (1978), pp. 93–123, at 114–18, and to Peter Vallentyne.

12 Feinberg, ‘Euthanasia’, p. 117. Feinberg attributes the ‘spring rite’ case to Don E. Scheid.

13 Feinberg, ‘Euthanasia’, pp. 115–18.

14 Feinberg, ‘Euthanasia’, p. 115.

15 The examples are from Arthur Ripstein's Force and Freedom: Kant's Legal and Political Philosophy (Cambridge, MA, 2009), ch. 5. However, he would properly not describe them in terms of waiving rights but rather as acts of consent that make certain types of behaviour consistent with one's rights – types that would otherwise constitute rights violations.

16 Mill, John Stuart, On Liberty (1859; Harmondsworth, 1974), p. 166Google Scholar.

17 The example is Peter Jones's from his ‘Toleration, Harm and Moral Effect’, Aspects of Toleration: Philosophical Studies, ed. J. Horton and S. Mendus (London and New York, 1985), pp. 136–57, at 138.

18 In am indebted here to Peter Vallentyne.

19 Bou-Habib, ‘Insurance’, p. 257.

20 Cf. Shiffrin, ‘Paternalism’, sec. II.A on how apparently self-regarding activities may, by virtue of collective schemes, involve burdens for others.

21 Bou-Habib, ‘Insurance’, p. 260.

22 Raz, The Morality of Freedom (Oxford, 1986), ch. 6, sec. 4, ch. 14, 15.

23 Bou-Habib, ‘Insurance’, pp. 259–60.

24 This is compatible with him having the moral power to renounce his right (but it not being permissible for him to do so). Peter Vallentyne brought to my attention the distinction between moral power and permission.

25 Bou-Habib, ‘Insurance’, p. 262. Bou-Habib's argument has at least a second prong (denying that the argument necessarily needs to affirm the non-renounceability of the right to aid). However, given that this also invokes the intrinsic value of autonomy, it too would seem vulnerable to the kind of criticism I present below. I share with Bou-Habib the view that sometimes preserving one's autonomy requires preserving one's life or the conditions for its continuation. This does not necessarily commit one to the view that ending one's life is necessarily or always an affront to one's autonomy.

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27 Velleman, ‘Self-Termination?’, pp. 611–12.

28 Whether it avoids morality-catering paternalism is less clear. Regarding this view see, Dworkin, Gerald, ‘Paternalism’, Stanford Encyclopedia of Philosophy, <http://www.plato.stanford.edu/entries/paternalism/>>Google Scholar (first published 6 Nov. 2002; substantive revision 4 Jun. 2014), sec. II; VanDeVeer, Donald, Paternalistic Intervention: The Moral Bounds on Benevolence (Princeton, 1986), pp. 96, 140–1CrossRefGoogle Scholar.

29 Cf. what John Kleinig refers to as the ‘considerable coyness’ of some non-paternalistic arguments (in Paternalism (Totowa, 1984), p. 82). Quoted in Feinberg, Harm, p. 135.

30 Mill, Liberty, ch. 2 (title). For a persuasive account of Mill's view on individuality or autonomy, see Arneson, ‘Mill’.

31 The view I present draws on Roger Crisp, Mill: On Utilitarianism (London, 1997), esp. chs. 2–3, and pp. 195–7; Hurka, Thomas, ‘Why Value Autonomy’, Social Theory & Practice 13 (1987), pp. 361–82CrossRefGoogle Scholar; Young, Robert, ‘The Value of Autonomy’, The Philosophical Quarterly 32 (1982), pp. 35–44CrossRefGoogle Scholar.

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33 Rawls does not, as one arguably should, distinguish the kind of respect in question from an arguably different type, namely ‘recognition self-respect’. See Darwall, ‘Respect’. However, Rawls is arguably here talking about self-esteem or appraisal self-respect.

34 Rawls, A Theory of Justice (Cambridge, MA, 1971), p. 440.

35 Dworkin, Gerald, The Theory and Practice of Autonomy (Cambridge, 1988)CrossRefGoogle Scholar, ‘Paternalism: some second thoughts’, pp. 121–9, at 125.

36 This is inspired by Arneson's analysis of similar cases. See ‘Joel Feinberg and the Justification of Hard Paternalism’, Legal Theory 11 (2005), pp. 259–84, at sec. IV.

37 Anderson, ‘Point’, p. 301.

38 Barry, Brian, ‘John Rawls and the Search for Stability’, Ethics 105 (1995), pp. 874–915, at 889CrossRefGoogle Scholar; Sen, Amartya K., ‘Rational Fools: A Critique of the Behavioral Foundations of Economic Theory’, Philosophy & Public Affairs 6 (1977), pp. 317–44Google Scholar, at sec. IV; ‘Well-being, Agency, and Freedom: The Dewey Lectures 1984’, The Journal of Philosophy 82 (1985), pp. 169–221, at 206.

39 It might be a kind of moral (as opposed to welfare) paternalism (cf. n. 28), but still, the objector may insist, paternalism (and problematic as such).

40 Anderson, ‘Point’, p. 319.

41 Anderson, ‘Point’, p. 329.

42 Anderson, ‘Point’, p. 330.

43 Anderson, ‘Point’, p. 319.

44 Anderson, ‘Point’, p. 319.

45 Anderson, ‘Point’, p. 330.

46 Anderson is not explicit on there being a cost-constraint on B's duties, but given that both Bou-Habib and Anderson appeal to a familiar duty to rescue, which ordinarily includes such constraints, I presume that Anderson's duty does so too.

47 Cf. Dworkin, Ronald, ‘Sovereign Virtue Revisited’, Ethics 113 (2002), pp. 106–43CrossRefGoogle Scholar, at 114.

48 For related considerations regarding tempering luck egalitarianism – although in a way which, in opposition to the view defended here, is bent on avoiding paternalism – see Casal, Paula, ‘Why Sufficiency Is Not Enough’, Ethics 117 (2007), pp. 296–326CrossRefGoogle Scholar, at 321–3, and Williams, Andrew, ‘Liberty, Equality, and Property’, The Oxford Handbook of Political Theory, ed. Dryzek, J. S., Honig, B. and Phillips, A. (Oxford, 2006)Google Scholar, ch. 27.