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what he wishes to do.
Must reasonable liberals be for hard paternalism?
Despite these caveats, Mill s anti-paternalism remains dubious to some. Most
of the arguments offered in defence of paternalistic coercion of minimally
rational adults are of little interest from a Millian perspective. The attempt to
justify paternalism by distinguishing between earlier and later selves of the
individual, for example, such that coercion of the former prevents harm to the
latter, is problematic.6
Also problematic are attempts to justify paternalism by referring to the
prevention of various indirect public harms , as when compulsory seat-belt or
motorcycle helmet legislation is defended by referring to the consequent reduction
in medical and health costs of accident victims, which must ultimately be borne
by the taxpayer and/or consumers of insurance. Feinberg seems to find that
sort of argument for coercion rather appealing, although, as he makes clear, he
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GENERAL I SSUES
assigns even more weight to the prevention of others emotional distress
( psychic costs ) consequent on the relevant accidents (1984 8, Vol. 3, pp.
134 42). In any case, self-financing private-sector insurance schemes could in
principle be designed so that different classes of consumers would pay different
premiums according to the risks which they, respectively, choose to bear.
If others are made uncomfortable by the plight of uninsured or
underinsured accident victims, especially when that plight is the result of bad
luck rather than the victim s deliberate conduct, philanthropy is always an
option. Moreover, in a wealthy modern industrial society, general utility may
well recommend a universal public health care programme, financed by
taxpayers, with legal rights to adequate care for all, including those who choose
to not wear seat-belts or helmets. Just because the majority enacts generous
public health care measures, however, it does not follow that paternalistic
legislation (as opposed to education, advice and the like) is justified to keep
down the costs of care.
But one argument for paternalism has provoked considerable interest,
because Mill himself is said to have implicitly accepted it. Specifically, given
that minimally rational persons can choose to become slaves, it seems to follow
that his call for non-enforcement of voluntary slavery contracts constitutes an
exception to his anti-paternalism. Feinberg echoes received opinion when he
asserts that his solution to the problem of voluntary slavery is paternalistic
in spirit (ibid., p. 72). Feinberg also suggests that liberals must in principle
tolerate slavery contracts, if the parties really enter into the agreement on a
voluntary basis (ibid., pp. 71 9). Interference with such contracts can only be
justified, it seems, by casting doubt on the voluntariness of the agreement, or
by what amounts to paternalism from a Millian perspective (ibid., pp. 79 81).
But, as I have already argued in Chapter 6, and as Ten (1980, pp. 118
19) also suggests, Mill s approach to slavery does not seem to contradict his
anti-paternalism. The key point is that, if voluntary slavery is recognized,
society creates genuine uncertainty, which cannot be resolved, about whether
the slave is being held against his wishes, and thus harmed, by the slavemaster
in the future. No society that decides to prohibit involuntary slavery can
recognize the voluntary sort, because recognition of the latter destroys all
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THE LI BERTY DOCTRI NE I N PRACTI CE
possibility of distinguishing the former. Given that involuntary slavery is a
form of perceptible damage suffered against one s wishes, society has legitimate
authority to refuse to enforce slavery contracts, to prevent the risk of harm to
others. Moreover, since the potential harm is of an extremely serious kind,
general expediency dictates that society should make use of that authority.7
It follows that any society guided by Mill s liberty principle has legitimate
authority to refuse to enforce slavery contracts. A decision to become a slave is
a decision to resign (among much else) one s right to liberty of self-regarding
conduct. But that decision is not itself self-regarding. Nobody ought to be
perfectly free to resign his right, or to negotiate with others to resign their
rights, for some consideration, such as a lump-sum payment to third parties.
Rather, any such choice is, in a Millian context, a challenge to legitimate social
authority.
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