Law, liberty, and the limits of selfhood
My philosophical article on the relationship between individuals and the law was recently accepted and published in the Brown Journal of Philosophy. The central question this paper addresses is whether the state has a right to protect individuals from themselves, even when their actions are confined to themselves. This thought-provoking paper explores the nature of the self, its relationship to the state, and the proper limits of the law with regard to paternalistic policies. The published work can be found here. Below is a slightly modified re-publication, with its argument slightly refined so it is clearer and more accessible to a general audience.
Introduction
On one side of the intellectual boxing ring is John Stuart Mill, who claims that individuals are ‘not accountable to society for [their] actions, in so far as these concern the interests of no person but [themselves].’ [1] On the other side of the ring are thinkers like Richard Thaler and Cass Sunstein, arguing that the state should play a more active role in nudging people towards actions deemed beneficial to their overall wellbeing. [2]
The idea of a personal sphere free from state interference isn’t new: we see it in ancient Roman family structures, helmed by a powerful Pater Familias (father figure) who held absolute power, including the power of life and death, over his family. The concept is most evident in the American Constitution, which demarcates the individual sphere from the collective through its non-exhaustive enumeration of rights. What’s interesting is that paternalism isn’t a rejection of the individualist values underpinning the constitution. It isn’t the state telling individuals to act against their own interests in favour of that of the collective interest. Instead, paternalism amounts to an assertion that individuals should be forced to act in a particular way because it is in their own interests to do so.
This essay is about selfhood and the state. More precisely, it is interested in the question of whether the proper role of the state extends to protecting individuals from themselves. The issue has direct salience in light of ongoing debates over access to assisted suicide, drug legalisation, bans on fast-food advertising and, in the case of the UK, moves to ban cigarettes even for consenting adults. [3] For these debates to be more than a battle of wills, further analysis is needed.
Preceding the political philosophical debates on the consent of the governed and individual rights is a metaphysical debate on what selfhood actually is and requires. In policy and beyond, I argue, the self is often conceptualised as being this discrete ‘authentic’ entity, something which directly justifies the legal recognition and enforcement of rights and would suggest the answer to this paper’s research question is no.
This paper posits that this conception of selfhood is misplaced: people don’t exist in a vacuum and so the ‘individual’ must be understood in the context of the broader social and political community into which he is born. This still paves the way for the creation of an ‘individual’ sphere in the eye of the law, stemming from a need to manage and mitigate conflict. But that does not necessarily rule out protecting individuals from actions deemed harmful to their welfare. Consent of the governed need not apply to every single action, that would simply be unworkable given the millions of collective decisions that need to be made and the plurality of different interests at stake. Instead, where consensus (ideally, or general agreement in practice) is needed is on the higher-order rules and frameworks that govern political decision-making.
Part I: Toward a new conception of the self
In our everyday lives, we take it as a given that we, as individuals, are self-defined and well-ordered units, distinct from the rest of the world. In the context of law and justice, this is certainly the dominant doctrine. Baltimore v Goodman (1927), for example, stated the need for individuals to take reasonable precautions in negligence cases.[4] If an individual is convicted of murder, it is he, not his mother that will be incarcerated. The principle is omnipresent in our lives: in economics many of us consider what is just to be what has been meritocratically acquired by individuals through their own hard work. Meanwhile, our philosophy has progressed to a view of man whereby, in the words of Schopenhauer, his ‘mind is by its nature free, not a slave; only what it does by itself and willingly is successful.’ [5]
It is from this perspective of an authentic, true self (what I will call the ‘authentic self’ theory) that we derive rights-based theories of justice, including those proposed by Nozick, Mill and Ayn Rand. In her essay entitled Man’s Rights, Rand argues that because man exists, and if he is to continue existing, he has a right to his own life and by derivation, his own body. For the state to step in and coerce an individual to act — even if in their own interest — against their will, amounts to a violation of man’s rights. Rand herself never directly addressed the issue of ‘paternalism,’ the view that the state should urge people toward behaviours that might advance their welfare. Nevertheless, the work of her intellectual heirs provides some confirmation of this view. One former Fellow of the Ayn Rand Institute went as far as to label anti-smoking legislation a ‘cancer on American Liberty’ in a 2010 op-ed. [6]
More broadly, underlying this view of the well-defined individual is the concept of a will that is perfectly rational and knows exactly what it wants. From this, it follows that when the government claims to act in an individual’s interest, it is really just infringing upon their rights, using their ‘well-being’ as an excuse. After all, an individual with perfect rationality and clear desires has no need for government to act on its behalf. Most libertarians, including Rand and Nozick, would concede that governments can act when a genuine collective action problem is involved. However, this could not be extended to cases where no externality is present (or is minimally present), as in the case of someone drinking alone at home. The main takeaway is that this conception of selfhood leaves no space (and no need) for the state to protect individuals from themselves.
The obvious objection is that the individual can’t be as clearly defined as the view above would imply. Alasdair MacIntyre is one figure who provides a counter-narrative of the self in his 1981 book After Virtue.[7] He argues that there is no such thing as an ‘authentic self,’ perfectly rational with preferences formed outside of the historical and social context in which he or she lives. MacIntyre’s conception of the self draws heavily on Aristotle’s, in that what each of us finds desirable, appealing, and valuable is heavily influenced by our social environment and not solely the product of our individual will. From this perspective, selfhood is less a Platonic Form and more a dynamic, ever-evolving entity shaped by its surroundings and social environment. Examples from our own lives underscore why this is a more accurate way to conceptualise the self. Consider, for example, that our values, narratives, and goals are not static but evolve over time. Reflect on how romances, friendships and family ties influence and shape us into different people, for better or for worse. Recognise that the improvement we gain through education depends on the self-being not fixed, but dynamic. What the self really is, I have written elsewhere, is a narrative connecting our physical bodies, experiences and sensations across time.[8] That narrative is deeply intertwined with the social and political context into which we are born. This concept of the self we might call the ‘dynamic self.’
From here, it is possible to see how there is some scope for government to protect individuals from themselves. If our values are not fixed or given, but rather dynamic and fluid, there opens up a possibility for change and improvement. Recognising that certain primary desires are more or less valuable than others (from a rational perspective), we arrive at a situation where one could consent to the state acting to prevent them from harming themselves, even when that is their immediate desire, but not their secondary desire. Take, for example, the case of a smoker, who wishes to smoke in the moment but later regrets the decision and wishes to quit. The immediate desire here is the desire to smoke. The secondary, higher-order desire is to lead a healthy life and abstain from smoking. Individual desires aren’t formed in a vacuum but instead stem from extensive social and historical contingencies, and in this light, the possibility that the same community works to ensure that individual’s maximum well-being does not seem so implausible and becomes justified. But we remain human, and to live implies some degree of agency. From this angle, though there may be some justification in the state protecting individuals from themselves, there will always be limits.
Part II: the self and the polis
Our conversation proceeds on this assertion that the self and its values, wishes and desires, are shaped not in isolation but through an intensely social process. Recognising this opens up the possibility for greater intervention towards values generally accepted as ‘good,’ I noted above. Yet individuals have wills — even if not absolute — and remain autonomous in their everyday actions. Ignoring this fact and forcing individuals to act in a way deemed ‘good’ for them, against their desires, could result in a lot of conflict if taken too far.
Two narratives are often used to justify rights theory. The first is that humans are endowed with inalienable rights and that governments have a duty to respect these. Ayn Rand’s essay, Man’s Rights, is one such version of this justification that in large part draws on similar conceptions of rights by Nozick and Immanuel Kant. Rights, from this perspective, are a necessary condition to the existence of human life, forming ‘absolute side constraints’ on what governments can do. Bracketing metaphysical questions about the nature of such rights, we are left with the obvious question of why individuals — and by extension, government — should respect the rights of others if not in their self-interest (even when broadly defined). The other defence of rights does a better job of responding to this question. It’s a familiar story: in a state of nature, humans are unfree because they have no security and no means of planning ahead. The life of man in such a state would, in the words of Hobbes, be ‘solitary, poor, nasty, brutish, and short.’[9] Creating a legal framework for human rights and the necessary arrangements to enforce them is in all of our interests, hence the rise of the state. The question, whether one believes solely in positive rights (those created by law) or natural rights (the former conception), becomes what rights to recognise? Even if one holds that rights are natural, there will inevitably be some disagreement about what those natural rights are, and the debate mostly becomes one of what positive rights the law should recognise and uphold.
At all points in our discussion, we must keep a close eye on what we want the law to achieve. Most of us take the pursuit of happiness and our own flourishing for granted. Everything, including rights and the state, either adds to or detracts from this goal, and it is this that we must keep in mind as the metric for what constitutes a proper and an improper right. Rights deemed proper, and worthy of being recognised by the law, are those instrumental to human happiness and flourishing. Rights deemed improper are the opposite. Equally as important is ensuring that our concept of rights is based on a proper assessment of human nature.
From the perspective of the ‘authentic self,’ individual autonomy would rightly play a central and sacrosanct role in our theory of rights. From that of the ‘dynamic self,’ which I have argued better captures what the self is, individual autonomy and agency should still play an important role, not an unlimited one. In the polis, which connects thousands, if not millions of people together in one place, order is only possible with the existence of a succinct individual sphere created through rights. Chief among these rights is the right to one’s life: to be able to live without fear of murder or violence. From that right stems a number of corollary rights that are necessary conditions for living a whole and independent life: the right to private property, some level of education, and liberty. All of these are in the interests of every individual and are fully compatible with the ‘dynamic self.’ But this can be taken too far. A claim to rights such as ‘non-interference,’ for example, is limited in that there is no way to live without some interference from others.
The way forward is to combine the work of both Friedrich Hayek and Amartya Sen (who indeed acknowledges Hayek’s scholarship). In his Constitution of Liberty, Hayek underscores the importance of rights as a necessary condition for a free and progressive society.[10] Yet even he notes that these are not unlimited and must be understood by what a reasonable person would take as sensible. Brushing past someone in the subway, for example, should not be considered an act of violence. Shoving them with excessive force would. Separately, Hayek outlines the role that rights play in protecting minorities. It is in the interest of all, he argues, to protect rights for everyone, including minorities, because a failure to do so leads to a tyranny of the majority and stultifies progress. Amartya Sen’s contribution is to highlight the importance of looking at rights both from a procedural and a consequentialist lens.[11] Rights should be understood as procedures that help to secure the best outcome for most individuals across an extended period, not just these constraints that exist out there.
Part III: Neutrality and consent
Connecting this back to our research question on whether the state is justified in protecting individuals from themselves, we seem to arrive at the answer that no, the state is not justified as this would violate an individual’s right to autonomy and risk creating excessive conflict, undermining the very raison d’être for which individuals form a state. This is so even in light of the ‘dynamic self’ whose values are fluid rather than given; the risk for conflict is just too high, especially given epistemological constraints on what is really good for an individual.
Forcing individuals to act against their will, even on the justification that it’s protecting them against themselves or in their own interest, violates the principle of autonomy which in a political sphere we might call ‘consent of the governed.’
For such an action to be justified, that individual must already recognise the need for protection, in which case there would be no need for the government to step in. Alternatively, even if both the individual and government officials agree that an intervention is in the interests of that agent’s flourishing, the use of government to intervene might violate the autonomy of others because it would require them to put forth the time and resources needed to operate such a machine. An example helps to clarify this: say a man suffers from alcoholism and asks the state to help him in a given case by providing rehabilitation services. For the state to do so effectively, it will need to make a claim on the resources of others to fund such intervention.
What if there were a way to bridge both personal autonomy and the state stepping in to protect individuals when they really needed it? That would seem preferable, given our acknowledgement that values aren’t formed independently but instead by the same state and community into which one is born. Peter de Marneffe’s paper, Liberalism, Liberty, and Neutrality does exactly that in his discussion on political neutrality and consent of the governed.[12] Political neutrality can be understood as not emphasising one set of values or actions over others. Marneffe distinguishes between two types of neutrality: ‘concrete neutrality,’ which would entail neutrality of all values and policies themselves, basically requiring consensus on all issues; and what he calls ‘neutrality of grounds,’ which means general agreement over the principles that go into shaping the concrete policies. This might be the key to bridging autonomy and individual rights with mechanisms for protecting individuals from themselves. Individuals need not agree with every individual action the state takes. Yet as long as they give consent to the underlying principles governing when the state can intervene (one example might be extreme cases of addiction), then the condition of consent of the governed will be met, ensuring that individual autonomy is respected. And given the fluid nature of the dynamic self, there is good reason to think that most people will accept some level of immediate intervention in their life and consent to the principle. This is not a policy paper, those limits and the extent to which that principle can be taken will depend on the situation and context of a nation. Yet we conclude that the state can indeed be justified in protecting individuals from themselves whilst still respecting their rights.
Conclusion
The language of rights so commonly invoked in discussions about the limits of government may be one of the reasons why the concept of the self has become confused, so that the self is seen to be as inviolable as those rights themselves. It is important, however, to remember why rights exist in law and from where they stem. Individuals have desires, values and ambitions; rights exist because they allow individuals to flourish and reduce conflict within society. Yet those same values and ends that individuals pursue are not developed in isolation. They are the product of social, historical and political forces in large part beyond one’s control. This is significant: when an individual seems to be acting in a way that is seemingly detrimental to their own flourishing, the same society from which they came often has an instinct to step in and assist. I have argued this is justifiable since personal autonomy, and its political alternative of the consent of the governed, is respected so long as individuals agree with the underlying principles of action. For epistemological reasons among others outside the scope of this paper, there must be a high bar before intervention. Furthermore, that actions aimed at protecting individuals from themselves, from sugar taxes, seatbelt laws, drug prohibitions, etc. can be justified on principle does not mean they can be justified in practice. Sometimes, the costs of implementing a policy are just too high, the war on drugs being just one example. This conclusion might be unsettling for those weary of excessive state intervention. It need not lead to pessimism however: we all have an instinct to help those who surround us and around whom we live; this gives us a means to lend an arm to those in need when they have fallen by the wayside, as any of us might inevitably do at some point.
Works Cited
[1] Mill, John Stuart, et al. On Liberty, Utilitarianism, and Other Essays. New edition, Oxford University Press, 2015. Chapter 5.
[2] Thaler, Richard H., and Cass R. Sunstein. Nudge: Improving Decisions About Health, Wealth, and Happiness. Yale University Press, 2008.
[3] ‘Prime Minister to Create “Smokefree Generation” by Ending Cigarette Sales to Those Born on or after 1 January 2009’. GOV.UK, 4 Oct. 2023, https://www.gov.uk/government/news/prime-minister-to-create-smokefree-generation-by-ending-cigarette-sales-to-those-born-on-or-after-1-january-2009
[4] ‘Baltimore & Ohio R. Co. v. Goodman, 275 U.S. 66 (1927)’. Justia Law, https://supreme.justia.com/cases/federal/us/275/66/
[5] Schopenhauer, Arthur, and Arthur Schopenhauer. The World as Will and Representation. Dover Pub, 1969.
[6] ‘Anti Smoking Paternalism A Cancer on American Liberty’. The Ayn Rand Institute, https://ari.aynrand.org/issues/government-and-business/regulations/anti-smoking-paternalism-a-cancer-on-american-liberty/
[7] MacIntyre, Alasdair C. After Virtue: A Study in Moral Theory. 3rd ed, Bloomsbury, 2011. Chapter 14.
[8] Lehodey, Adam Louis Sebastian. ‘Decoding the Self through Auster’s City of Glass | The New York Trilogy Analysis’. Medium, 8 Sept. 2023, https://adyleho.medium.com/decoding-the-self-through-austers-city-of-glass-the-new-york-trilogy-f09c5c49ed64
[9] Hobbes, Thomas. Leviathan. Edited by C.B. Macpherson, Penguin Books, 1985, p. 186.
[10] Hayek, Friedrich A. von, and Irwin M. Stelzer. The Constitution of Liberty. 1960.
[11] Sen, Amartya. Development as Freedom. Oxford University Press, 2001.
[12] De Marneffe, Peter. ‘Liberalism, Liberty, and Neutrality’. Philosophy & Public Affairs, vol. 19, no. 3, 1990, pp. 253–74. JSTOR, https://www.jstor.org/stable/2265396.
