People should not behave in an unworthy manner, the French judge ruled
Sometimes we have to protect people from themselves. But where the line is, opinions differ. Read about it in this first article on paternalism, on human dignity.
Manuel Wackenheim has dwarfism; he is 118 centimetres tall. He lives in the remote Moselle department in France. In 1990, when he was 23 years old, he met an enterprising impresario who suggested he start performing in discos. He got an american football uniform fitted, including a harness and a helmet. For a fee, customers lifted him up with both hands and threw him as far away as possible without running up. He landed on a floor covered with mattresses. Wackenheim weighed 55 kilos; the record was 3.92 metres.
The business was going well for a few years. It didn't make Wackenheim rich, but he could make a good living from it. He was not interested in other jobs; he had fewer options on the labour market anyway because of his height. The show was quickly described in the press. There was public outrage. Mayors tried to ban the show. Ultimately, the case came before the highest French court, the Conseil d’État, which banned the show in a summary judgement. The basis for the ban was disruption of public order, consisting in the undermining of respect for human dignity.
That was very sad for Wackenheim, who lost his livelihood. He appealed in Europe and to the United Nations, but lost everything. The last we know of him is that he lives with his elderly mother, he has no job, and wastes his time with computer games. He is still outraged. Dwarf throwing was his autonomous choice, he believes. He had fun with it, he felt that he was making himself useful and could provide for himself. If you didn't want to see the show, you didn't have to go. For him, the ban was an infringement of his human dignity.
I didn't want to be famous, I just wanted to have my own thing. Why can't I be thrown? Where is the freedom of expression? Being small was not a problem for me. But it was made clear to me that I was the weak link in the community.
— Manuel Wackenheim in: Manuel Wackenheim, cloué au sol, Libération, 30 January, 2014
We will be talking about paternalism in this and upcoming episodes. Should we protect people from themselves? It is one of the most important and oldest motives for intolerance.
Augustinus thought we should punish heretics out of love. According to him, even the death penalty was an act of love. The punished person can then no longer sin and his soul can be saved. Inquisitors saw themselves as spiritual physicians who diagnosed and treated the disease of heresy for the benefit of the patient and the community. If you had the wrong opinion, you had to be helped to change your opinion (or keep your mouth shut). Not only can you infect others with a wrong opinion, but having a good opinion is also in your own interest.
What is paternalism?
In the case of paternalism, someone else exerts influence on you to prevent harm. That harm does not have to be material; for example, it can also consist of well-being, the good, happiness, needs, interests or values. Characteristic of paternalism is that there is a threat of harm to yourself in any case, the intervention is “for your own good,” but others may also be affected at the same time. You need help, for example because your will and your interests do not match, you don’t have a complete picture of all interests, you do not sufficiently take certain interests into account, or because you do not have sufficient control over yourself.
Legislation against addictive activities such as gambling, alcohol and drug use is a form of paternalism, just like censorship, mandatory participation in a pension scheme, mandatory helmet use for motorcyclists, and mandatory prescription for medicines. But paternalism does not necessarily have to come from the government. You can also think of a wife who hides the whiskey bottles of her alcoholic partner, or the beggar at the supermarket who asks for money, but is given a bag of apples.
After a general introduction, we will consider three frequently mentioned motives for paternalism. The other must be protected from himself:
from the point of view of human dignity;
because people are irrational and can therefore harm themselves;
to prevent harm to others.
In this episode we discuss the first motif, human dignity. I will then devote separate articles to the other motifs.
Three perspectives on paternalism
The three major ethical movements have different views on paternalism. In short: Kantian deontology is most categorical in its rejection of paternalism. According to Kant, autonomy and freedom are at odds with paternalism, as long as you don't get in someone else's way. Utilitarians will see the advantages of paternalism: as long as the common good improves, they will not easily object to interventions in other people's lives. But anyone who thinks this way faces the supreme utilitarian Mill, who rejected paternalism under many circumstances. If we are looking for advocates of paternalism, then we will find virtue ethics the best match. Many virtue ethicists want people to interact intensively with each other, to get the best out of each other, and to bridge differences of opinion. Now I'm going to elaborate.
Kant against paternalism
The objections of Kant against paternalism are threefold. First, as a moral, rational being, man deserves respect, just as she is obliged to respect others. We are obliged to treat others as ends, not merely as means, and thereby do justice to everyone's inner worth and dignity. If I influence your options without your permission because I think I know better than you, I am showing no respect for you as an autonomous being, even if you act irrationally.
Secondly, Kant believed that everyone should find happiness in their own way. We inevitably make mistakes, but we learn from them. The other person who influences our choices against our will infringes on our autonomy and our learning process.
Third, Kant believed that everyone has the right to their own freedom: as long as we adhere to the universal laws and do not hinder someone else's freedom, we can go about our business as far as he was concerned. Someone else who takes away your options is doing something that he himself would not accept. And this makes paternalistic intervention unacceptable. The community must intervene if we harm someone else or stand in the way of their freedom, but as long as that is not the case, everyone must leave us alone.
Utilitarians on paternalism
Then the utilitarians, or perhaps more broadly: the consequentialists, who judge the morality of behaviour based on its consequences. At first glance, a utilitarian will have little difficulty with paternalism. Paternalism aims to increase the well-being of individuals, while utilitarians aim to improve collective well-being. That sounds like a match.
But there are concerns. You are forced to do something you don't feel like doing, but which the other person says is good for you. You have to eat spinach, even if you think it's disgusting. It is healthy for you, but does it also improve your well-being? Opinions are divided about this.
Anyone who is treated paternalistically gives up at least some of their autonomy. Suppose you are forced to do something fun that is also good for you. You love swimming. Now there will be a law that obliges you to swim for an hour every day. Do you still have fun with that?
People differ so much from each other that everyone can best decide for themselves what gives them the most well-being. The other person is fundamentally unable to determine for you what your preferences are. Even if you have the wisest tyrant in power to generate the highest possible general well-being, the outcome will be inferior to a society in which everyone can determine for themselves how they become happy. Many utilitarians find this rule of thumb so fundamental that it takes precedence over the principle that the general well-being should be all-determining. But both principles are consequentialist in nature and bite each other in the tail.
A utilitarian can reason that small interventions with large welfare effects are in any case legitimate if they produce a net welfare gain. Seat belts are mandatory almost everywhere in the world, and for good reason. Nudging is another thing: small, inconspicuous interventions that still have behavioural effects. Smaller plates lead to smaller appetites. A picture of a fly in the urinal improves aim.
A utilitarian paternalist does not advocate depriving people of all freedom; removing, discouraging or punishing the worst options already counts as paternalism. And there may be good reasons for this, including the fact that people often make the easiest choice and are not able to let the long-term effects determine their behaviour. More about that later.
The leading utilitarian, John Stuart Mill, took a principled stand against paternalism in his essay On Liberty (1859). Mill wrote that the book was about civil, or social liberty: the nature and limits of the power which can be legitimately exercised by society over the individual. For Mill, it was clear for the sake of the common good that society should restrict the freedom of the individual as little as possible.
Mill's principle, known as the harm principle, was expressed as follows:
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 opinions of others, to do so would be wise, or even right. (...)
Over himself, over his own body and mind, the individual is sovereign.
— John Stuart Mill, On liberty (1859)
Why did he think that? Mill considered individual freedom a crucial value. He derived this view from observation of the natural nature of man.
Human nature is not a machine to be built after a model, and set to do exactly the work prescribed for it, but a tree, which requires to grow and develop itself on all sides, according to the tendency of the inward forces which make it a living thing
— John Stuart Mill, On liberty (1859)
All people are different from each other. It is therefore pointless and harmful to demand that everyone behave the same way. A good life is only possible if you choose your own path.
Mill lived in the mid-19th century, when society was becoming a modernized mass society. He saw that that society encouraged conforming behavior. Human energy and creativity were in danger of being suppressed. True happiness can only be found with authentic, spontaneous people. But it is also better for society to consist of a colorful collection of stubborn individuals than of a conformist crowd. A society with a rich variety of "life experiments" is good: individuals can be inspired by a wide range of possible life forms, making progress possible. Friction leads to energy. Conformism leads to passivity and stagnation. That is why Mill believed that interventions in other people's lives are inappropriate, even if the other person is indisputably completely wrong.
Mankind are greater gainers by suffering each other to live as seems good to themselves, than by compelling each to live as seems good to the rest.
— John Stuart Mill, On liberty (1859)
For Mill, the fact that we are not allowed to intervene, i.e. we are allowed to use coercion when someone does stupid things, did not mean that we should just leave people to their fate. Even without coercion, we can point out the mistakes people make. But that is only allowed with persuasion, with a gentle hand, not with force.
Mill did place a number of comments on his harm principle, and the harm principle can turn out to be more paternalistic than one might think at first glance. We will return to this another episode, entirely devoted to the harm principle.
Virtue ethical paternalism
Then the virtue ethicists: what do they think about paternalism? First of all, there are quite a few virtue ethicists who believe that virtue is a private matter. It's okay if you strive for a virtuous life full of eudaimonia or enlightenment. It is fantastic if you can help your fellow man to also achieve a high state of eudaimonia. But there should be no coercion. At most, there are a number of compelling natural law principles (do not kill, do not steal, etc.) that everyone must comply with. This view is often found in Buddhism, for example.
The patriarch of Western virtue ethics, Aristoteles, introduced the term eudaimonia: doing good and living well, which can also be summarised as well-being. For Aristotle, eudaimonia was not merely a private matter, but something to which everyone should strive. A state is a partnership in which everyone strives for the same thing. The state must therefore ensure that everyone works towards collective virtue.
Every city-state is a community of some kind, and every community is established with a view to some good; for mankind always acts in order to obtain that which they think good. But, if all communities aim at some good, the state or political community, which is the highest of all, and which embraces all the rest, aims at good to a greater degree than any other, and at the highest good.
— Aristoteles, Politika (4th century BCE)
Aristoteles is popular in religious circles. Authoritative theologians in Christianity and Islam, including Tomasso of Aquino and Ibn Rushid, derived many of their insights from him. Aristotle's views are compatible with the idea of a theocracy.
A theocracy in itself sounds clear: everyone must do what is right, in accordance with the will of God. According to Tomasso of Aquino, the government must ensure that everyone gets to heaven and prevent everything that stands in the way. But the practice is more difficult.
First of all, there is the theological problem of free will. Your virtue is only worth something if you voluntarily do the right thing, even though you had other options. Then it is not useful if the government makes all bad options impossible. The doctrine of free will is central to both Christianity and Islam.
In addition, it was soon discovered that it was impossible to combat all sin. Not even a totalitarian state would succeed. Because immoral behaviour does not only have to consist of things that you do to someone else. You can also be quite immoral on your own, without anyone else noticing. A legal ban on masturbation would, let us say, encounter an enforcement problem. In fact, you don't even have to do it: sinful thoughts count too. And even if you were to succeed, you may be able to forbid people from all sin, but you cannot force people to act out of faith or virtue. A state that wants to force everyone to be virtuous, faces an impossible task.
It is therefore not without reason that even thinkers of the religious-conservative persuasion propose a degree of restraint. Thinkers like John Finnis and Robert G. George should not be underestimated. Not only are they taken seriously among philosophers, although they may form a bit of a niche. But their writings also express views that perhaps have the greatest support in the world community. Remember that religiously conservative views are dominant in large parts of the world: in Islamic countries, in Latin America, among a large minority in the United States, in Russia, and also in large parts of Africa and East Asia. Consider, for example, bans on blasphemy, homosexuality or euthanasia. All three are illegal in large parts of the world.
Finnis and his kindred spirits believe, first and foremost, that governments have a moral task: they must educate, instruct, and adjust. Churches and religious associations play a crucial role in their system, and the government wholeheartedly supports them.
There is no consensus in the religiously conservative world about the degree of coercion that the government may apply. The most basic, theocratic form is that everything that the Holy Scriptures forbids, is forbidden. Apostasy, for example, or sodomy. Free will is then limited to what God's law has not prohibited. Your entrance into heaven does not depend solely on whether you keep the law, but also on whether your faith is strong enough and whether you act according to the instructions of the prophet or the messiah.
A slightly more moderate form of religious conservatism accepts democratic principles in a pluralistic society in which not everyone has the same religious beliefs. God's law can only be introduced through democratic means. Finnis and George are on that line. The question of whether to intervene in reprehensible behaviour is primarily determined by Mill's harm principle.
But that harm principle is interpreted broadly. If you hurt people, for example in their religious feelings, there is harm. And if you behave immorally in public, you damage public morals, and that is also harm, and therefore a basis for intervention. Again: more about that in a next episode.
Now, let’s consider paternalism from the point of view of human dignity.
Paternalism to protect human dignity
In the Wackenheim case, the judge found that people should be protected from themselves out of respect for human dignity. As we saw earlier, human dignity is a diffuse concept. Kantians, Christians, lawyers and Marxists love the term, but they all mean slightly different things by it. The decision of the Conseil d'État in the Wackenheim case is hardly substantiated. It is therefore impossible to determine what meaning of dignity the highest French court had in mind when it prohibited a citizen from allowing himself to be thrown onto a mattress for payment. We just have to guess.
In an earlier episode I went through the different meanings of human dignity using one example: a Venezuelan street prostitute in Buenos Aires. We can do the same with the Wackenheim case.
Kant would especially critically question the pitchers. Would you be okay with it if everyone let others throw themselves on a mattress for money? I can't answer for everyone, but although I have never practised this sport myself, I would not object to it being used professionally as a projectile. Provided the reward is enormous, of course, and the risk of injury is low.
Throwing little people just for fun comes awfully close to Kant's categorical imperative: you should never use people merely as a tool, a means. But on the other hand, Wackenheim did it voluntarily, had fun with it, and got paid well for it. Wackenheim was not merely a means. Kant abhorred paternalism.
Hannah Arendt defined human dignity as the right to have rights. That is also not at issue here. By allowing himself to be thrown onto a mattress, Wackenheim's rights were in no way at stake. Wackenheim did it voluntarily, he had all civil rights, and he could go to the police if people crossed the line.
The classical Roman meaning of dignitas comes closer. It wouldn't enter the mind of a Roman gentleman like Cicero to be thrown on a mattress for payment. On the other hand, a dignified person was seen as a rational person, full of self-control, who behaves in accordance with his position and task. Wackenheim may not have behaved like a gentleman of rank, but he cannot be denied self-control, rationality and behaviour in accordance with his position and task. Besides, Cicero would not have expected any dignity from Wackenheim. The lowly people just do the most bizarre things, nothing to worry about.
Then there is another meaning of dignity that has to do with respect. We must treat our fellow man with respect as part of God's creation, Tomasso of Aquino said. After all, every person is created in God's image. It can be countered that Wackenheim was also created in God's image, he had chosen his profession voluntarily, and he enjoyed it. Denying someone their voluntary livelihood does not really show respect either.
That may well be the case, Karl Marx would object, but a society in which people have to be humiliated in this way to earn their living is an unjust society. Time for revolution! On the other hand, Marx was not at all interested in individual rights. He might have come to the conclusion that Wackenheim needed to be woken up and join all the other wretched people on earth to bring about a better political system.
Neither Kant, Arendt, Cicero, Tomasso or Marx would have come to the conclusion of the French verdict on the basis of dignity. Who else can the Conseil d'État turn to to support its view of human dignity? The answer may be that the Conseil d'État found it humiliating. The dignified lawyers could not bear to see anyone feel forced to be humiliated like this.
I can think of a few other situations where people voluntarily behave undignified. Just go to a busy nightlife street after closing time on a Saturday night, and take a good look. And is prostitution also inhumane? Or sadomasochism? Or assembly line work? And if someone voluntarily covers her body and face in public for religious reasons, does that also violate human dignity? Should all that be banned?
And apart from that: if human dignity means what is necessary to function fully as a human being, then we already have an idea of that. In addition to basic necessities of life, the conditions that, let's say, every mammal needs to lead a full life, we know that people are characterised by a need for a degree of autonomy, competence and connectedness. Are there perhaps any gaps in that list? Do we also need another umbrella term, human dignity, to fill those gaps? I don't think so. Human dignity is the sum of the conditions under which people can function adequately: physical conditions, autonomy, competence and connectedness. We do not need to use the term dignity for our need for respect: that is already covered by the concepts of competence and connectedness. There is no reason to assume that Wackenheim lacked those factors.
But still. By throwing little people onto a mattress, the audience was taught that it is okay to treat people with abnormal physical appearances with disrespect. It falls into the same category as exhibiting people with a congenital defect in a circus, or having dark Africans in a wicker skirt with a bone through their nose do a dance. Those objects of public curiosity may have thought it was a fine thing to do, for adequate compensation.
But it could reflect on their fellow sufferers who you could meet on the street. The ban on dwarf throwing has little to do with human dignity. But it could certainly cause harm: to the throwers who become accustomed to careless handling of small people, and to other small people who are more likely to be seen as objects, or as strange beings, or as a species of human beings to be treated carelessly.
Viewed in this way, human dignity is not an independent motive for paternalism, but Wackenheim might still be forced to stay at home because his profession caused social damage.
This is how we keep the tension going. Does dwarf throwing cause social harm? To assess that, we must delve deeper into the harm principle, already mentioned a few times here. We will come back to that later.
For further reading
Aristotle, Politics (4th century BCE), also available online in English translation
John Stuart Mill, On liberty (1859)
John Finnis, Natural law and natural rights (1980)
Donald VanDeVeer, Paternalistic intervention: the moral bounds on benevolence (1986)
Kalle Grill, Jason Hanna (red.), The Routledge handbook of the philosophy of paternalism (2018)
Robert P. George, The concept of public morality, The American Journal of Jurisprudence (2000)
Christopher Tollefsen, Pure perfectionism and the limits of paternalism, in: John Keown, Robert P. George (ed.), Reason, morality, and law. The philosophy of John Finnis (2013)
Marcus Düwell et al. (red.), The Cambridge handbook of human dignity (2014)
Christopher Macleod, John Stuart Mill, Stanford Encyclopedia of Philosophy (2016/2020)
Michael Rosen, Dignity. Its history and meaning (2012)
This was the third episode in a series about freedom and toleration. The previous episode was about individualism and community. The next episode will be about paternalism due to irrationality.