If you haven't started your final paper yet, you might want to think about it.
It is undoubtedly too early to make final judgments about the justification of paternalism, or to polish the prose in which you express your reservations, but you should at least be taking notes that could be the foundation of the final paper. Open a word processing file. Add notes and nuances; revise; experiment with formulations of principle. Write down your tentative conclusions, arguments that seem to work, distinctions that matter, questions to answer, objections to meet, issues to consider, and passages to reread. Work toward explicitness, toward depth, toward sophistication, toward an answer you can live with, toward persuasive and explicit arguments.
Read the relevant parts of the syllabus again for a description of the assignment.
Here are some answers to the most commonly asked questions about the final paper and some warnings and reminders to help you avoid the most commonly occurring weaknesses in philosophy papers.
- Remember that there is a question to answer in the paper, namely, when (if ever) is paternalism justified. Don't write on the general topics of this course without answering this particular question. Make your answer and its supporting argument the primary focus of the paper. I will grade you largely on the directness of your answer to the question and the adequacy of your supporting argument.
- Make your answer explicit. Don't make me infer it.
- Remember that you must justify your answer, not merely articulate it. The most common failing in this paper is to omit supporting arguments for your various conclusions. Your conclusions may be clear, but without supporting arguments your conclusions are more like confessions, or legislation, or tyranny, than philosophy.
Don't think that some conclusions are so obvious that they need no supporting argument. For example, many students think it's obvious that we should not paternalize the competent and that we may (or should) paternalize the incompetent. These may be good positions to take, but it's not obvious why. They imply that autonomy is more valuable than the avoidance of self-harm, even serious self-harm like death. Hence it implies that autonomy is more valuable than life. This needs some supporting argument.
- In grading your paper, I will not judge your conclusions to be 'right' or 'wrong'. But I will look closely at the clarity, strength, and explicitness of your supporting arguments. A paper whose supporting arguments are unclear, skimpy, or missing cannot get better than a C. Your arguments (reasons, justifications) are primary!
- The second most common failing in this paper is to avoid detail, to remain general and abstract, to leave us unclear or confused about how your principles would work in practice. In each of your three sections (on criminal law, medicine, and education), show us the consequences of your principles for some important cases.
As a rule of thumb, aim to decide 2-3 of the actual cases we discussed in each unit. For example in the criminal law unit, we did Bowers v. Hardwick, Barnes v. Glen Theatre, Texas v. Johnson, American Booksellers Assn. v. Hudnut, and Washington v. Glucksberg. . Decide 2-3 of these in the criminal law section of your paper. Do the same with the medicine and education sections of your paper.
In discussing cases, you'll have to make your principles specific enough to apply to real-world situations. That's the point.
Another rule of thumb: you should make your principles specific enough so that if we read your paper carefully, we could decide the next 100 paternalism cases to show up in the courts, strictly in accordance with your values and principles.
If you write about a case we did not read together in class, then you will need to restate the relevant facts for us. But be brief in order to keep the focus on your conclusions and their supporting arguments.
- I can summarize the last couple of points this way: give us detail, argument, and guidance. We want to see what you mean (detail). We want to see why we should agree with you or at least find your view reasonable and responsible (argument). And we want to see how your position would make a difference if we adopted it (guidance).
- This is not a research paper. You don't have to incorporate or respond to the views of the authors we read during the term. We read them to help us think through the issues. Now I want your thoughts on those issues, not interpretations or evaluations of those authors. Of course, you may use what you have read, if you wish.
Realize, however, that philosophers are not authorities. Philosophy is like science in that we do not make a case for a conclusion by citing the names of earlier authors who agreed with us, even if they are influential or prestigious. Instead, we appeal to their arguments or evidence. (Then we cite their names to avoid plagiarism.)
In other words, you score no points by noting that Mill agrees with you. Mill's agreement is not a supporting argument; you might both be wrong. If you're both right, then your job is to find an argument which will show it.
- Remember that the question is normative: when should we paternalize. (It is not descriptive: when do we paternalize.) Current laws and practices will almost never be relevant to an argument for a normative position. Maybe we currently paternalize when we shouldn't, and maybe we don't paternalize when we should.
- Avoid one-sided arguments. If your conclusion is that some kinds of paternalism are justified, then don't merely tell us what is good about those kinds of paternalism. Or if you want to argue that some kinds of paternalism are unjustified, then don't merely tell us what is bad about them. Your arguments may be strong, but for all we know the arguments on the other side are even stronger. We won't know, and you won't know, until you examine the arguments on both sides. Make the positive case that your conclusions are justified, and the negative case that the strongest arguments on the other side fail, do not suffice, or can be answered.
The question whether paternalism is justified is interesting chiefly because most people see a conflict of values here. They see reasons to think that sometimes paternalism is justified and reasons to think that sometimes it is unjustified. If you write as if there were nothing to be said on the other side, you will almost certainly oversimplify the issues.
Another way to make the same point: we know that there is a case to be made for paternalism: it prevents self-harm. But we also know that there is a case to be made against it: it diminishes liberty. The central question of the course (and paper) is when paternalism is justified all things considered, or even in light of the arguments to the contrary. So if you simply recite the case on one side without considering the case on the other, then you will have missed the central question.
One more way to put the same point: to justify paternalism because it prevents self-harm is insufficient. To oppose paternalism because it diminishes liberty is insufficient. To justify it you'll have to show (not merely assert) that preventing self-harm is more important than liberty; and to oppose it you'll have to show (not merely assert) that liberty is more important than preventing self-harm.
A good way to avoid these problems is to follow Mill's practice of raising objections against yourself and then answering them (making whatever concessions you feel are necessary). Try to imagine the strongest objections that anyone could make against your views. If you can't answer these objections, then change your mind!
- Don't be afraid to recognize qualifications or exceptions to your principles. That is not necessarily to contradict yourself. If you do it well, then you respect the complexity of moral life. It's only when you do it badly that you contradict yourself.
- If like Devlin you think there is no principle in this area, then at least tell us what factors must be weighed, and give us their relative weights. We still want to be able to decide the next 100 cases on the basis of the detailed discussion in your paper. To tell us that a question is to be decided "case by case" is insufficient. How is it to be decided case by case?
- When I ask when paternalism is justified, I am asking when it is (1) morally justified (2) according to you. Obviously, then, it's not enough to say that some kinds of paternalism are legally justified, or that paternalism is morally justified to those who sincerely believe it to be justified.
You may be reluctant to judge when the actions of others are morally justified. I can understand that. But do not confuse that reluctance with what might be called the Shortcut Thesis. The Shortcut Thesis is the proposition that everyone is morally justified, according to you, in whatever they do, as long as they think they are justified. I call it the Shortcut Thesis because it attempts to eliminate all the hard work in the assignment. Since I am asking for your own thinking on the question, I cannot rule out the Shortcut Thesis; you might really believe it. But I can remind you, or warn you, that the Shortcut Thesis (1) is not at all equivalent to the reluctance to judge, (2) must be defended, like any other thesis, and is very hard to defend, and (3) is a claim that you could accept only if you had no moral standards of your own. Moreover, (4) it implies that you would accept anybody else's decision to paternalize you, provided they were sincere in thinking themselves justified. Think carefully about whether you could live with that. Finally, (5) it doesn't answer the question when you would paternalize others and when you would not.
- Here are some other shortcuts to avoid. You should only avoid them when they are so short that they prevent you from addressing the important issues implicated by our question. If you can elaborate on them in the ways suggested below, then they are no longer shortcuts and you should feel free to adopt them if you are so inclined.
- Thesis: We may coerce people to advance their "best interests". Shortcut: You never tell us (1) what their best interests are or (2) why advancing people's best interests is more important than respecting their liberty.
- Thesis: People should be free until they use their freedom for self-harm, whereupon they may (or must) be paternalized. Shortcut: You never tell us whether this paternalism is justified (1) because the self-harm is incompetent, (2) because the self-harm is severe, or (3) because preventing self-harm is more important than liberty. If the paternalism is justified because the self-harm is incompetent, then is all self-harm incompetent? (If so, why?) If some self-harm is competent, may it still be paternalized? (If so, why?) If paternalism is justified only when self-harm is severe, then what counts as severe self-harm and why is it worse than loss of liberty? If preventing self-harm is more important than liberty, then why? Without answering these follow-up questions, the heart of the assignment is cut out.
- Thesis: Proxies should make decisions for incompetent medical patients. Shortcut: You never tell us (1) who should be proxy or (2) what standard the proxy should use. Should the proxy follow the patient's best interest, the patient's real will, the patient's most recent expression of desire, or what? And why? Proxies can paternalize as much as decision-makers who ignore proxies. We must know what principles ought to guide the proxy's decision.
- Thesis: Whatever the legislature lays down as the law (paternalistic or not) is justified because we "consented" to it through our votes. Shortcut: You never consider (1) the possibility that we might not have voted for the winning candidates for the legislature, (2) the possibility that we voted for the winners but did not consent in advance to all their legislative proposals, (3) the question when the majority is justified in paternalizing the minority, (4) the question when even those for whom we did vote may take steps against our will to save us from ourselves.
- If you like, you may include legal moralism under the general rubric of paternalism. Then the question becomes: when, if ever, is it justified to coerce someone to prevent self-harm or sin? (Or more broadly: when, if ever, is it justified to make consent irrelevant in deciding when to coerce people?)
- Remember that not all coercion is paternalistic. Only coercion directed against self-harm is paternalistic (coercing people for their own good, helping them against their will). Coercion directed against HUCO is not paternalistic.
The paper should be about paternalism, not coercion in general and not HUCO-prevention.
There are two mistakes you can make here. The first is to consider HUCO-prevention paternalistic. It isn't. The second is to take valuable space in your paper discussing HUCO-prevention when you could be deepening your discussion of paternalism.
However, HUCO-prevention will probably come up. For example, many self-harming acts are also other-harming acts. People who wish to prohibit them often have mixed motives (paternalistic motives and HUCO-prevention motives). So feel free to discuss HUCO-prevention, but make sure it remains a secondary issue. Paternalism is the primary issue.
- Also remember that not all paternalism is done by the government or is expressed in laws. There are hard cases of paternalism by friends, doctors, parents, and teachers. Since you will address paternalism in criminal law, medicine, and education, you will remember this as each new section reminds you. But beware of unguarded statements that assume that paternalism comes from only one direction.
- Avoid circular definitions of competency, such as "no competent person would ever do x" when the only reason to think so is the harmfulness of x. If you want to paternalize people who do x, fine; but if you do so on the ground of incompetency, then you must be able to show, on independent evidence, that people who do x are incompetent.
A subtle variation on this mistake is to assert (perhaps in your section on criminal law) that it is justifiable to paternalize people to prevent certain kinds of serious self-harm, because they must be incompetent, and then to assert (perhaps in your section on medicine) that competent patients should be allowed to refuse life-saving medical treatment. This is simply inconsistent. You'll have to decide what competency is, whether consent to serious self-harm can ever be competent, and if so, when a competent person's autonomy takes priority over health, life, and safety, and when it doesn't.
(If you would paternalize to prevent serious self-harm, then be clear why. Is it because the self-harm is serious? Is it because people risking such self-harm would be incompetent? If the former, why does the seriousness of the self-harm override the person's liberty? If the latter, how would you know the person was incompetent without using a circular definition of competency?)
- Many people assume that paternalism is always wrong, or that "paternalism" is a pejorative term. Hence, if they approve paternalism over children and the incompetent, then they mistakenly classify it as non-paternalism rather than justified paternalism. You don't have to approve of this or any other kind of paternalism. But you should not automatically infer that a practice is non-paternalistic just because you approve it.
I would say that the three hardest aspects of this paper are (1) to come to conclusions that you can actually accept and defend, (2) to offer explicit and persuasive arguments in support of your various conclusions, and (3) to avoid oversimplifying the issues. These tasks can only be accomplished by patient, careful work over time, not by a sudden flash of insight. This is a good reason to begin work soon, and let your notes on reading and discussion help shape your thoughts on the paper.
I know that the whole assignment is made more intimidating by the difficulty of the question. If it helps, you should know that I'm not asking for a settled and final answer, which would be premature. (Indeed, I hope you continue to think about this question for the rest of your life, and continually reexamine your tentative answers.) Instead, I'm looking for your thoughtful, detailed, consistent, argued answer as of now, after one semester's worth of reflection. I understand that this will be a snapshot of a work in progress.
You will very likely have other large papers, or exam preparations, to take your time at the end of the term. That's another good reason to start to work on this paper now.
If you run into any snags in thinking through the issues, or writing out your views and arguments, please stop by my office or drop me a line.
This file is an electronic hand-out for the course, Consent and Coercion.
Department of Philosophy,
Earlham College, Richmond, Indiana, 47374, U.S.A.
firstname.lastname@example.org. Copyright © 2000-2003, Peter Suber.