First delivered as the 1992 Emerson Lecture at Earlham College. Copyright © 1992, Peter Suber.
Self-Determination and Selfhood
in Recent Legal Cases
Peter Suber, Philosophy Department, Earlham College
When I first began writing about her, Nancy Cruzan was still alive. She had been in an irreversible coma for seven years, the victim of a car crash. She was being fed through an abdominal tube. No one had good evidence of what she would want in this situation. She was 25 at the time of her accident and left no living will. She once told a friend that she would not want to live unless she could "live at least halfway normally". The medical name for her condition a "persistent vegetative state" vividly expresses both deterioration and hopelessness.
We could treat Nancy Cruzan as just another creature in a persistent vegetative state, an affront to medical science, a financial or experimental opportunity, a textbook case, or a person dying. She is all of these things. But she is also, simply, a person. How do we treat her as a person? The most important decision we must make for her is whether or not to remove her feeding tube and let her die. What would we do if we wanted to treat her as a person, and not merely as a medical lost cause? Do we inquire more deeply into the stray comments she made to her friends about living off a machine? The court did do this, but the inquiry came up dry.
Do we presume that she is like us, and ask what we would want? One reason not to do this is that it would turn her into us, or into whoever is making the decision. This is an insidious form of majoritarian tyranny that would prevent anyone from being interestingly different from those with power.
Do we decide that life is always better than death, regardless of what she or we would want? One problem with this position is that it may be false. But if it is true, and we feel impelled to prolong her life against her will, supposing we knew her will, then we raise our ultimate question again. Is this really how to treat her as a person? Wouldn't we then be treating her as a medical challenge? As a condition to be conquered by an offended science? If we should always prolong life regardless of a person's desires, then it wouldn't matter that we were dealing with Nancy Cruzan. We could be dealing with a generic dying human who has no biography, no desires, no interests, no social filaments, no situatedness, no context. We could be playing a video game based on the data in her chart. That does not seem the way to treat her as a person.
The one thing we cannot do is to leave the decision up to her, which is how we usually show our respect for a person. Like it or not, whether we remove her feeding tube or not, we will be making the decision for her. We cannot respect her by following her choice, because she cannot make one. And we cannot respect her by refusing to be her proxy or to usurp her decision-making authority, for to step back and do nothing is also to make a decision.
In July 1990, the U.S. Supreme Court heard the Cruzan case and decided (in a 5-4 decision written by Rehnquist) that citizens do have a right to refuse medical treatment, even if that means death. However, the court also said that the states may take precautions to make sure that the decision to refuse treatment, and to hasten death, is truly the wish of the patient. Unfortunately, Nancy Cruzan lived in Missouri where the standard of proof is high: her family had to show with clear and convincing evidence that Nancy would have wanted to die. At the first judicial hearing on her parents' petition to remove the feeding tube, all sides admitted that this high standard was not met in her case. So she did not have a right to die.
After the Supreme Court decision was handed down, Nancy's parents found two more of her friends willing to testify that Nancy would not have wanted to live on a machine. On December 14, 1990, the original Missouri judge ruled in light of the new evidence that Nancy's feeding tube could be removed. Twelve days later she was dead of starvation and dehydration.
I think the courts[Note 1] were roughly right in this case. If we can, we show our respect for the patient as a person by letting her make the decision. Since we cannot do that here, the next best thing is to discover what she would have wanted. If we are uncomfortable with the case it is because there is such slim evidence for deciding what she would have wanted, when the stakes are high. We don't want to overinterpret the scanty evidence for the same reason that we don't want to turn the decision over to a proxy like her family or the state: on both courses we risk violating Nancy's right to self-determination. In the one case her fate would be determined by our semi-fictitious construction of her desires, and in the other case by people with their own interests and their own conceptions of her interests. The courts were right to try to find a way to enforce Nancy's own self-determination; the case was hard only because that task was hard.
Janet Adkins was 54 years old when she learned that she had Alzheimer's disease. She knew that the disease would slowly lead her to lose her competency a prospect she detested. If she wanted to kill herself when life became detestable, she would either be physically or mentally incapable of doing so. Knowing this, she decided to kill herself while still of sound mind and body. She saw a physician named Jack Kevorkian display his suicide machine on the Donahue show, and contacted him. With her husband's reluctant support, she traveled from Oregon to Michigan to use Kevorkian's machine. In the back of Volkswagen bus, parked at a public campground, Kevorkian hooked her up to a heart monitor and IV. When she was ready, she pushed a button on the IV rack, which began the flow of a painkiller into her veins. After one minute, a timer automatically switched from the painkiller to potassium chloride, and in five minutes she was dead.
Her case was instantly controversial, but no one suggested that she was not of sound mind when she made her decision or that Kevorkian had induced her to use his machine. In Michigan, assisted suicide is not illegal, as it is in many other states. After the initial brouhaha, it looked as if the case would fade into oblivion. Indeed, if Adkins was competent and Kevorkian blameless, then that ought to be the end of it. But six months later, in December of 1990, a prosecutor decided to indict Kevorkian for murder, and a judge issued a temporary restraining order barring Kevorkian from using his suicide machine with any other clients. After a week, however, the charges were dismissed. Sensibilities had been troubled, but no law had been broken.
In both these cases, the women were allowed to follow their desires even though others strongly believed that what they desired was not only wrong, but sinful. These cases were victories for self-determination. I wish this principle were applied more uniformly by courts, but in fact it is far from the law of the land in other domains. In 1986 Michael Hardwick went to a Georgia court, announced that he was a homosexual, and asked the court to declare that Georgia's criminal prohibition of sodomy was unconstitutional. He had recently been arrested for committing sodomy; although the charges had been dropped, he worried that he might be arrested again. The Georgia court refused to overturn the statute; the U.S. Supreme Court also refused, emphatically upholding the right of the states to criminalize sodomy both for homosexuals and heterosexuals (Bowers v. Hardwick). What Hardwick wanted to do, and what Georgia wanted to prohibit, could not be classified as rape, exploitation of minors, or public indecency, since it involved only consenting adults in private. In the opinion, Justice Byron White was explicit that the constitution does not recognize a privacy right to do whatever we please with other consenting adults in private. In short, self-determination is legally denied to homosexuals, but is becoming the standard of decision for medical patients.
What is self-determination? At first sight, the answer is easy: it is to make decisions for oneself. As opposed to what? As opposed to letting your next of kin, or the state legislature, or a federal judge, make those decisions for you.
For all acts? We don't let individuals decide for themselves whether to commit fraud, rape, battery, or murder. The reason is that these acts not only affect other people, but harm them. We limit self-determination, then, by what philosophers call "the harm principle" the principle that preventing harm to others outweighs individual liberty.
Self-determination is an important concept because without it we cannot explain what is wrong with fraud, rape, battery, and murder. But with it we can: these acts violate the self-determination of the victim. It follows immediately that we contradict ourselves if in the name of self-determination we let a person follow her own desires to the point of injuring others, or to the point of violating their self-determination. So the harm principle is built in to self-determination itself: we should allow individuals to determine their own fates except when to do so would interfere with the self-determination of others.
Here things get complicated and controversial. Can we ever determine our own fates without interfering with the self-determination of others? Are we atoms whose self-determination can ever be an independent variable? Or are we deeply dependent on each other so that each of our decisions implicates the fates of other people?
We are really asking about the nature of the "self" in self-determination. On one model, a person is a coherent self with settled, or at least discoverable, desires and interests. Self-determination is the liberty to follow those desires and interests. When one is incompetent, like Nancy Cruzan, others should try to discover one's native desires and interests without guesswork or presumptions. When one's desires or interests come from outside oneself, we may talk about manipulation, oppression, colonization, indoctrination, ideological distortion, or false consciousness.
On another model of the self, a person is a continually changing product of socialization. There is a self, but it is more a node in a network of relations than an atom essentially separate and separable from others. Hence, the concept of "native desires and interests" loses its significance on this model. People should be allowed to follow their desires and interests, if they don't harm others; but if we look closely we will find that these desires and interests arose from socialization, learning, cultivation, and nurturance. Or they may have arisen from manipulation and indoctrination. The point is that we will never find a case of desires arising from something called the "self" that cannot be traced further to the historical environment that constituted that self.
Let me call the first of these the individualistic or atomic model of the self, and the second the social or relational model of the self. The models matter for ethics because they affect what self-determination can be. On the individualistic model, self-determination is usually called autonomy, by Immanuel Kant and Lawrence Kohlberg, for example. 'Autonomy' is a good word for it; the word comes from auto- and nomos, meaning self-law or self-rule. Kant sometimes calls it self-legislation. On this model there is a source of guidance that does not in any sense come from history or socialization; Kant calls it reason. To act on any prompting other than reason is to be heteronomous or unfree. (Heteronomy is the proper opposite of autonomy, to take one's rule from outside, to be enslaved.)
For the social or relational theory of the self, there is no such thing as an internal source of guidance that was not constituted by external relations. There may be such a thing as 'reason' but it would be defined very differently from the way Kant defined it. For clarity, I will reserve the word 'autonomy' for the kind of self-determination possible on the atomic theory.
Both models agree that it is wrong to commit fraud, rape, battery, and murder. For the individualistic model, these crimes violate an inherent human dignity; for the social model, they violate an acquired or nurtured human character. Both agree, therefore, that a concept like self-determination is needed to explain the wrongfulness of these crimes. Both agree that it is generally wrong to push people around, to coerce them against their will. They disagree on the ultimate provenance of that will. To recap, for one it is an individual and independent source of preferences; for the other it is a product of social relationships. This will does not disappear into social relationships; the proof is that we can desire what our neighbors do not desire. This limited, eventual independence of the will allows both models to agree that self-determination is even possible. Therefore both models can talk about what is voluntary and involuntary; both can distinguish what we choose from what is determined by indoctrination, procured through fraud, cramped by convention, guessed at by other people, imposed by benevolent busybodies, or dictated by law.
From this point of view, the morally striking difference between these cases is that we know very little about what Nancy Cruzan herself wanted, but we know what Janet Adkins' herself wanted as well as we are likely to know it for anyone who dies without being interviewed by a panel of court-appointed psychologists.
In neither case do we ask where the self's own choices came from. On the individualistic model, they may have come from a transcendental reason; on the social model, from internalized cultural norms inflected by experience. If we can trace them to a self, even if we can trace them further, then we have found a reason to respect them.
In both the Cruzan and Adkins cases, the women had no financial dependents. While their deaths would cause grief and mourning, they would not harm others in a way that would trigger the harm principle. So if we were to force them to live against their wills, again, supposing we knew Nancy Cruzan's will, it would not be to prevent harm to others such as dependents. It would strictly be for their own sakes for example, to help them live longer. This was the motive of Operation Rescue when it stormed the hospice in Missouri (December 1990) to reattach Nancy Cruzan's feeding tube after the court decided it could be removed. For Operation Rescue, life is more important than self-determination; for the courts who heard these cases, self-determination can be more important than life.
The reason the courts were right is that, if we forbid others to follow their own lights when no harm is done, as in the Hardwick case, then we treat them as inferiors entitled to fewer freedoms than ourselves a violation of both their liberty and equality. Self-determination is at the heart of one's dignity much more than the mechanical perpetuation of vital signs.
If we want to respect the choices that other people make for themselves, we can be held back by our ignorance, as we were in Nancy Cruzan's case. But we can also be tormented by evidence that a person's choices are not his or her own.
Dax Cowart was burned over his entire body in a propane gas explosion. As he lay on the ground where he had been thrown by the explosion, he begged a nearby farmer to kill him. In the ambulance on the way to the hospital he begged the paramedics to kill him. In the hospital, he tried to throw himself out a window, but was caught. He protested his excruciating burn treatment every day for over a year. How do we treat Dax Cowart as a person? He was perfectly able to make decisions before the explosion, and after the explosion the only difference was that he lived in continual, agonizing pain. Do we decide that the pain rendered his judgment incompetent? Dax Cowart's physicians thought so; they were sure that after he healed, he would be grateful for his treatment. He is not. His injury and treatment occurred 17 years ago, and he is still enraged, insisting that he should have been allowed to die. He is also angry at the way his doctors put him in a double bind. When he was in agony, they said his wish to die was his pain talking. When they injected him with pain killers, they said it was the drugs talking.
This is infuriating, but might it be true? We don't want to make a mistake and let someone die because they say they desire it when they do not truly desire it. (This is the reason why Missouri had a high evidentiary standard in the Cruzan case.) Here our two models of the self reappear. On the atomic theory, heteronomous or unfree choices abound; there is no presumption in their favor as there is for autonomous choices. For example, an addict's decision to take another hit is probably not a free decision; a rape or robbery victim's decision to submit rather than die is not a free decision. On this model it is certainly possible that Dax Cowart never freely decided to die.
On the social model, things are trickier. What would it mean to say that a person apparently desired something but did not truly desire it? There may well be layers to the self, like layers to an onion, on both models. But if one's selfhood is continually taking shape from social influences, then we cannot firmly distinguish what one truly desires from what one has been cultivated to desire. This is disturbing for moral theory: we cannot firmly distinguish the nurturance that constitutes the self from coercion and manipulation. This doesn't falsify the social theory of the self; it only implies that ethics will be difficult. It is not even an argument against the social theory, for we have good evidence that ethics is difficult. When we think a person's choices are not freely decided, we may be tempted to act in a way that advances their interests even if it violates their will. Violating their will under those circumstances, we might say to ourselves, is not an injury, since it is not the authentic will of the person that we are overriding. So Dax Cowart's doctors overrode his dissent in order to treat his burns, thinking his dissent was inauthentic, or false, or incompetent. Similarly, we don't let children play with matches, even if they want to. We try to sober up our drunk friends before they get married or join the army. The law of every state including Nevada imposes a cooling-off period for divorce. Even calm, sensible adults are prohibited in most states from swimming at a beach without a lifeguard, buying a scalped ticket, or borrowing money without knowing the true rate of interest. The law presumes that when these rules thwart our desires, then we do not know our own interests clearly or are unable to act on them freely.
To limit people's liberty in this way is usually called paternalism, since it treats others like children. "Paternalism" comes from pater, father. Paternalism may be offensive, but it is not patriarchal; if you like, call it "maternalism" or "parentalism". Most people find paternalism over young children to be justified; over competent adults repugnant; and over older children and retarded or incapacitated adults severely problematic. The reason is that we value self-determination. Competent adults are clearly the kinds of selves that can determine their own fates, at least most of the time; incompetent adults and older children sometimes are and sometimes are not; and very young children are not. Self-determination and paternalism exclude each other; or from another point of view, they go together like figure and ground, jointly covering the entire range of human self-definition and competency. If we respect people in following their own decisions, we uphold self-determination; if we do not, we treat them paternalistically.
Take the case of Rebecca Bell, the 17 year-old woman from Indianapolis. She became pregnant in 1988, when Indiana did not permit minors to obtain an abortion without notifying their parents. Unlike many other girls in her situation, she was close to her parents, but not close enough to tell them she was pregnant and wanted an abortion. She was also afraid to go to court for permission not to notify her parents, the only other option provided by Indiana law. Instead, she tried a self-abortion, and died of an infection a few days later. Since then, her parents have criss-crossed the country campaigning to repeal the parental-notification laws on the books in most states. (They brought their appeal to Earlham in February 1991.)
The Supreme Court had long since ruled that parental consent to a minor's abortion cannot be required (Planned Parenthood v. Danforth, 1976). But it did not rule on parental notification requirements until June of 1990, eight months after Becky Bell died (Hodgson v. Minnesota). When it did rule, it upheld the kind of law in effect in Indiana in 1988. Pregnant minors must either notify their parents before obtaining an abortion or get a judge's permission not to notify them.
While in many respects the Supreme Court is the last bastion of American individualism, here it seems more moved by the social theory of the self. Women beyond the age of majority need not notify anyone to get an abortion, but minors must notify their parents. One way to explain the discrepancy is that minors are still being constituted by socialization; none of their decisions, or at least not the abortion decision, is yet free or truly their own. But if this were true, then they would have to get their parents' consent, not merely notify them; but the Court already decided that parental consent was unnecessary.
By striking down the parental consent laws, and upholding the parental notification laws, the Court was apparently thinking that the consent laws violated a woman's self-determination but that the notification laws did not. In fact there is some evidence that the Court thought that notifying her parents would enhance a woman's self-determination by allowing her difficult decision to be enriched with the compassionate advice of her parents. I think the Court tragically indulged a romantic notion of family life here, and that Becky Bell's case proves it. The parental notification requirement compromises self-determination as much as the parental consent requirements. For minors who depend on their parents, notification amounts to consent, since the girl cannot notify her parents and then leave home to pursue her own life and escape their influence should they strongly disapprove her decision. For parents who would support their child's decision even when they disapproved it, parental notification is harmless; but to suppose that all parents would do so, or that when they do not, pregnant minors can still live independently, is wishful thinking. Therefore I think upholding of the parental notification laws was a defeat for self-determination.
To me the hardest aspect of the consent and notification cases is to decide when an incompetent child becomes a competent adult. Was Becky Bell closer to the adult end of the scale or to the child end? As long as children are incompetent, or very young, some parental or legal constraint is justified, provided the constraints are compatible with their growth and rights. Becky Bell was 17. This fact makes her case easy to decide for many of us. What if she were 13?
(Of course, abortion is a peculiar subject for paternalism. If a young girl is too young to be granted self-determination, then she might be incompetent in a legal sense and ineligible to make all the important decisions that affect her. But that is hardly a reason to deny her an abortion, since for the same reason, she would be unable to bear or raise a child and should not be made to endure it.)
In fact, the problem of children is a good reason to begin to reconsider the atomic theory of the self and to move toward the social theory. On the atomic theory, children who deserve paternalism at one age, and not soon after, must have suddenly developed the "self" that can harbor mature, competent, or self-determining decisions. This is implausible. The fact that we sometimes use sharp age cutoffs, e.g. for driving, drinking, and voting, does not mean we believe that a qualitative change occurs suddenly at or near the age of the cutoff. It only means that we don't want to cope with the developmental continuum. Even if it is wise to act on the fiction of a sudden qualitative change at, say, age 18, and to embroider this fiction with ritual, it would not follow that selves really were atomic. And even if there are advantages to the fiction that selves are atomic, we should admit to ourselves that it is a fiction.
The social theory, on the other hand, starts with the developmental continuum. It holds that eventually there is something called a "self" that can harbor self-determining decisions, but that there are nothing but gradations of gray between zero and that eventuality. If it follows that there is no sharp end to justified paternalism, and no sharp beginning to self-determination, then so be it; life is hard, ethics is hard.
How do we respect the autonomy of parents who make decisions for infant children? How do we respect the rights of children who are not nearly as old as Becky Bell, whose freedom is limited by the paternalism of her parents? We let parents make many decisions without state interference, such as what religion to teach their children. But we draw the line at what we call "child abuse" even though that it is a difficult category to define.
The state of Massachusetts took two years to decide that what David and Ginger Twitchell did to their daughter constituted child abuse, and to indict them for it. The Twitchells were Christian Scientists who tried prayer, and only prayer, to heal their two and one-half year old daughter, Robyn, of an obstructed bowel. The prayers did not work and Robyn died of her bowel obstruction, which orthodox medicine could easily have removed.
The Faith Assembly a religious sect, headquartered in Indiana, also forbids the use of doctors. According to the Fort Wayne News-Sentinel, 43 children of church parents died in the late 70's and early 80's because they were not treated by doctors. In 1981, for example, a one-year-old girl was burned by a spilled cup of hot tea. No one treated her burns, and when they became infected she died in two days. Shortly after, a newborn boy in another Faith Assembly family died of pneumonia when $5 worth of antibiotics could have saved his life, according to the County Coroner of Whitley County.
As a result of these and similar cases, Indiana adopted a statute saying, in effect, that religious belief will no longer be accepted as a defense to child abuse. I think this too is a victory for self-determination. The new statute does compromise the liberty of parents, but only the liberty to harm their children. It is analogous to the first laws to prohibit husbands from raping their wives. A traditional liberty had been removed, but only the liberty to injure another. It is a victory for self-determination when it is understood fully, as including the harm principle in itself. It is also a victory for self-determination when wives and children are recognized to have rights that limit the discretionary actions of husbands and parents.
The law nationwide is moving in the direction of seeing children as persons in their own right, not merely as future persons still invisible within their parents' zone of privacy. The privacy right that protects parents from state intervention in the practice of their religion formerly covered their immediate family; their fundamental right to order their own lives extended to the right to order the lives of their children; now it does not. I'm sure the Twitchells would have been acquitted 20 years ago, if even indicted; in 1990 they were convicted.
While the Faith Assembly provoked Indiana to become a leader in this movement, Indiana is also one of the first states to allow parents to refuse surgery for their newborn children with birth defects. In 1982 a couple won the right to refuse all medical care, and even nutriment, for their newborn with Down's syndrome. It took the child six days to starve to death. Nurses had to put the child in an incubator so they couldn't hear her crying.
Clearly we are still troubled by the question when parents have a right to make decisions for their children and when their decisions can violate their children's rights. The reason is that we want to recognize rights in children long before they become the kinds of "selves" that fully developed adults are. But how soon, and what rights?
Johnson Controls is battery manufacturer that uses lead on its assembly line. It knows that women exposed to lead are much more likely than other women to give birth to children with genetic defects. Its response to this situation was to ban fertile women from its assembly line. Only women who could prove they were sterile could work there. Lead affects male reproduction in similar ways, but fertile men were not excluded from work on the assembly line.
This is a hard case because the heightened risk of birth defects is real and the discrimination against fertile women is also real. But it is not a hard case for the ethics of self-determination. Fertile women have self-determination rights, and when their decision doesn't harm another, then their liberty should be respected. If they know the risks and still want to work on that line, that is their choice.
Is there harm to another, though, in the likelihood of birth defects? In a sense there is, but not all fertile women will have children, and not all those at risk who do have children will have children with birth defects. To limit the freedom of this large class of women to get at the genetic defects in a small subset is a clear case of "overbreadth" unnecessarily limiting liberty to prevent harm. But even for the small subset of women, if the future birth of a child with genetic defects were considered a "harm" to the child that could negate a woman's self-determination, there would certainly be no right to abortion either.
What Johnson Controls wants is immunity from lawsuits brought by women who give birth to children with defects. I think it should get this immunity, since part of a woman's decision to take the risk of working with lead is to accept the responsibility for it. However, women who sign a waiver incompetently, because the fine print is legal jabber, or who were uneducated to the risks of lead, or were coerced to sign by poverty, limited job skills, or recession, are not bound by it. If Johnson Controls wants more than immunity from lawsuits, if it wants to save the next generation of children at the expense of the liberty of their mothers, then it has no right to it.
Fertile women wishing to work on the battery assembly line sued Johnson Controls for sex discrimination. The women lost in both the district and circuit courts. But March of 1991 they won a unanimous reversal in the Supreme Court. This was a victory for self-determination.
The analysis of these issues that puts the concept of self-determination at the center of attention first appeared in John Stuart's Mill book, On Liberty, published in 1859. For Mill we should always respect the free decisions of competent adults, unless they harm someone who does not consent. In practice, this means that Mill would let competent adults decide for themselves whether to receive medical care, engage in homosexual sex, ride a motorcycle without a helmet, play poker for money with one's friends on Saturday night in one's living room, take extract of apricot pits (laetrile) instead of chemotherapy for leukemia, read Salman Rushdie's Satanic Verses, or burn a flag provided it was their own flag. In their self-regarding acts, those acts that do not harm unconsenting others, individuals should be left to their freedom; to try to control them is tyranny.
This doctrine is compatible with concerned counsel, advice, discussion, and reasoning. For Mill, persuasion can almost always be distinguished from coercion, and short of coercion it is always permissible. So we need not watch helplessly as our friends make self-regarding decisions that we think are stupid, dangerous, unhealthy, or immoral. But if the decision is truly self-regarding, then we may show our concern only through discussion with our friend, not through coercion. Mill's doctrine is also compatible with the usual legal penalties for murder, rape, battery, theft, and fraud, since these acts harm others without their consent.
Mill would respect the decision of Janet Adkins to die. He would respect the decision of Dax Cowart to die, if he concluded that he was competent. He would want to discover the decision that Nancy Cruzan would have made so that he could respect it.
Mill would probably respect Becky Bell's decision to have an abortion. It's a little unclear because at one place he says that over her own body, the individual is sovereign a stronger statement than any to be found in Roe v. Wade. But on the other, he said that procreation is not a self-regarding act.
He would certainly not allow the Twitchells to imperil their daughter. To accept the risks of Christian Science for themselves is a self-regarding act that Mill would protect from any state interference. But to impose those risks on Robyn, who does not consent, is another kind of tyranny that is not at all protected. Just as certainly, he would reject the Johnson Controls argument that fertile women must be coerced for the good of their potential offspring. As long as there are no actual offspring to protect, we have the weighty interests of competent adult women in one pan of the scale and nothing in the other.
To say that we should respect a person's self-determination unless it violates the self-determination of others is a good summary of Mill's position. For many people, this position is the common sense of the matter. He explains our hatred of tyranny, whether it is represented in the form of coercive public law banning books or consensual sex acts or in the form of coercive public opinion suppressing and stigmatizing whatever is not 'politically correct' (and more recently, whatever is). Even those who disagree with Mill on how a particular case should come out find it convenient to adopt his position and amend it rather than reject his entire position. In the philosophical literature, Mill is the background against which all contemporary discussion of these issues proceeds.
Mill unrelentingly condemns paternalism for competent adults. He implies but does not work out a complementary theory of selfhood. If he had worked it out, it would be an atomic theory, since he is clear that the locus of moral interest is a metaphysical individual, not an intersection of social relationships. To use Carol Gilligan's terms, Mill conceives development as separation; children grow up and apart, from dependence to independence. Paternalism is warranted when children are dependent, not warranted when they are independent. In my view this is the weakest side of his position. Gilligan has persuaded me that this model of development is either false for half the human race, or false for all of it.
How does this weakness show up in practice? To see, let's go back to Mill's position that to respect people's dignity has a lot to do with respecting their autonomy, that is, letting them make their own choices. But this means to let them make their own mistakes. But this means that we must permit self-harming decisions. Here is where autonomy has a cost. When we let people do what they want, even when they do not harm others, they may harm themselves. To respect autonomy is to permit harm that we could prevent. Mill says that coercion is always worse than any self-harm that a competent adult would commit against advice. I don't know whether it's always worse, and Mill never offers an argument for this important premise. But at least there is a conflict of values here. It's not hard to imagine a person who shows her love for you by protecting you from harm, rather than by respecting your freedom.
It's not hard to imagine a person who hates tyranny as much as Mill, but who also hates to see people harm themselves unnecessarily. Against Mill's notion that our duty is to let people take risks and suffer the consequences, many feminists argue that we have a complementary duty to involve ourselves. For Mill coercion is the primary evil; for many feminists it must share the honor with alienation and disconnection, detachment, abstraction, loneliness, isolation, and excuses to avoid benevolent assistance. Diana Meyers wants to infuse respect for another's freedom with what she calls "concerned involvement."[Note 2] If selfhood is socially defined, many people recognize a duty to take some responsibility for the selves emerging around them, not always to respect their choices as if they were strictly autonomous.
This objection takes many forms, not all of which are equally applicable to Mill. We can agree that any theory of autonomy would be objectionable (1) if it made "reason" or "rationality" a supernatural source of objectivity and causation apart from the body; (2) if it relied on rules, as opposed to the taking of responsibility; (3) if it treated people as abstract units with rights and duties, rather than as persons with all their particularities and uniquenesses; (4) if it demanded that everyone always put their own interest ahead of the interests of others; or (5) if it held that simple non-interference with others were the all-sufficient maxim of an ethical life. Kant and Kohlberg have held one or more of these views. Mill may have too, but I would argue from the text for quite a while before admitting it.
Another line of attack is to point out that autonomy ethics is done badly in our society. To do it right, we should respect the autonomy of all people equally, but the record shows that we do not.
For example, Steven Miles and Allison August studied cases like those of Nancy Cruzan, and reported their results in the summer of 1990 in the journal Law, Medicine and Health Care. In these cases incompetent patients who could not express their feelings were close to death. In each case family or physicians believed the patient wished to die rather than continue on life support. Miles and August studied the reasoning of courts in deciding whether to let the patients die. When the patient was a man, courts respected his decision 75% of the time; for women, the rate was only 14.3%. Statistically, gender was a more significant factor than the patient's age, medical condition, or treatment. As Miles and August interpret the language of the court opinions, judges regarded the men on life support as assaulted, and their preference for death as rational; they perceived women on life support as protected from neglect, and their preference for death as unreflective, emotional, and immature.[Note 3]
Until recently, when fetal surgery become more common, if doctors detected fetal distress in utero, there were only three options: the first was abortion, the second was to wait for birth and treat the newborn at that time, and the third was to accelerate birth by a Caesarean section. Sometimes the mother opposed the plan favored by the doctors. When that happened, the doctors would sometimes go to court for permission to override the woman's objection. According to a 1987 national survey[Note 4] of cases in which the physicians wanted a C-section and the mother did not, judges sided with physicians against women 86% of the time, in most cases (88%) granting the physician's request within six hours. Of the resulting, involuntary C-sections, 81% were performed on black, Asian, or Hispanic women.
These two studies show that respect for autonomy has been more commonly accorded to men than women, and among women, more often to white women than to black, Asian, or Hispanic women. Mill would find this shameful. He would feel no pressure to retract or qualify his position, only to insist that it is badly needed to remedy injustice. I think Mill would be right about this. When Gandhi was asked what he thought about western civilization, he said it would be a good idea. I think we can make the same reply to the question about autonomy ethics. It would be an improvement. It hasn't really been put into practice yet. For every Nancy Cruzan and Janet Adkins whose self-determination was respected, there is a Michael Hardwick or Becky Bell for whom it was not.
The real weakness in Mill's uncompromising press for autonomy is that, to be uncompromising, he must draw with false precision the distinction between your self and mine, and between competent and incompetent selves. For him paternalism is always unjustified for competent adults. But he does not recognize that the class of competent adults shades off gradually into the class of incompetent adults and children. When we are dealing with children we recognize our responsibility for their nurturance and development; this responsibility to others does not end in fact when they attain the age of majority even if it can then be shirked with impunity or applause.
These reflections do not justify paternalism, which is the opposite error. If I may adapt the words of Richard Sennett[Note 5] for my present purposes, there are two classical ways to treat someone as a person. Paternalism that treats others like children, or coerces them for their own good, is false love. Mill's anti-paternalism that stands back to permit self-harming decisions is respect without love. One position gives nurturing concern; the other gives respect; but neither shows true love.
While Mill encourages us to talk to our foolish friends, essentially we perform our duty to competent adults by leaving them alone. There are certainly times to leave people alone, but that is not the sum-total of ethical life. We can argue whether respect is better than love, if we can only have one of them. But because I think we can have both, I want to move on. Mill has articulated an important half-truth.
We cannot give up autonomy or self-determination, for then we will treat others as objects or machines. We will lose the ground for objecting to fraud, battery, rape, and murder. We will lose the way to respect the dignity of other persons. Moreover, without respect for autonomy, all benevolence is paternalistic, and therefore all love is false.
But neither should we, in the name of self-determination, spurn all "concerned involvement" that trespasses on another's zone of privacy and personal autonomy; for without paternalistic concern, all benevolence is loveless. We cannot give up paternalism without giving up our responsibilities to others. These responsibilities arise not only from the contingencies in which others are weak in the presence of our strength, but from the basic premises of the social model of selfhood. We define each other. If we try to abstain from affecting each other, then self-determination is itself in jeopardy, because selfhood will be in jeopardy. Paternalism is justified, in short, when and because it helps us grow into our self-determination. This is the justification of child-rearing, for example, and compulsory education.
So just as self-determination fully understood includes the harm principle, it also includes the responsibility to give shape to the selfhood of other persons by effective action. Fully understood in this way, it includes (1) the imperative to respect the freedom of others, (2) the imperative not to harm others by violating their self-determination, and not noticed by Mill (3) the imperative to maintain a continuing relationship of self-definition with others.
When we situate the achievement of self-determination in its context, and add to our respect for liberty the hard work of cultivating the selfhood and freedom of others and the environment in which it can be respected, then we have respect with love the best of both worlds. Individuals who grow up in that environment are structured by it, not cut loose from it; defined and created by it, not oppressed by it; loved but also liberated.
What does this contextually enriched view of autonomy ethics mean in actual cases? The answer is: not much, because it emphasizes how it is that people grow into freedom and responsibility, rather than whether some single exercise of choice is right or wrong. That means it gives guidance on how to live more than it gives guidance on how to decide cases. By the time a moral question becomes a legal case, it is a collision of values that lends itself more to win-lose legal logic than to contextually sensitive ethical action.
When we know that we can enhance someone's freedom by violating their will, then we may do so. This is easy in the case of the drunk who wants to drive home or the child who wants to drop out of school at age 12. But we can rarely be confident that our decisions are justified. If we had paternalized Janet Adkins, we would have spared her death only to leave her "free" to experience Alzheimer's disease. By paternalizing Becky Bell, the Court hoped to leave her "free" to bear a child at age 17. So while self-determination and caring are compatible, there will be perpetual tension in dealing with people on the borderline of self-determination. Unfortunately, what the social theory of the self shows is that there is no sharp borderline that one passes at age 18 or 21, but a border zone through which one passes continually as one develops throughout life. This is frustrating for Mill, who hoped to articulate a principle that would answer every difficult case. But it confirms the feminist way of complementing Mill, for it makes self-determination a supreme value without reducing it to a principle. On this path, life is hard, but we already knew that.
1. Congress agonized about the Cruzan case as well. Buried in the budget bill of 1990 was a requirement that all hospitals, hospices, and nursing homes receiving federal funds must inform adult patients of their right to make a living will and refuse medical care, even if that hastens their death. Virtually every hospital and nursing home in the country receives federal funds in the form of Medicare and Medicaid. The new law took effect in December of 1991. [Resume]
2. Diana T. Meyers, "The Socialized Individual and Individual Autonomy: An Intersection between Philosophy and Psychology," in Eva Feder Kittay and Diana T. Meyers (eds.), Women and Moral Theory, Rowman and Littlefield, 1987, p. 141. [Resume]
3. Steven H. Miles and Allison August, "Courts, Gender and 'The Right to Die'," Law, Medicine and Health Care, 18 (Spring-Summer, 1990) 85-95. (The paper was delivered at the Second International Conference on Health Law and Ethics in 1989 in London.) [Resume]
4. Veronica E.B. Kolder, Janet Gallagher, and Michael T. Parsons, "Court-Ordered Obstetrical Intervention," New England Journal of Medicine, 316, 19 (May 7, 1987) 1192-1196. [Resume]
5. Richard Sennett, Authority, Vintage Books, 1980, pp. 50, 84. [Resume]
Department of Philosophy,
Earlham College, Richmond, Indiana, 47374, U.S.A.
firstname.lastname@example.org. Copyright © 1992, Peter Suber.