April 26, 2013, by Neil Sinclair
Measles, Mill, Madoff
What can the state legitimately compel its citizens to do? This is not a question about the means of compulsion (e.g. criminal vs. civil law; incentives vs. penalties) but the question of whether such compulsion is ever justified.
There are good reasons to think not. One is that it is usually the individual who is in the best position to judge what is in their own best interest. Given this, even well-meaning state interventions may not improve citizens’ lives. A more powerful argument is that even if the state were reasonably sure that compulsion would be in the interests of the compelled, there is something valuable lost in the mere act of compulsion. Being forced to act in a certain way is not the same as responding rationally to the facts of the case. To compel, therefore, is to bypass distinctively human rational faculties, thereby neglecting one of the most important and distinctive human values.
But there are limits. It is of course appropriate for the state to compel someone to stop acting where that action is creating significant harm to others. It is in one way good that a fraudster like Bernie Madoff used his rational capacities to defraud investors of their life-savings. But it is legitimate for the state to compel him to stop given the harm he did. Such a line of thought is summed up in Mill’s famous Harm Principle: “…the only purpose for which power can rightly by exercised over any member of a civilized community, against his will, is to prevent harm to others.”
Mill is clear that this applies to inaction as much as action. Sometimes, as in Madoff’s case, actions result in harm to others. But sometimes not doing something can have the same result. Mill talks of “certain acts of individual beneficence, such as saving a fellow creature’s life.” (Some jurisdictions have laws that compel bystanders to come to the aid of those in peril, as famously featured in the final episode of Seinfeld).
Now consider the issue of compulsory vaccination and the recent Measles outbreak. Recently, a US expert called for the UK to follow the US in making vaccination mandatory. One justification for this might be that mandatory vaccinations are in the best interests of those being vaccinated. As the expert put it: “…we just don’t think it’s your inalienable right to catch…a potentially fatal infection.” This is the type of paternalistic justification that Mill would reject: “His own good, either physical or mental, is not sufficient warrant.” But another type of justification would find Mill’s support. The quote from the US expert, in full, reads: “In this country we just don’t think it’s your inalienable right to catch and transmit a potentially fatal infection.” Catching Measles is harmful to oneself, but transmitting it is harmful to others. This week BBC Four’s Today programme ran an item about a child undergoing chemotherapy, a treatment that makes the patient extremely vulnerable to infection. Given the Measles outbreak, the parents had taken the precaution of removing their child from school. This is harm in itself, but nothing compared to the harm of contracting measles.
From this perspective mandatory vaccinations may not be prying paternalism, but a legitimate attempt to prevent harm to others. The question that remains is whether the costs of imposing mandatory vaccinations would outweigh the benefits of the harms prevented. As Mill puts it: “As soon as…a person’s conduct affects prejudicially the interests of others, society has jurisdiction over it, and the question of whether the general welfare will…be promoted by interfering with it, becomes open to discussion.” Now might be a good time to start that discussion.
(References to Mill are from his essay On Liberty.)
– Neil Sinclair (neil.sinclair@nottingham.ac.uk)
Neil, should we not consider the fact that you cannot transmit measles to someone else who is already vaccinated against it? If only the people who wanted the vaccine had it(exercised through their own free choice) and those who didn’t want it were exempt from having it, then no one would be being compelled against their will and only those who were willing to contract it would be susceptible to it.
Wouldn’t this be a better balance between prevention and the exercise of indivuidual rights?
Hi Edward
Thanks for your comment – you raise a very interesting point. If adults refusing the vaccination were only taking action that risks harming themselves, there would be little to justify intervention. If they were only taking action that might harm themselves, and perhaps others that had also voluntarily refused the vaccination, then again there would be little to justify intervention. (One might say that by voluntarily refusing to be vaccinated you have chosen to be open to the risk of infection, i.e. that you have voluntarily decided that this harm to you should not justify intervention.)
The hard cases arise due to the fact that if an adult is not vaccinated, they risk passing the infection onto those who have not yet had the chance to voluntarily decide to be vaccinated, and to those who do wish to be protected, but for whom the vaccination is ineffective. The former group include children under 1 year old (in the UK, that’s when measels vaccinations are offered); the later include those undergoing chemotherapy. So by not being vaccinated you don’t just risk harm to those who are happy with that risk, you risk harm to those who have yet to decide whether to be exposed to that risk, and some who would rather not be exposed to that risk.
The issue here is complicated by the parent-child relationship. Should the liberty that extends over one’s own actions extend to the treatment of one’s children? The UK does require certain things of parents: that they educate their child, for example (see : http://www.gov.uk/school-attendance-absence/overview). For Mill, the basis of the harm principle is that it preserves something essential to a good life – namely the exercise of our rational capacities to guide action, or what he calls “individuality”. It follows that we do not have the liberty to do things that restrict that individuality (such as selling oneself into slavery). Mill thinks that parental oversight is actually one area where too much liberty is usually granted, and that parents should be forced to take actions that foster the development of individuality in their children. This includes education, and may also include taking reasonable steps to make sure they reach the age where they can make voluntarily choses (although what age that is, precisely, is notoriously tricky).
I believe that the parent/child relationship has nothing to do with this issue. I think that children are at greater risk of harm if they are given responsibility before they have the necessary education and maturity and sadly, other adults will abuse this situation for their own reasons. I think that the parent/child relationship is one that needs to be kept in tact. The issue here really is whether the state can force adults to take an action that they would not otherwise take. I think that this depends upon whether the demands to immunise stretches beyond national boundaries so that it is compulsory to do so across the globe. Otherwise, the argument of contagion fails because lots of people travel to countries with different laws. One way to address this problem would be to ban travelling beyond national boundaries but this seems unrealistic. Another final ‘solution’ might be to allow schools to make it a condition of entry that their children’ families are immunised which would create ‘safe havens’ however this then create the implications of the development of virus breeding schools. If the risk of creating an epidemic is high then a Machiavellian approach might be the only way to solve this situation by making people believe that they are making free decisions to vaccinate when they are not because it is not possible for everyone to agree. The issue then becomes one of measuring risk because if the government resorts to methods of deception too readily then people might become cynical and distrustful of any advice.
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