Some public health initiatives are such that they are initiated by one state but have significant consequences on another state. One clear example of this is genetically modified mosquitoes – in this case, it is difficult to contain mosquitoes within state boundaries, and they often crossover and affect the neighboring states. This intuitively seems just as wrong as my neighbor spilling garbage onto my lawn or having pesky tree branches invade my property. Rather than investigating specific instances of such public health initiatives, this essay will explore the ethical framework that can be applied generally to any such public health initiatives which have a propensity to affect those outside state borders. More precisely, this essay is driven by the following questions: When is it wrong to implement initiatives that are known to affect neighboring states? Why is it wrong? How can it be justified? And if the neighboring states do not agree to such initiatives, are there good reasons to proceed regardless? I frame the latter questions of overriding consent as one of paternalism, and I consider three avenues of justification: a contractarian justification, a rationality-based justification, and a free-rider justification. In addition, I raise issues with these forms of justifications, particularly focusing on their moral legitimacy. By and large, my aims are modest insofar as outlining a procedure for invasive public health initiatives. At most, my argument amounts to the need for states to consider the right type of justification before acting paternalistically towards another state; and, at the very least, it charges most public health initiatives (that have an impact on other states) as illegitimate and lacking the necessary moral grounding.

WHEN CROSSING BOUNDARIES GOES WRONG

Let us begin by discerning which cases of invasive initiatives (those that cross boundaries) are intuitively wrong. I will tease out these intuitions using familiar illustrations involving neighbors. First, consider the distinction between trivial and non-trivial cases. Imagine you have seasonal allergies and any exposure to pollen leaves you with a stuffy nose, watery eyes, and an annoying itch in the back of your throat. Now imagine your next door neighbor has a beautiful flower garden planted in front of her house that leaves pollen in the air to be blown into your yard and trigger your allergies whenever you step out of your house. Here, it would be silly to think that your neighbor did something morally wrong – it is much too trivial. Even when we think in terms of manners or social convention, it is hard to say that the neighbor has violated any norm or is being overtly inconsiderate. Now imagine this non-trivial scenario: your neighbor has a tree that has branches invading onto your property, and these branches happen to be covering your favorite tanning spot and leaving sticky sap all over your favorite chair. This might seem just as trivial, but here you might have legitimate grounds to dispute your neighbor – namely, the rights to your property. It seems your neighbor is violating your right to your property; in effect, your neighbor is doing something wrong. It seems one feature of the wrongness of invasive initiatives is that it is not trivial but is grounded in some norm (morality, law, etiquette, etc.).

Second, consider the distinction between boundary crossing initiatives that are harmful and boundary crossing initiatives that are beneficial. (This distinction is a bit more obvious, but it is worth clarifying in order to set up our next distinction.) There is a difference between coming onto your property to start a fire and coming onto your property to put out a fire. Interestingly, some might say that coming onto your property to put out the fire is also wrong in some ways because it is a case of trespassing and it also violates your property rights; conversely, others might say that a neighbor who sees the fire and does not assist in putting it out is doing something wrong. This leads to our next distinction.

Third, consider the distinction between intentional harm and merely foreseen harm. This is the classic doctrine of double effect, and it plays an important role in discerning which cases of boundary-crossing initiatives are wrong. Imagine that you see your neighbor’s house on fire and you know she is not home, and the only way to put the fire out is to climb in through her window. Incidentally, climbing into the window would also mean running through her garden and trampling her precious flowers (which would devastate her). In this scenario, you intend to put out the fire and you merely foresee the harm to her flowers. To get clear on this distinction, we can apply the counterfactual test: if the merely foreseen consequence were absent, could you still have the intended consequence? In our scenario, the answer is “Yes.”[1] If somehow the flowers were not trampled on our way to put out the fire, we would still be able to put the fire out. Some may then push the argument that you did nothing wrong in crossing over to your neighbor’s house to put out the fire, even if her flowers ended up being trampled. This reasoning can be used in the cases of boundary crossing public health initiatives.

Now let us get clear on how the parallel between the neighbor illustrations and the (boundary crossing) public health initiatives can be drawn. Note the moral reasoning: I intend a good (i.e. putting out a fire or improving public health) and I merely foresee the harm (i.e. flowers or risks associates with the public health initiative). Does this vindicate me from blame or wrongness? Not quite. There is an added violation of imposing a particular valuation onto the other party (i.e. the next door neighbor or the neighboring state). This valuation in the next door neighbor illustration is that putting out the fire was more important than the flowers; on the same note, in the boundary crossing public health initiative scenario, one state determines that the value of a particular public health initiative outweighs its risks, and it imposes this risk-benefit analysis onto the neighboring state. This imposition of value becomes a problem of paternalistic action.

Before moving forward, let me add one clarifying note. When thinking of (boundary crossing) public initiatives, I am assuming a symmetry here in the risk-benefit for one state and the transient risk-benefit for its neighboring state; that is, the risks and the benefits are prima facie the same. This bars any scenario or initiative where the risk-benefit changes when it enters another state – for instance, initiatives that are very beneficial and minimally risky for one state, but once crosses over to a neighboring state it becomes minimally beneficial and very. I think we can reasonably say that these cases are wrong, or at least we can put these sorts of cases to the side and focus on the cases where the risk-benefit stay constant between states.

WHAT IS PATERNALISM

How exactly is one state acting paternalistically with their boundary crossing public health initiative? Well, underlying the public health initiative is a particular risk-benefit analysis, and the risk-benefit analysis is inevitably value-laden. Simply put, the idea is that when we think of “benefit” we have an underlying assumption of what “good” is (e.g. health, wealth, happiness…); conversely, when we think of risk, we have an underlying assumption of what “bad” things to avoid (e.g. death, poverty, pain…). With that in mind, one state might conduct their risk-benefit analysis with one idea of good and bad, and another state might conduct their risk-benefit analysis with an entirely different idea of good and bad. To push one’s risk-benefit analysis onto another is where one is pressed with the charge of paternalism.

Let us now get clear on what we mean by “paternalism.” Jonathan Quong provides a useful survey of the literature on how to define paternalism before suggesting his own account. 

The first, he calls, the “liberty-limiting definition.” (Quong, 2011, p. 74) It suggests that paternalism is the interference of a person’s freedom with the justification making some reference to the paternalized person’s well-being, good, happiness, and so on. Quong suggests the issue with this definition of paternalism with a number of illustrations that seem to undermine this definition. For instance, a father incentivizing his daughter to practice the piano with money for a movie ticket – in this case, Quong writes, “It seems clear the father is acting paternalistically, although he is not restricting her freedom.” (Quong, 2011, p. 76) Similarly, having my girlfriend, who is dubious that I would finish the conference paper instead of watching the football game, offer to take me to my favorite resturaunt if I completed my paper; or, a mother lying about her son’s dead iguana to spare his feelings; or, not loaning you money because I suspect you will use it to fuel your drug habit. (Quong, 2011, p. 76) All of these cases seem to be cases of paternalism, yet they are not captured by the liberty-limiting definition. 

The second, the “preference-based definition,” says paternalism is any actions which aims at improving somebody’s “welfare, good, happiness, needs, interests, or values” against their “minimally rational wishes.” (Quong, 2011, p. 77) This differs from the liberty-limiting definition because the liberty-limiting definition focuses on “a particular method of overriding someone’s beliefs about his or her interests,” but the preference-based definition is defined by the general feature of overriding another’s views rather than focusing on a particular method. Quong points to the issue with the preference-based definition being that “the definition cannot refer merely to the already expressed opinions of the paternalized agent.” (Quong, 2011, p. 77) In the example of the father incentivizing his daughter’s piano playing, we might say that the father is not acting against the “expressed opinions” of the daughter since she had not made a decision yet. This definition cannot capture counterfactual preference, or what the daughter would have preferred if it were not for the father’s paternalistic actions. 

The third, the “choice-improving definition,” defines paternalism as an action that “attempts to influence the choice of the affected parties in a way that will make them better off.” (Quong, 2011, p. 78) The example used here is a lunch counter that can have health foods earlier in the queue and unhealthy foods later in the queue, and vice versa. The layout of the food will inevitably influence people’s choice of healthy or unhealthy lunches. Quong’s issue with this definition is that it is too broad. Quong suggests that even telling your friend about their favorite movie marathon, knowing that they have other work to do, and trying to increase their range of choices would count as paternalistic on this definition. (Quong, 2011, p. 79)

The fourth, the “moralized definition,” attributed to Bernard Gert and Charles Culver, takes paternalism to be a violation of a moral rule, “such as coercion, deception, or harm, and we do in order to benefit the person we are coercing, deceiving, or harming.” (Quong, 2011, p. 79-80) Quong’s issue with this definition is that it fails to capture intuitive cases of paternalism. The father incentivizing his daughter’s piano practice is clearly paternalistic, but it does not break any moral rules.

The fifth, the “autonomy-intrusion definition,” a model offered by Seana Valentine Shiffrin, states that paternalistic action (1) interferes with a person’s “legitimate sphere of agency,” (2) substitutes judgement, (3) acts in a person’s interest which they have legitimate control over, and (4) acts on the grounds that the person’s judgement is inferior. (Quong, 2011, p. 80) Quong notes that the term “legitimate” is too ambiguous to ground the definition, and however that term is construed ends with either a definition of paternalism that is too inclusive or not inclusive enough. (Quong, 2011, p. 80-81)

Quong then offers his own definition of paternalism, which he calls the “judgmental definition,” and it is formulized as such: “[1] Agent A attempts to improve the welfare, good, happiness, needs, interests, or values of agent B with regard to a particular decision or situation that B faces […] [2] A’s act is motivated by a negative judgement about B’s ability (assuming B has the relevant information) to make the right decision or manage the particular situation in a way that will effectively advance B’s welfare, good, happiness, needs, interests, or values.”[2] (Quong, 2011, p. 81) The paternalizer’s negative judgement about the paternalizee’s abilities refers to the “necessary levels of rationality, or willpower, or emotional welfare.” (Quong, 2011, p. 83) This formulation seems to have the right scope to capture all of our intuitive cases of paternalism without any of the drawbacks.

It is important that we end up with Quong’s definition of paternalism and not any of the alternatives because it is particularly relevant when thinking of paternalism between states. Typically, paternalism is thought of as relational between persons, or between a state and persons; however, in the context of one state’s initiatives crossing into another state’s borders, the relation is between two states. Remember that the relevant “negative judgment” in this case is the value judgments underlying the risk-benefit analysis of a particular public health initiative. It is important to note that the wrongness of paternalism is not from encroaching onto another state’s territory without permission, but it is from the assertion of a particular set of values that underlie the cost-benefit analysis of the boundary crossing initiative. It is like somebody playing heavy metal music on the subway thinking that all the other passengers will enjoy this genre of music; that is, just as not everybody would enjoy listening to heavy metal music, not every state would agree to the goodness (or the goodness outweighing the badness) of a particular public health initiative. This sort of paternalistic action seems prima facie wrong; or, at the very least, it requires some added justification if it is to be permissible.

JUSTIFICATION

Michael Blake notes the difficulties of paternalism between one state and another state arises because “the political and legal institutions we share at the national level create a need for distinct forms of justification.” (Blake, 2001, p. 258) We cannot appeal to justifications that apply in one state and apply them to another; in fact, the differing values and commitments are the very root of the problem. It is a contingent fact and sometimes pure happenstance that one state adheres to the same particular principles as their neighboring state, and only in these cases could the states come to some sort of shared justificatory standard. Even liberal principles come in a variety of flavors, and the particular species of liberalism apply “only within the context of the territorial state.” (Blake, 2001, p. 257) He continues, “In the international arena, by contrast, no institution comparable to the state exists.“ (Blake, 2001, p. 265) So, we return to the question: “What sorts of considerations could justify what would otherwise be an impermissible violation of [state] autonomy?” (Blake, 2001, p. 273) 

Blake’s suggestion takes the loose form of a contractarian theory. One strategy might be to find a cosmopolitan outlook and find some impartial principle that would apply universally across state borders. An approach to executing this strategy (which he refers to as the “noninstitutional theory) is by “abstracting away from the institutions we currently have, and asking what sorts of institutions we would endorse if we were starting from scratch.” (Blake, 2001, p. 261) Here, he echoes John Rawls and Thomas Scanlon in establishing principles everybody can find reasonable accept or principles that one cannot “reasonably reject.” (Blake, 2001, p. 274) This modeling of rational consent, Blake argues, “will allow us to understand what sorts of coercion might be justifiable.” (Blake, 2001, p. 274) This is one plausible way of justifying coercive action.

We might, however, approach justifications in ways that override consent, which seems to give the wrongness of coercion more bite. There is a difference between implementing some paternalistic action without having explicit consent, and implemental some paternalistic action despite an explicit refusal. Acting without explicit consent seems to give more room for justifications: perhaps I merely violated a duty to inform, or it is possible to appeal to some tacit consent, or maybe my actions were a good faith attempt to capture your wishes and I could plead ignorance. However, when I have explicit refusal from you, I have to have pretty strong justifications to go against your wishes, since in the process I would be violating your dignity, respect, or autonomy. So what possible justification would be, all things considered, good enough to go against your explicit refusal?

I could claim that, if you had all the knowledge I did and rationally calculated your decisions, you would end up with the same conclusion as me. To map this onto the invasive initiative case, one state would claim that a particular public health initiative is objectively the best choice given the risk-benefit analysis, and further claim that to refuse this analysis is to be irrational. Since it would be irrational to refuse the public health initiative, if a neighboring state refused, they would be refusing on irrational grounds; moreover, we would not need to respect their request because if they were rational they would not refuse. In other words, given the neighboring state’s bounded rationality, perhaps they just did not calculate the risks and benefits of the particular public health initiative correctly. This paternalism then becomes analogous to you taking the initiative to take my keys away when I am clearly drunk and insisting on driving home. If I were sober (and thinking more clearly), I would not refuse your initiative and I would relinquish my keys; moreover, when I am sober the next day, I would likely thank you for your paternalistic actions and not listening to my drunk self. In the state initiative case, however, I think it is harder to prove that another state is acting irrationally or being unreasonable. Moreover, even if it is clear to everybody that one state is acting irrationally in resisting the initiatives of another state, it may be good practice to permit cases of false positives and be overly sensitive when resorting to paternalistic action. The idea here is that we ought to be overly charitable and assume even if a certain refusal seems irrational, we imagine that there is something that went wrong in our interpretation of their refusal rather than insisting that they are irrational in their refusal. Still, the aim here is to protect the autonomy of the state, and one may argue that a particular public health initiative is so good that it overrides such concerns. So, we move onto the second avenue of justification.

Next, I could claim that certain initiatives are universally good and require the participation of everybody, and I can subsequently justify paternalistic action because it prevents free-riding. Imagine, for instance, an initiative for the environment to reduce our carbon footprint, and this requires everybody to walk rather than drive cars. Let us further up the ante by imagining that everybody has a vested interested in following this initiative because (say) in ten years everybody will be extremely uncomfortable because of the changes in the environment. If everybody was walking and only I drove a car (because it saves me a lot of time and trouble), then my driving a car will have little impact on the environment but I get to reap the advantages of everybody walking and myself driving a car. I am free-riding on their initiative: everybody walking suffers the cost of inconvenience, while I reap their benefits without any of the inconvenience. Now, it does not seem irrational for me to think this way (perhaps it seems amoral or inconsiderate), and if everybody thought like this, the initiative would fail and everybody suffers. In order to prevent such a scenario, we may use coercive force against people like me; in effect, we have a justification of paternalistic action. Again, this seems plausible, but it requires a very specific scenario, and not all public health initiatives are structured this way.

LEGITIMACY AND OTHER ISSUES

Jonathan Quong points to another issue with paternalism, namely, gaining legitimacy. “Legitimacy,” Quong pushes, “is a complex moral right,” and it “refers to the moral power of one agent to impose duties on another agent, and also to a right of the former agent to use some degree of coercion to enforce those duties.” (Quong, 2011, p. 109) Quong illustrates the difference between being merely justified in coercive actions and having legitimate authority using a story involving a touring company. (Quong, 2011, p. 109) The idea is that even if choosing a certain touring company is the best option for you to make the most out of your trip – and all things considered you have every reason to go with the touring company – if you refused to go with the touring company, it would be silly to think that the touring company can coerce you into being its customer. Even if the touring company can point to a justification for coercing – say, you will have a better trip overall if you chose to tour with them – they do not have legitimate authority over you. This can be thought of as a case of the expert-boss fallacy. (Quong, 2011, p. 118-119) The fallacy is that just because you are an expert and can provide reasons to act in certain ways, it does not make you my boss and give you the authority to dictate my actions through coercive means. Quong formulates this problem with concrete questions: “Just because you have most reason to go on the trip to Peru, why does this entail the touring company should possess the legitimate authority to require and enforce this action? Why should this authority not belong to the president of Peru, indeed, why should it not belong to anyone else we might care to name?” (Quong, 2011, p. 109)

Quong puts his finger on a genuine worry when thinking about the moral consequences of paternalistic actions, and I can only point to a possible solution. Perhaps I can ground my justifications and gain legitimacy in acting paternalistically against you by appealing to some duty you have to yourself. Take the justification that I am acting paternalistic because you are not rational: here, I can gain legitimacy by appealing to the norm you already follow that you ought to be rational. Here, what I am doing by being paternalistic is helping you follow your own commitments and assisting you in following your own duty to be rational. Returning to the drunk-self illustration, if I gave you an advanced directive to take away my keys when I get drunk, you are acting as an instrumental for my own directives when you take away my keys because I am drunk; in this case, your legitimacy as an authority is grounded in the counterfactual claim that you would want me to take your keys away if you were sober (and I am certain of this because of your advanced directives). It is difficult, however, to map this onto the state’s initiative case without appealing to some perfectionist grounds that a certain public health initiative is valuable to everybody, and that (qua a counterfactual claim) you would want the value of this public health initiative if you were thinking rationally. How one might gain legitimacy in paternalistic actions between states is still a muddy question.

Let me tease out one more problematic area insofar as the ethical issues surrounding border crossing public health initiatives. When thinking strictly of consequences, it seems the harm inflicted on the neighboring state takes the form of an exposure to a risk. Suppose the risk is not from the initiative itself, but more detached and downstream – is this risk still the obligation of the origin state? The intuition seems fuzzy. Imagine a case of some infectious disease originating in one state, and one of the citizens brings it over to a neighboring state and causes a massive outbreak in the neighboring state. It does not seem right that the state where the infectious disease originated has done something wrong, or that the neighboring state has some claim on the originating state. The analogy is not perfect, but I think this is suggestive of a problem of closeness. The public health initiative must have a direct negative impact on a neighboring state for it to be considered obviously wrong, and it is not easy to establish such a close connection between a certain initiative and the harm.

In closing, there are several convincing ways of arriving at justifications for paternalistic actions towards another state via public health initiatives that affect other states. The wrongness of the paternalism derives from imposing one state’s risk-benefit analysis on another state, which has an underlying imposition of a state’s values. It is difficult to arrive at the right kinds of reasons to legitimize the use of coercive force over another and to properly ground one’s authority over another state’s good or well-being. In the end, I think the most convincing line of argument appeals to perfectionist principles – namely, principles appealing to a certain set of objectively good or valuable things for all humans. This, however, requires a complex ethical commitment and some appeal to a metaphysical theory about the nature of humans, which seems too controversial to employ. Still, even if certain initiatives are not morally legitimate, perhaps they are all things considered the best option.

Sources

Blake, Michael (2001). Distributive Justice, State Coercion, and Autonomy. Philosophy and Public Affairs: 30 (3). P. 257-296.

Quong, Jonathan (2011).  Liberalism Without Perfection. Oxford: Oxford University Press.

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[1] This distinction might be made clearer with a case that fails the counterfactual test. The classic example is the fat man scenario: imagine you are on a bridge with a fat man, and that bridge is in-between a trolley that is going to kill a dozen people upon impact. If you push the fat man off the bridge to his certain death, his fat body will stop the trolley from kill the dozen people. The fat man’s death is not a merely foreseen consequence and fails the counterfactual test because the fat man cannot be absent to achieve the consequence of saving the dozen people.

[2] Interestingly, Quong does not consider lack of information a relevant case of paternalism. (Quong, 2011, p.83) He notes Mill’s example of stopping a man from walking across an unsafe bridge – in this case, “intervention to save him does not imply a negative judgement,” thus, it is not a case of paternalism on Quong’s definition. Quong notes that “blameless of faultless” lack of knowledge does not entail a negative judgment, but he notes that there is a difference between “not knowing the bridge is about to collapse, and not appreciating the value of, say, listening to a doctor’s medical advice.” (Quong, 2011, p. 83) To extrapolate, had the man known the bridge is unsafe and chose to cross it anyway, our interference would then entail a negative judgement about the man’s mental abilities.