Citation

Gostin LO, Gostin KG. Public Health 2009; 123(3): 214-221.

Affiliation

O'Neill Institute for National and Global Health Law, Georgetown University Law Center, 600 New Jersey Avenue, NW, Washington, DC, 20001, USA.

Copyright

(Copyright © 2009, Elsevier Publishing)

DOI

10.1016/j.puhe.2008.12.024

PMID

19249800

Abstract

Is the 'harm principle', famously propounded by J.S. Mill and widely adopted in bioethics, an appropriate principle to guide public health regulation? The harm principle limits liberty-limiting interventions to those instances where the person poses a significant risk of harm to others. However, much of public health regulation is not primarily directed to avert risk to others, but to safeguard the health and safety of the individual him- or herself. Regulations regarding seatbelts, motorcycle helmets and the fluoridation of water are examples of pervasive public health regulations that are primarily intended to safeguard the individual's own health or safety. Even laws designed to reduce smoking are justified, at least in substantial part, by the reduction of risk to the smoker. Certainly, scholars argue that there are 'other-regarding' aspects to these types of laws, but there is little doubt that there are strong paternalistic features to these, and many other public health laws, such as bans on trans fat in foods. This article directly and forcefully questions the Millian principle, making the case for hard paternalism. When seen from a population-based perspective that counts the number of lives saved, paternalism becomes a plausible justification for interventions that do not pose a truly significant burden on individual liberty, but go a long way towards safeguarding the health and well-being of the populace.

Language: en