The Limits of State Intervention: Personal Identity and Ultra-Risky Actions

Abstract

In his Essay on Liberty, John Stuart Mill set forth one very simple . . . to govern absolutely the state's interference in the affairs of the individual: That is, that the sole end for which mankind are warranted, individually or collectively, in interfering with the of action of any of their number, is self-protection. That the only purpose for which power can be rightfully exercised over any member of a civilized community, against his will, is to prevent harm to others. His own good, either physical or moral, is not a sufficient warrant. The limits to state intervention set by Mill depend on a distinction between self-regarding actions and other-regarding actions-actions which harm only the actor, as opposed to actions which may also harm other persons. Mill's liberty principle categorically precludes state control of self-regarding actions, but permits the regulation of other-regarding actions. Political theorists, including those sympathetic to Mill, have commonly expressed doubt whether a valid can be so absolute. These doubts focus on self-regarding actions that impose a very high risk of harm on the actor. In particular, when the risk of harm can be significantly reduced with little effort or sacrifice on the actor's part, it seems unreasonable to insist that the state can take no measures to protect him from the consequences of his own neglect. Jurists have shared the doubts of political philosophers about the reasonableness of Mill's absolute prohibition. As justification for regulating ultra-risky activities, jurists have argued that risky actions place persons other than the actor in danger and hence are truly other-regarding. The political theorists have concentrated instead on the actor, contending that any person who undertakes an ultra-risky activity is necessarily irrational; it is this lack of responsible capacity which makes Mill's inapplicable. Both approaches may appear to leave Mill's absolute. But in effect they render it useless as a limit on state intervention. For all risky actions place some burden on others, and all risky actions can be said to attest to the irrationality of the actor. This Note offers a justification for legislation controlling ultra-risky activities that is consistent with Mill's absolute prohibition against paternalism, and yet does not allow unlimited state intervention. Central to the approach is the philosophical issue of personal identity.