The `positive’ sense of the word `liberty’ derives from the wish on the part of the individual to be his own master. [1] In pluralistic society, socio-political justice is conceived as people having different views, morals, values, and the purpose of life which needs to co-exist within a broad framework of legal protections. According to Immanuel Kant, the role of the government was to protect freedom and that people should be left to pursue their own ends as long as they do not harm the freedom of others. [2] Similarly, in “On Liberty”, J.S. Mill [3] insists that one’s liberty holds more significance than protecting people from themselves. He argued that interference with liberty can only be justified when it is restricted to prevent harm to others. [4]
Justice Benjamin Cardozo’s statement that “every adult human being of sound mind has a right to determine what shall be done with his own body.”[5] He did not comment on the quality of the decision i.e. whether it is a “good” decision or a “bad” decision rather emphasized the individual’s right to make that decision. Similarly, Isaiah Berlin writes “I am the possessor of reason and will; I conceive ends and I desire to pursue them; but if I am prevented from attaining them I no longer feel master of the situation.”[6] Therefore the question arises what is the limit of paternalistic laws? Who should define my liberty? Whether I remain the owner of my choices anymore or not?
Liberals believe that, as long as a rational human being is not causing harm to others, they should be free to act in any way they choose, even if their acts harm themselves whereas utilitarian argues that if by making legislation brings about the greatest overall utility, then such legislation is justified. [7]
Exemption from wearing a helmet granted to pillion riders was set aside by the Kerala High Court in 2019.[8]Likewise, Supreme Court Committee has also emphasised on strict implementation of helmet rules in the Union Territory of Puducherry.[9] According to Section 129 of the Motor Vehicle Act, 1988, it is mandatory to wear helmets as per Indian Standards while riding. Legislation for compulsory helmets can be done in the name of utility i.e. helmets reduce headinjuries, therefore harm caused may be considered to outweigh relative rarity. Thus, a policy that reduces such injuries gives its impact on the overall utility level.[10]Ronald Dworkin[11]thinks paternalism can be justified in cases where a person makes a decision that imposes significant risk which they would not make in a rational and informed state of mind. But, is the person who decides whether or not to wear a helmet, not taking this decision in an informed state? Is his decision not a rational person’s decision? What are the criteria to demarcate the same?
In 2019, the top Federal Administrative Court of Germany held that a Sikh person is not exempted from wearing a helmet by citing religious practices. The Court ruled that one’s liberty to practice his religion is not hampered by complying with an obligation to wear a helmet. Even it went on to say that one must forego motorcycling if one wants to comply with his religious requirement to wear a turban. It was also noted that not wearing a helmet has an impact on the legally protected rights of third-party by explaining that not wearing a helmet, affects the physical as well as psychological interests of rescuers and other accident participants. [12] At first glance, so-called “harm” may seem to be a strong argument, however, its major premise needs to be qualified. Society is so highly intertwined, that it is hard to justify that an act causes no harm to others. For instance when one gets injured while not wearing a helmet in a motor vehicle accident, it can be argued that in addition to the harm caused to that person alone, it also caused harm to his loved ones, it negatively impacted innumerable others, as the cost of medical and police services that would be required by taxpayer’s money. In short, one’s actions frequently impact others, whether directly or indirectlyor remotely, and it could be argued that almost all acts influence others unless one lives and dies as a hermit.
Therefore, all self-harm will virtually cause harm to others too. Hence virtually every corner of life could be regulated by law. This should not be done as not all harm to others is wrong and not all wrongful harm could be regularised. If the law starts prohibiting such indirect harm, that would not only include helmet laws but also dangerous sports, unhealthy lifestyles, eating junk foods, bungee jumping, etc. that is, virtually every corner of life on this logic will come in the domain of being regulated by the State.
Paternalistic laws may be permissible if it is not taking any important right. The right not to wear helmets may seem not an important right. However, conceptually, the right not to wear helmets is part of a more important right to determine how much risk to take with one’s health. [13] Of course, there may be a limit to allow risk over one’s health but then who decides that threshold, and what should be the threshold? Some would argue that a threshold beyond which the risks with one’s own health becomes too great can be made justifiable. But this again is a debatable area.
From a normative point of view, many egalitarian and liberal accounts of justice would regard any attempt to force people to bear the costs of their health-affecting behaviour as a moral travesty. Luck egalitarians would defend the idea that costs ought to be borne by those who voluntarily chose to engage in them.[14] Thus, if riders are going to be forced to take fewer risks, then, in the name of consistency and fairness, everyone ought to be required to reduce the comparable risks they run in other aspects of their lives. For example skateboarders, skydivers, and even pedestrians are required to wear helmets too. In fact, by extension, people can be forced to wear spine protectors and other protective devices too.
However, there are certain situations where the costs to an individual’s liberty are trivial as compared to other values, such as health which can be protected by restricting liberty. Liberty is an essential value, but it’s not the ‘only’ value. It follows that upholding the autonomy principle absolute does not force one to condemn all paternalism. So, it depends on your rational thinking whether you want to justify paternalistic law on helmets as a matter of efficient public policy or curtailment of your liberty. The helmet lies on your head.
[1] Isaiah Berlin, “Two Concepts of Liberty,” Four Essays on Liberty, Oxford University Press, 1969, p. 118-172.
[2] Susan Meld Shell, “Kant and the Limits of Autonomy”, Harvard University Press, 2009
[3] J.S. Mill, “On Liberty,” London: Longman, 1998
[4] Bruce Baum, “J. S. Mill on Freedom and Power.” Polity 31, no. 2 (1998): 187-216
[5] Schoendorff v. Society of New York Hosp., 105 N.E. 92, 93 (N.Y.1914)
[6] Supra note 1
[7] Piers Norris Turner, “‘Harm’ and Mill’s Harm Principle.” Ethics, vol. 124, no. 2, 2014, pp. 299–326, available atwww.jstor.org/stable/10.1086/673436 Accessed 4 May 2021.
[8]George John and Ravindran T.U. v The Chief Secretary, Government of Kerala, WP(C).No.25181 of 2010(S)
[9]S. Prasad, SC Panel wants helmet rule enforced. The Hindu, February 27, 2019, available at https://www.thehindu.com/news/cities/puducherry/sc-panel-wants-helmet-rule-enforced/article26380210.ece
[10] C. Hooper, J. Spicer, “Liberty or death; don’t tread on me,” Journal of Medical Ethics 2012; 38: 338-341.
[11]Paternalism and Irrationality, May 2017, 2010 available athttps://ocw.mit.edu/courses/linguistics-and-philosophy/24-235j-philosophy-of-law-spring-2012/assignments/MIT24_235JS12_Paternalism.pdf.
[12]German Court: Sikhs have to wear helmets on motorbikes, July 7, 2019, available athttps://www.dw.com/en/german-court-sikhs-have-to-wear-helmets-on-motorbikes/a-49475615.
[13] Michael N. Goldman and Alan H. Goldman, “Paternalistic Laws”, Philosophical Topics, Vol. 18, No. 1, 1990, pp. 65-78, available atwww.jstor.org/stable/43154065.
[14] Lamont, Julian and Christi Favor, “Distributive Justice”, The Stanford Encyclopedia of Philosophy (Winter 2017 Edition), Edward N. Zalta (ed.), available athttps://plato.stanford.edu/archives/win2017/entries/justice-distributive/