Harm and Helmets: How Harmful Social Costs Fail to Justify Paternalistic Health and Safety Regulations

• DOI: http://doi.org/10.1177/10659129211070351
• Published date: 01 December 2022
• Date: 01 December 2022
• Subject Matter: Articles

Article

Political Research Quarterly

2022, Vol. 75(4) 1271–1283

© The Author(s) 2021

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DOI: 10.1177/10659129211070351

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Harm and Helmets: How Harmful Social

Costs Fail to Justify Paternalistic Health

and Safety Regulations

Devin J. Christensen

Abstract

Mill’s harm principle and the f‌inancial externalities of risky behavior are routinely invoked to justify health and safety

regulation. However, this approach fares poorly when subjected to theoretical scrutiny. First, it is false: individuals

engaging in risky behavior do not harm others. Second, even if risky behavior were har mful to others, the argument from

harmful externalities does not imply safety-enhancing policy interventions, at least not without additional appeals to

paternalism. Third, focusing on the economic impacts of accidents invites perverse victim-blaming attitudes toward

accident victims that undermine democratic values and justice. To improve our moral understanding of health and safety

regulation, I sketch a theory of public policy justif‌ication grounded in the controversies which attract our attention to

paternalistic polices in the f‌irst place. On this account, justif‌icatory arguments are plausible if they identify goods that

individuals genuinely aff‌irm on their own terms, are sensitive to causal responsibility and imbalances between restraint

and protection, and comparatively engage with possible policy alternatives. Illustrating the shortcomings of one dominant

approach to public policy justif‌ication and reorienting us toward the controversies that policy justif‌ications need to

confront ref‌lect two ways that political theory can help enhance justice in public polic y design and articulation.

Keywords

justif‌ication, public policy, social costs, harm, paternalism, motorcycle helmet

Introduction

Health and safety regulations are a thorny issue for liberals

because they pit the moral goals of protecting life and

protecting freedom against one another. On the one hand,

regulatory interventions save thousands of lives every

year (Cook et al. 2009;Mayrose 2008;Wobrock et al.

2003), and repealing them would lead thousands of in-

dividuals who otherwise would have lived to die (Carter

et al. 2017;Preusser, Hedlund and Ulmer 2000). This is

cause for alarm on any defensible moral platform. On the

other hand, safety regulations are rightly criticized for

being paternalistic because they restrict individuals’

freedom in the name of delivering what the state estimates

is in those individuals’best interests. The puzzle for

liberals who support regulatory intervention, then, is to

somehow reconcile liberal commitments with basic moral

intuitions concerning the value of human life.

To navigate this puzzle, policymakers and citizen

commentators routinely invoke Mill’s harm principle

(Biegler and Johnson 2013;Mello and Studdert 2014;

Claassen 2016;Diekema 2004;Eastridge et al. 2006;

Gostin and Gostin 2009;Ferguson 2011). It is generally

accepted that the state may intervene in order to protect us

from other people, which creates the possibility for non-

paternalistic justif‌ications for health and safety regulations

that prevent individuals engaging in risky behavior from

harming third-party others (Huster 2015;Anomaly 2009;

Le Grand and New 2015). In the case of health and safety

regulations, defenders of intervention point to external

f‌inancial costs as relevant harms the state should intervene

to prevent, thereby vindicating regulatory intervention

without directly confronting paternalism (Biegler and

Johnson 2015;Mello and Studdert 2014;Winokur

2007;Claassen 2016;Purdy and Seigel 2012;Le

University of North Carolina at Chapel Hill, Chapel Hill, NC, USA

Corresponding Author:

Devin J. Christensen, University of North Carolina at Chapel Hill, 361

Hamilton Hall CB 3265, Chapel Hill, NC, USA.

Email: djc2020@live.unc.edu