Paternalism and Personal Identity

by John Kleinig

Abstract: Limited space for strong paternalism that does not violate liberal values may be
found in the complex and elusive idea of personal identity. Several options for liberal
paternalism are explored. There is, first, the idea of a layered self, comprising core and
peripheral commitments, in which the latter may sometimes jeopardize the former.
Paternalistic interventions may seek to secure the former against the latter. Second,
there is the more contentious idea that personal identity is not continuous but succes-
sive, and that a foreseen later self may be overridden in favor of an earlier, and, pre-
sumably, more authentic self. Third, consideration is given to the possibility that the self
emerging from paternalistic intervention is radically different from the self that originally
authorized an advance directive. Should the earlier self be given priority over the emer-
gent later one? Finally, the paper hints at the limited scope of liberal defenses that trade
on the complexities of personal identity by confronting the challenge that is posed by
consensual cannibalism, in which one person’s core concern is the consumption of a
willing other. Though liberals are rightly troubled by strong paternalism, they must find
plausible ways of dealing with hard cases.
Keywords: Complexity, continuity and change, human dignity, paternalism, personal iden-
tity, selves.

Introduction
Liberals do not generally look kindly on paternalism, legal or otherwise. Bene-
volently motivated but unconsented-to interventions in others’ affairs tend to be
viewed as unacceptable encroachments on their autonomy or, relatedly, insults to
their dignity. Although such personal autonomy is initially construed as a range of
capacities for rational discrimination and self-determination (integrated with various
emotive and conative capacities), it is often normatively weighted to justify its social
recognition as personal sovereignty. The locus classicus is John Stuart Mill’s contention
that only the prevention of “harm to others” can be invoked to justify “the dealings
of society with the individual in the way of compulsion and control, whether the
means used be physical force in the form of legal penalties, or the moral coercion of
public opinion.” The corollary to this principle is that the individual’s “own good,
either physical or moral, is not a sufficient warrant [for interference]. He cannot
rightfully be compelled to do or forbear because it will be better for him to do so,
because it will make him happier, because, in the opinions of others, to do so would
be wise, or even right.” In respect of the part of an individual’s conduct that “merely

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94 John Kleinig

concerns himself, his independence is, of right, absolute. Over himself, over his own
body and mind, the individual is sovereign.”1
And yet it has never been quite as simple as this. Close friends have often (albeit
not always) been grateful to each other for paternalistic interventions that may have
met initial resistance2; and the law has usually drawn the line of non-intervention at
voluntary self-regarding behavior that does not portend serious harm3. Moreover,
there is significant – if not universal – public support for regulations that prohibit
people from engaging in certain activities without using self-protective gear4 or from
pursuing certain kinds of deliberately self-harming outcomes5. And so whatever dis-
value is thought to be implicit in categorizing actions and initiatives as “paternalis-
tic,” there has nevertheless been some support for the idea that in certain contexts
paternalism may be ethically countenanced.
Nevertheless, devout liberals have often found it difficult to accommodate such
interferences. Personal autonomy is analogized to political autonomy and the West-
phalian notion of sovereignty with which it is associated, leaving relatively little
theoretical space for paternalistic interventions. And so liberals have generally been
strenuously opposed to them and, to the extent that they have supported what
appear to be paternalistic constraints, they have usually sought or offered a justifica-
tion that appeals either to significantly compromised autonomy (the analogue of a
failed state?) or to some public value that is endangered and should be secured (the
analogue of a rogue state?). The friend who is bundled into a taxi after a party is not
as sober as he needs to be to drive a car safely home (even though the law would

1
MILL, J.S. (1859): On Liberty, 4th ed., in: Collected Works of John Stuart Mill, ed. by
ROBSON, J.M., Vol. XVIII, Toronto 1977, Chap. 1.
2
In fact the literature on intimate paternalism is quite divided. For generally sympathetic
views, see RICHARDS, N. (1989): Paternalism Toward Friends, in: GRAHAM, G., LAFOL-
LETTE, H. (eds.): Person to Person, Philadelphia, 235–244; SHOGAN, D. (1991): Trusting
Paternalism? Trust as a Condition for Paternalistic Decisions, in: Journal of the Philosophy of
Sport 18, 49–58; FOX, E.L. (1993): Paternalism and Friendship, in: Canadian Journal of Phi-
losophy 23, 575–594; CHAN, S.Y. (2000): Paternalistic Wife? Paternalistic Stranger?, in: Social
Theory and Practice 26, 85–101.
3
See, in particular, BERGELSON, V. (2007): The Right to Be Hurt: Testing the Boundaries of
Consent, in: George Washington Law Review 75, 165–236.
4
Seatbelt, cycle helmet, and moderately self-protective sporting rules are generally sup-
ported.
5
There is not too much opposition to laws against serious self-mutilation, though Body
Integrity Identity Disorder presents a special challenge: see ELLIOTT, C. (2000): A New
Way to be Mad, in: Atlantic Monthly 283 (6), 72–84; BAYNE, T., LEVY, N. (2005): Ampu-
tees by Choice: Body Integrity Identity Disorder and the Ethics of Amputation, in: Journal of
Applied Philosophy 22 (1), 75–86. Whether the criminal law should be invoked in any
of these cases is another matter, especially as those whose desire for amputation is met
appear to be more than content with the outcome.

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 Paternalism and Personal Identity 95

treat him as responsible were he to injure only himself); and the motorist who
neglects to use his seatbelt also risks becoming a public charge.
Apart from arguments that focus on a compromised autonomy or on some
important public value to be secured, is there any other way in which a liberal can
comfortably sustain paternalistic measures that have fairly wide public support? That
may be a problematic way of posing the question, for it appears to accord a norma-
tive status to wide public support, and I am dubious about such appeals except as a
possible clue to some deeper normative consideration. That said, there does seem to
be an intuitive value to ensuring that ordinary people – “people as we find them” –
are secured against at least some of the consequences of their self-harming deci-
sions.
I propose to provide the framework for a justification of limited strong paternal-
ism by considering certain complexities inherent in the notion of a self or personal
identity. I do so by considering three cases. In Section I, I consider a fairly typical
case of strong paternalistic legislation; in Sections II and III, I review the possible
implications of two hypothetical cases; and in Section IV, I consider a case that sits
uneasily with the framework I have presented.

I.
Consider the following case. In 2007, Jon Corzine, the governor of New Jersey, was
traveling between meetings when the driver of another vehicle collided with Cor-
zine’s official SUV (sport utility vehicle). His driver was unable to retain full control
of the vehicle, it slid into a guardrail, and Corzine was seriously injured. As was his
wont, Corzine was not wearing a seatbelt, a fact that generated considerable public
discussion along with Corzine’s own mea culpa and strong support for existing (and
even enhanced) seatbelt laws. Corzine’s decision not to wear his seatbelt was a con-
scious and habitual one: a previous aide said he had given up reminding Corzine to
wear it. Corzine himself found it much easier to conduct conversations with fellow
passengers without the hindrance caused by the seat belt. Yet he didn’t argue that he
should not have been prevented from making that decision. Chastened by his fool-
ishness, he was resolute in his support for the law that he had failed to observe.
The incident is revealing, because it shows how a well-formed and well-grounded
belief in the safety value of seatbelts can be subverted by an otherwise reasonable
desire to conduct a conversation in maximally comfortable conditions. Had it been
put to him, Corzine would have agreed that personal safety trumps personal con-
venience. What the incident shows, however, is that the autonomous self is not a
unitary phenomenon but quite complex and that in preventing people from endan-
gering themselves we need not always violate their autonomy and best judgment in
an unacceptable way.

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96 John Kleinig

Some years ago I offered an account of the self that attempted to accommodate
some paternalistic measures by appealing to the idea of a layered self.6 Corzine’s
case provides a clear example. Here, an admittedly lower status but not insignificant
consideration (a high level of physical comfort in conducting a discussion) usurped
one that he would have considered more important (personal safety), presumably
rationalized by discounting the risk in relation to the gain in comfort. It reflected a
self that was not fully unified, one comprising a number of dispositions, tendencies,
inclinations, and commitments that did not always work in harmony, and mediation
among which was not settled by appeal to any simple principle. Bishop Joseph But-
ler, a pioneer in the psychology of human nature, observed of conscience’s relation-
ship to other principles of behavior that “had it power as it has authority, it would
rule the world.”7 Importance is not the same as influence, and what Butler observed
with regard to conscience may also occur with other elements of the self: what we
may view as a lesser consideration can exert disproportionate influence on our deci-
sion-making.
I construe the “self” somewhat informally as that structure of embodied disposi-
tions and commitments, capacities and abilities, memories and desires, feelings and
emotions, and attitudes and inclinations that are linked together as some particular
person or “I.” Though the self is generally unitary, it is not necessarily and perhaps
not usually unified in the way that, say, a watch is unified, with its various parts all
functioning harmoniously to realize a single end.8
This should not surprise us. Human selves are somewhat haphazardly con-
structed – not according to some fixed blueprint but as the result of a myriad of
influences over which others – and the emerging self – have only limited control.
No doubt there are broadly shared genetic factors that make human beings suited
not only to personhood but also to a certain kind of personhood. But whatever the
influence of those genetic factors, a plethora of social factors will also be of critical
importance in forming the particular identity that develops. The newborn child does
not have a distinctively characterizable “self” or “identity” to speak of but becomes
a particular self through a process of nurture in which it is exposed to a large diver-
sity of influences, not all of which will be pointed in the same direction. Some of
these influences will be social (family, friends, teachers, acquaintances, and so forth),
and some will be circumstantial (the bicycle accident, travel, economic hardship, and
suchlike). Nevertheless, it is the particular “genius” of human beings as we know
them that by adulthood the infant that is nurtured comes to acquire certain imagi-
native, empathetic, ratiocinative, associative, and judgmental powers that both con-

6
KLEINIG, J. (1984): Paternalism, Totowa (New Jersey), 67–73.
7
BUTLER, J. (1729): Preface to Fifteen Sermons, in: Butler’s Works, ed. by GLADSTONE, W.,
Oxford 1896, Vol. I, 5–6.
8
A modern watch may of course be structured to realize several ends besides timekeep-
ing. But it is engineered in such a way that the realization of one end will not conflict
with the realization of others.

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 Paternalism and Personal Identity 97

stitute it as a particular self and enable it to reflect to varying degrees on what it

experiences. These second-order capacities make it possible for the emerging iden-
tity to sort through, interpret, evaluate, rank, and elevate or downgrade these multi-
ple experiences and bring them into some sort of distinctive and ordered structure
with which it can identify and for which others can hold it to account.
As I’ve already noted, this process of personal development does not ordinarily
yield anything as well integrated or fixed as a watch. Indeed, we often spend a good
deal of our time mediating among competing tendencies, inclinations, desires, atti-
tudes, principles, values, and so forth, either seeking to reconcile them or prioritiz-
ing them in the event that we cannot. The complexity of this structure – this self – is
such that it will generally be very risky for others to impose their own judgments on
us. Thus the physician who seeks to persuade her patient that Option A is medically
preferable to Option B may fail to appreciate the patient’s economic, religious, and/
or emotional concerns that are in tension with A. As Mill puts it in his critique of
paternalism, “the interference of society to overrule [an individual’s] judgment and
purposes in what only regards himself, must be grounded on general presumptions;
which may be altogether wrong, and even if right, are as likely as not to be mis-
applied to individual cases, by persons no better acquainted with the circumstances
of such cases than those are who look at them merely from without.”9
At first blush, this may suggest that individuals will tend to make judgments that,
given the complexity of their identities, will best reflect their own situations. Or, at
least, that they will attempt to make judgments concerning what, given the difficul-
ties of commensuration, will optimize their situations. But though that may often be
the case, we are well acquainted with the fact that humans as we find them also dis-
play a significant propensity for poor decision making and even for making deci-
sions that compromise their ability to make good decisions. As we are often more
perceptive with respect to others’ character traits than to our own, we are often less
able than others to appreciate our own poor judgment.
More than one type of failure can be identified:
(1) Akrasia, weakness of will, may lead us to violate what, in our better moments,
we recognize as authoritative considerations for us. We succumb to temptation and
later kick ourselves for our weakness. In its moral forms, akrasia is more likely to be
displayed in other-regarding contexts and a social price for our failure may thus
need to be paid. But there are almost certainly self-regarding failures (that may even
amount to moral failures) arising from weakness of will – moral cowardice or
imprudence, certain forms of self-indulgence that are bad for us or, in more Kantian
terms, unsuited to the humanity in us.
(2) Sometimes we are simply inattentive to the dangers that confront us or that
we create for ourselves. We become preoccupied with what we are doing and fail to
notice the dangerous situation we are getting into. We fail to appreciate that dark-
ness is beginning to fall, that the neighborhood we are entering is dangerous, that
9
Mill, On Liberty, Chap. 4.

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98 John Kleinig

the seas are rising and the clouds are gathering, that the tide is coming in, or that the
food preparation has been carried out in unsanitary circumstances.
(3) In other cases it is not inattentiveness so much as a situational inability to
make all the checks that might secure us against harm – whether the appliance is
safe, the building is free from hazards, the bank or insurance company is sound, and
so on. Caveat emptor, a fine-sounding doctrine, is at best one with limited scope, and
so we may require that manufacturers and others ensure that certain levels of safety,
security, or wittingness are observed. The unsafe bridge that Mill’s traveler wishes to
cross ought to be signposted, if not barricaded.10
(4) Sometimes we display a willfulness that, down the track, we will likely regret
(or perhaps would have regretted, were we still around to realize what we did). We
surf outside the flags because the waves are bigger, though the undertow and reef
are treacherous. We climb over the safety fence at a cliff face to take a better photo-
graph, even though the rocks are slippery with algae. And some seek the emotional
charge of spinning the barrel and pulling the trigger.
(5) Sometimes we enjoy the challenge and thrill of engaging in certain activities –
such as extreme sports – even though significant risks are involved. Some thrill to
the contest of a boxing match or the challenge of a cliff face.
The list is not intended to be exhaustive or even exclusive. Moreover, whether or
not and if so how we choose to interfere with such failures may depend on a variety
of factors, including the imminence, magnitude, and reversibility of the costs asso-
ciated with them. It may be an important learning experience that people suffer the
consequences of their foolishness or recklessness. Moreover, as Mill observed:

“It is possible that [a person] might be guided in some good path, and kept out of
harm’s way, without any of these things. But what will be his comparative worth
as a human being? It really is of importance, not only what men do, but also what
manner of men they are that do it. Among the works of man, which human life is
rightly employed in perfecting and beautifying, the first in importance surely is
man himself.”11

Mill’s words, however, also embody an interesting tension. He recognizes that that
which makes human life worthwhile will be stifled if people are resolutely kept out
of harm’s way; at the same time he thinks that the point of a worthwhile human life
is self-perfection and self-beautification. We can allow that the latter will be defeated
if people are always and in every way kept out of harm’s way; equally, however, fail-
ure to intervene may sometimes result in self-destruction. I think there is an argu-
ment here for some sort of balance – if achievable, a ground for keeping individuals
from the worst consequences of their self-regarding decisions, but permitting them
those mistakes that are compatible with (though not necessarily promotive of) their

10
Ibid., Chap. 5.
11
Ibid., Chap. 3.

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 Paternalism and Personal Identity 99

self-beautification and self-perfection. True, the two alternatives are not entirely
discrete for it may occasionally be that an act of self-immolation will display a per-
son’s nobility of character, but we may generally assume that, in the absence of
some recognizably important end, people do not wish to destroy the possibilities for
their flourishing. We have no reason to think that for Corzine it was more impor-
tant that he engage in comfortable vehicular discussion than secure himself against
the consequences of an accident.
Intervening paternalistically in people’s decisions in this way is not to be con-
fused with pitting their “ideal” selves against their actual selves. It is a case of pitting
one part of an actual self against another, taking into account people’s own priorities
(though not necessarily their occurrent inclinations). However, it does assume that
in certain kinds of cases others are better judges of our good than we might occur-
rently be.
Nor is this account quite the same as a Ulysses contract in which a person explic-
itly authorizes his being bound against the consequences of poor judgment, though
there are some similarities, at least within the framework of a liberal democratic pol-
ity. We ordinarily expect that various paternalistic measures will have been subject to
some form of public debate before they are imposed. We might therefore expect
such measures to conform to priorities that we broadly accept.

II.
The foregoing example presumes that the person who is paternalistically interfered
with will come to be appreciative of the paternalistic measures taken if and when
they coincide with a set of circumstances in which the measures succeed in securing
that person against serious unwanted injury.
But consider now a case developed by Derek Parfit.12 A young Russian nobleman
– following Donald Regan, let us call him Boris – will eventually inherit vast estates.
But he is committed to certain socialist ideals and wishes to transfer the ownership
of these estates to the local peasants. He foresees, however, that with age conserva-
tism may come along with a change of mind, and so he draws up documents pro-
viding for their automatic transfer to the peasants when he inherits them, requiring
in addition that they be revocable only with his wife’s consent. He then gets his wife
to promise not to consent should he – as he fears he might – become conservative
and then entreat her to consent to his withdrawal from the commitment. Sure
12
Parfit originally developed the story in PARFIT, D. (1973): Later Selves and Moral Princi-
ples”, in: MONTEFIORE, A. (ed.): Philosophy and Personal Relations, Montreal, 137–169,
esp. 145, and then incorporated it into his book PARFIT, D. (1984): Reasons and Persons,
New York, 327–329. In a later contribution, PARFIT, D. (1986): Comments on Contributors,
in: Ethics 96, 839, Parfit appears to modify his views.

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100 John Kleinig

enough, by the time he inherits the land he has become conservative and he begs
her to consent to his negating the commitment. Should his wife accede or refuse?
One way to respond to the case is to claim that Boris’s wife should not accede to
the request. Her commitment was to Boris’s earlier self – Boris1 – and Boris2 has no
power to unbind her from the promise that was made to Boris1. Boris2 – as Boris1
feared might be the case – is a corruption of Boris1, and acceding to his request
would be a betrayal of the man she married. This is Parfit’s strategy. The earlier self,
anticipating the emergence of a later self, has prepared a defense against its claims,
in much the same way that an alienated member of a family, anticipating that on his
death other members will seek to make familially based claims against his estate,
draws up a will that will legally exclude them from the claims they might otherwise
have been able to make.
But we could make a different response to that offered by Parfit. We might
acknowledge that Boris has indeed undergone major changes of viewpoint, but
argue that Boris2, though markedly different from Boris1, is still continuous with
him and that his wife, even though she may be saddened by the changes to Boris1,
should seriously consider acceding to what Boris2 wants. The Boris she is currently
married to is the Boris to whom she originally committed herself, despite the radical
personality changes that he has undergone. She now has a difficult decision to make
– whether to renege on her promise to the younger Boris because of the changed
desires associated with the older Boris. She might, as Feinberg suggests, simply have
to weigh two obligations – one being fidelity to a promise that she once made, the
other being an obligation to save Boris as he has now become from doing what,
given what he has become, will plunge him into abject misery.13
Suppose that Boris’s wife decides not to break her original vow. Despite the mis-
ery that it will cause Boris, she believes that it will be better for him – his honor –
that she deny him the consent he craves from her. Might such paternalism be justi-
fied? He is not going to thank her. He no longer holds the views he once did. It is
not just that she made a solemn promise – though she did. She is aware of its
weight. But she made the solemn promise to someone who anticipated the circum-
stances with which she is now confronted and who sought to guard against them. It
was the content of her promise and not merely the fact of her promising that now
leads her to refuse Boris’s entreaties. For the sake of his honor she will not relent.
She is the guardian of his honor and not simply her self-assumed obligations.
Consider how it might be otherwise had the younger Boris been eager to indulge
himself with his inheritance, but feared that he could later be moved by the plight of
the peasants. To save himself from such an irksome eventuality, he signs a docu-
ment that makes his ownership irrevocable except with the consent of his wife who
dutifully promises never to give such consent. And so it turns out to be: Boris
comes to be a compassionate heir and now wishes to transfer title to the peasants.

13
FEINBERG, J. (1986): The Moral Limits of the Criminal Law, Vol. 3: Harm to Self, Oxford,
87.

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 Paternalism and Personal Identity 101

He begs his wife to consent to the change. What of her solemn promise – a promise
made in the knowledge that he might become a compassionate landholder? Might
Boris’s wife decide that his honor will be better served if she reneges on her prom-
ise, given its content, quite apart from the fact that he will be saved from future
misery? It is not unreasonable to think that she might.
One important difference between Boris’s case (as initially described) and that of
Jon Corzine is that in the latter’s case the seat belt laws could be said to reflect
Corzine’s values as they were at the time. In Boris’s case, however, his wife’s pater-
nalism did not reflect values that he now had even though it did reflect values to
which he once hewed and against whose change he sought to secure himself.
Although I do not think it makes the paternalism morally illegitimate, it makes such
paternalism much riskier. We might be more troubled were his wife to refuse his
later entreaties in the variant in which he now wished to divest himself of the estate
he once coveted for himself.

III.
Now consider a hypothetical case constructed from one developed by Michael
Quante.14 A person, let us call her Sybil15, draws up an advance directive that calls
for the withdrawal of life-saving treatment should she become comatose. In such
contracts there is often an implicit understanding that continued treatment is per-
mitted only in the unlikely event that “full” recovery will likely be possible.16 When
Sybil becomes incompetent, it is determined that she can recover. However, the
treatment will have the effect of bringing about a massive personality change in the
“recovered” Sybil, a personality quite different from that which she had before
becoming incompetent. Should this have ethical relevance for a decision to
treat/not treat, and, if so, how should it affect our judgment?
One might argue – as Quante does – that such a shift would indeed possess ethi-
cal relevance. For one of the considerations that we are inclined to advance in the
standard case (as in Section I) is that the person who is paternalistically imposed
upon will subsequently recognize the imposition to have been in line with her hier-

14
QUANTE, M. (1999): Precedent Autonomy and Personal Identity, in: Kennedy Institute of Eth-
ics Journal 9 (4), 365–381. I have altered Quante’s case D3 in various ways for present
purposes.
15
There are some interesting intersections here with the film Sybil, based on the account
given in SCHREIBER, F.R. (1974): Sybil, 2nd ed., New York.
16
Full recovery need not mean status quo ante but something like the status quo at the time
of drawing up of the advance directive. A person who gradually declines toward incom-
petence might not wish to have continued treatment if all that is likely to be recovered is
that person’s state prior to becoming incompetent.

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102 John Kleinig

archy of values.17 But Sybil’s case is different. Given her hierarchy of values she has
indicated that should she lapse into incompetence she wants treatment withdrawn.
She does not wish a future of incompetence for herself, and implicitly, she does not
wish for herself a future in which she is restored to a life of severe disability. How-
ever, what she doesn’t contemplate is the possibility of restored competence but
with a radically different personality.
What then should we say about continuing Sybil’s treatment? How we respond
might depend on how we conceive of the relation between Sybil1 and Sybil2. Are we
dealing with two different identities or with the same person, albeit greatly changed?
And how we answer this latter question might depend in part on what we take to be
critical to the determination of a person’s identity over time. There is bodily conti-
nuity between Sybil1 and Sybil2, and this surely is of considerable significance,
though it may not determinative. (A brain transplant – were it possible – might be
thought radical enough to change our view that Sybil2 is also Sybil1). But in the pre-
sent case Sybil2 is fully continuous with Sybil1 so far as bodily identity is concerned.
What will change is Sybil2’s personality. And presumably it will change so radically
that Sybil2 does not “identify with” Sybil1.
Significant psychological and character changes will often occur in the ordinary
course of a person’s life. Although some threads may persist through the decades,
others will vary. The easily distractible child may become the focused scholar; the
angelic youth may become a scheming defrauder. Usually, though, there is an identi-
fiable “rope of personality” that will connect one stage in a person’s biography with
another. In the case at hand, however, there seems to be a radical break. But that
may not be enough to speak of two normatively different identities. Is the emer-
gence of Sybil2 contrary to the wishes of Sybil1’s advance directive, and, if so, does it
violate those wishes? Or will Sybil2 be a distinct person such that Sybil1 has not been
restored to some potentially unwanted existence, and Sybil2 is the only person with
whom we now have to contend? Does it just happen to be the case that she “recy-
cles” the body once occupied by Sybil1?
A hypothetical case of this kind is not something for which our moral intuitions
are well prepared. Normatively speaking, we might go either way. Parfit considers
the case of a person who, when he was twenty, attacked and severely beat a police-
man during a drunken brawl. He was not identified at the time. Now he is ninety,
the deserving recipient of a Nobel Peace Prize, and his earlier involvement is now
revealed. Such a person, Parfit thinks, no longer deserves to be punished. The

17
That is one reason why we would be justified in refusing to unbind Ulysses as the Siren
songs break down his resistance to their deadly seductive power. Ulysses, as the person
he is before he approaches the Sirens’ island, knows that he will be seduced by their
voices, and so he seeks to bind himself against their lure. For him, it is, in an important
sense, not really paternalistic if he is kept bound, for that is what, in a cool hour, he has
asked for, and for precisely this situation. Once past their island, he asks to be unbound
and is appreciative that his crew did not give in to his entreaties.

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 Paternalism and Personal Identity 103

ninety-year-old Jean2 is not identical with the twenty-year-old Jean1.18 I think Parfit
has it wrong. It is true that we may think that punishing Jean2 for Jean1’s offense
may not be appropriate – but not because it is no longer deserved. Jean2, as con-
tinuous with though radically changed from Jean1, may be deserving of punishment.
But desert is at most defeasibly sufficient for justified punishment, and we may want
to consider other factors abut Jean2 that will make it more appropriate to engage in
an exercise of mercy toward Jean2. Jean2 is sorry for what he did when he was
twenty. His subsequent life has been one of radical self-improvement and of service
to others. It would be churlish to overlook such changes in deciding whether, all
things considered, he ought to be punished.
Alternatively, we might try to extrapolate from unusual cases in which people
have suffered some major head injury that brings about major personality change.
Two cases come to mind. One concerns a person, Phineas Gage, a railroad worker
who had an iron rod pierce his frontal lobes in a rock-blasting accident, and who
changed from being a responsible, hardworking, and decent person into one who
was impatient, irreverent, and vacillating.19 A somewhat different case concerns
those whose brain injuries have eliminated memories of earlier events (that is, have
brought about retrograde, rather than anterograde, amnesia). Our general response
to both cases has been to assert continued identity along with a recognition of radi-
cally affected personality. The latter are the most instructive, as they have figured in
legal cases about determinations of responsibility and justifiable responses.
In Memory and Punishment, Christopher Birch argues that in cases in which a later
self no longer remembers the doings of an earlier self, the later self should not be
held responsible for the acts of the earlier one or liable for their punishment.20 The
argument relies particularly on the salience of memory, and so, if we are to make
some response to the cases of Sybil1 and Sybil2, one question we might want to ask
of Sybil2 is whether, despite the radically different personality she has, compared to
Sybil1, she remembers the events of Sybil1’s life. If she does, we may then assert
continuity of identity and take the risk that Sybil2 will be sufficiently content with
the kind of life she has as Sybil2 to be glad that treatment of Sybil1 was continued. If
not, then we will probably not be in a position to know whether what was done to
Sybil1 fell within the range of possibilities that she might have accepted, and we will

18
There are echoes here of Jean Valjean in Victor Hugo’s Les miserables.
19
For general information, see the Phineas Gage Information Page, http://www.deakin.edu.
au/hmnbs/psychology/gagepage (last access: May 2009).
20
BIRCH, C. (2000): Memory and Punishment, in: Criminal Justice Ethics 17, 17–31, especially
what he characterizes as Case 3 (ibid., 24). Birch accepts more of Parfit’s account than I
do. As well, I prescind from the lively and imaginative debate that has emanated from
John Locke’s celebrated use of memory as the criterion for personal identity and Bishop
Butler’s equally celebrated “refutation” of Locke. See LOCKE, J. (1689): An Essay Con-
cerning Human Understanding, ed. by WOOLHOUSE, R., London 2004; BUTLER, J. (1736):
The Analogy of Religion, ed. by CROOKS, G.R., New York 1860, Appendix.

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104 John Kleinig

not have violated any wishes attributable to Sybil2. A further possibility, however, is
that Sybil2’s values will be such as to resent what was done to Sybil1 – out of some
strong opposition to paternalism – even though, had Sybil1 not been treated, Sybil2
would not have come into being. It would be curious though, for Sybil2 to be con-
tent with her own life while resenting the continued treatment of Sybil1 that was
responsible for her emergence.

IV.
What I have attempted to do in the preceding three Sections is explore some possi-
bilities for strong paternalism that make use of the idea of personal identity. I am
reluctant to draw too many conclusions, apart from those that are implicit in Sec-
tion I, in which we can argue with some confidence that, because of his or her
existing values, the paternalistically imposed-on person could be expected to appre-
ciate the benefits of the paternalistic imposition. Part of our difficulties in later cases
arises from not having rich enough accounts of the selves at issue. There is, perhaps,
no simple formula to be invoked, but rather a variety of considerations that might
need to be traded off and considered on a case-by-case basis. Although I give con-
siderable weight to autonomy, I am reluctant to give it the uniformly overly over-
riding significance that seems to be indicated by traditional Millian accounts of per-
sonal sovereignty. We need an argument that takes us from autonomy as a set of
capacities to personal sovereignty, which is a status, and although Mill provides us
with some arguments, it is not clear that they establish the latter except as a matter
of contingency.21
Let me conclude on a somewhat different note. The argument for paternalism
based on complexities in the idea of personal identity is not intended to cover every
kind of case in which we may wish to engage in paternalism involving responsible
behavior. There are also cases in which it might be more productive to explore
alternative possibilities. I close with one such case.
Armin Meiwes had for many years been strongly drawn to the idea of eating
human flesh, and in 2000 he advertised on the Cannibal Café for someone who might
satisfy his desires.22 After pursuing several responses that did not work out, he was
eventually contacted by Bernd Jürgen Brandes, a computer technician, who was

21
In Chapter 4 of On Liberty, Mill states that “the strongest of all arguments against the
interference of the public with purely personal conduct is that, when it does interfere,
the odds are that it interferes wrongly, and in the wrong place.” (MILL, On Liberty,
Chap. 4.) This quasi-empirical claim is not really strong enough to sustain a principled
objection to paternalism.
22
For some accounts, see the resources accessible through http://en.wikipedia.org/wiki/
Armin_Meiwes (last access: May 2009).

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 Paternalism and Personal Identity 105

complementarily drawn to the idea of being hurt and consumed. The event took
place and was video-recorded at length by Meiwes. Some time later, as his meat
stock diminished, he advertised again for another complementary partner, and to
one skeptical respondent detailed his previous experience. That person reported him
to the authorities. Eventually sentenced to life imprisonment, Meiwes later reflected
somewhat regretfully on the way in which he had allowed his cannibalistic proclivi-
ties to guide his conduct, pledging that he would now take it as one of his missions
to deter others.
An interesting and challenging feature of Meiwes’s case is that, unlike Corzine’s
in which a personal high priority value had been subverted by one of lower priority,
for Meiwes eating human flesh had come to have a high priority. We can assume
that for Brandes as well the idea of experiencing intense pain and being consumed
had come to hold considerable significance. Before he met with Meiwes, Brandes
drew up a will, obviously seeing the cannibalistic encounter as a major, life-culmi-
nating event. Whatever we may want to say about the appropriateness of the life
sentence that Meiwes eventually received, should a liberal countenance a law that
would prevent the kind of private pact into which they entered? Is it legitimate to
prohibit people – presumably for paternalistic reasons – from entering into self-
harming agreements that they deem important to themselves? And should others
involved be prosecuted for assisting in carrying out such agreements?
I believe that there would be strong public support for a paternalistic law that
would prevent people such as Meiwes and Brandes from satisfying their desires,
mutually consensual though they were. Of course, mere public support for such a
law would not in itself be sufficient to show it to be justified. The so-called “public”
has often been characterizable as Mill’s feared “tyranny of the majority.”23 Never-
theless, there seem to be features of the case that offer a reason for interference,
albeit features that introduce their own set of complexities.24 One in particular is our
sense – our liberal sense – of human dignity, which, though it includes a recognition
of autonomy as one of its distinctive features, is also embedded in what Mill speaks
of as our conception of “man as a progressive being.” What Meiwes and Brandes
set about to do (and accomplished), though it was chosen, offends against our deep-
est notions of what it means to be a progressive being: it offends against the raison
d’être of autonomy, not in a fashion that we might allow to people as one of the

23
MILL, On Liberty, Chap. 1.
24
I have tried to explore such arguments further in Paternalism and Human Dignity, in VON
HIRSCH, A., NEUMANN, U. (eds.): Paternalism in Criminal Law, Baden-Baden 2009
(forthcoming) (in German). An English language version is to appear in Criminal Law
and Philosophy. The views I express in this article have not gone unchallenged. See the
reply of Tziporah Kasachkoff, paired with the above references, and also HURD, H.M.
(2009): Paternalism on Pain of Punishment, in: Criminal Justice Ethics 28 (1), 56–59.

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106 John Kleinig

potential risks of “being let alone” but as the kind of challenge that would reflect
badly on the dignitarian project of liberalism.25
Neither approach – that which appeals to the complexities of personal identity,
and that which appeals to some notion of human dignity – will provide an easy case
for strong paternalism. But nor, for that matter will the doctrinaire argument against
all strong paternalism leave us comfortable. Perhaps that is as it should be. As T.H.
Green argued in his powerful if flawed liberal critique of “liberal legislation,” we
must develop laws not for the benefit of people as we may theoretically conceive of
them, but for “people as we find them.”26 And that is a much more fraught and
complex matter.

25
We might compare the challenge posed by such conduct with that posed by another
liberal paradox or dilemma – the toleration of intolerance.
26
GREEN, T.H. (1861): Liberal Legislation and Freedom of Contract, in: Works, ed. by NET-
TLESHIP, R.L., London 1888, Vol. III, 265–286.

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