When is the government justified in making laws that have no purpose other than to protect us against ourselves? Mayor Bloomberg of New York City ran headlong into this question last week when a judge struck down the New York City ban on the sale of “large sugary drinks.” For those who don’t follow U.S. local news, in September 2012 the New York City Board of Health, at the urging of Mayor Bloomberg, adopted a ban of the sale of sugary drinks larger than 16 oz. in restaurants, theaters, and food carts on the grounds that they encourage the over-consumption of sugar, hence obesity.

Even though obesity has become a major health epidemic in the United States, Mayor Bloomberg’s edict was met by strong opposition from the soft drink industry and vendors as well as by civil libertarians who maintained that the law was an unwarranted infringement on personal freedom. Last week a New York State Supreme Court judge agreed with the civil libertarians and issued a stay of the mayor’s ban on the sale of the large drinks.

The debate about the limits of governmental intrusion into the personal lives of its citizens is an old one. Actions of the state designed solely for the purpose of protecting us against ourselves are known as “paternalism.”* In the Anglo-American tradition it was the 19th century British political philosopher, John Stuart Mill, who formulated the most influential argument against paternalistic legislation. It was Mill’s view that unless the state can demonstrate harm to another, then it cannot justify the restriction of any citizen’s actions. In his own words from the essay, “On Liberty,”

. . . the sole end for which mankind are warranted, individually or collectively, in interfering with the liberty 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.**

Mill’s argument is now known as the “harm principle” and it is the libertarian’s best friend in the fight against the “nanny state.” Paternalistic legislation is everywhere and libertarians, by definition, are against it. Examples of paternalism are the laws and ordinances that:

1. prevent us from swimming when lifeguards are not on duty;
2. require us to wear seat-belts when in a car;
3. wear helmets when driving or riding on motorcycles;
4. require us to seek legal or medical advice only from licensed professionals;
5. buy only drugs that have been approved by the Federal Drug Administration;
6. enforce and maintain morality by the restriction of certain commercial and entertainment activities at certain times (often referred to as “blue laws”); and,
7. prohibit moral vice such as laws against prostitution or the consumption of illicit drugs.

At first glance it would appear that the prohibited activities listed above harm no one except possibly the person who engages in them. But there are a number of philosophical arguments against Mill’s harm principle that undermine its initial clarity. The only argument I will raise here is simply that Mill nowhere adequately defines “harm.” Once we begin to examine the types of harm that can be inflicted on others, even if unintentional, the application of the harm principle becomes murky. The financial harm to another or to the community, for example, that can result from risky behavior on the part of a few of its members is evident. The loss of community property values that results from the presence of “moral vice” is also harmful, even though those engaged in the illicit behaviors argue that what they do is no one’s business but their own.

If Mill’s harm principle is not an adequate protection against paternalistic legislation, then what about the Big Gulp? Can its consumption be viewed as behavior that harms anyone besides those who drink it? It can be argued that  any community in which a large number of its members engage in unhealthy behaviors will ultimately adversely affect the entire community. Obesity has the potential to raise everyone’s health insurance rates, whether everyone is obese or not. Is that potential harm enough to justify the legal prohibition of large sugary drinks? Probably not.

At one time cigarette smokers claimed that smoking harmed no one but themselves, but empirical evidence supporting the dangers of second-hand smoke eliminated that argument. Consequently, smoking was no longer protected by the logic of the harm principle. The consumption of large sugary drinks is not in the same category as the smoking of tobacco. Unless there are immediate second-hand adverse effects associated with the consumption of large sugary drinks (What would they be?), it is unlikely that the courts will support Mayor Bloomberg’s appeal of the recent judicial decision against the ban.

This is a difficult issue. Mayor Bloomberg’s attempt to improve the health of his constituents is admirable. Large numbers of people increasingly make poor dietary choices that will ultimately adversely affect their communities.  Nonetheless, a program of health education directed toward consumers coupled with appeals for cooperation from vendors may be the more effective course to take.

No one likes being told what to do.

* “Parentalism” might be a better term.
**John Stuart Mill, “On Liberty,” in Cohen, Marshall. The Philosophy of John Stuart Mill: Ethical, Political and Religious (New York: The Modern Library, 1961), p. 197.