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

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 harmful 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 policy design and articulation.