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Health as an Intermediate End and Primary Social Good

Health as an Intermediate End and Primary Social Good Abstract The article propounds a justification of public health interventionism grounded on personal health as an intermediate human end in the ethical domain, on an interpretation of Aristotle. This goes beyond the position taken by some liberals that health should be understood as a prudential good alone. A second, but independent, argument is advanced in the domain of the political, namely, that population health can be justified as a political value in its own right as a primary social good, following an interpretation of John Rawls’s evolved understanding of such goods in his later works. The article sets the scene for these positions by highlighting how liberal theories focusing on freedom as non-interference, or making the harm principle the basis of legitimate public health interventions, undercut the capacity of the state to actively promote population health. The article points to theoretical resources on legitimacy and liberty—the ‘salient coordinator account’ of authority and freedom as non-domination—that may help avoid this risk. The role of reflective equilibrium incorporating incompletely theorized mid-level principles is emphasized to ensure that interventions are soundly justified. The application of these principles would ensure that interventions do not exceed the proper moral/political boundaries limiting the role of government. Introduction The fruitful dialogue between public ethics and political theory has been a prominent theme in recent volumes of Public Health Ethics. Steps by some Western governments to legally prohibit smoking by adults in some unenclosed public spaces, and other directive public health interventions, have brought into sharp relief debates regarding the legitimacy of such measures. Recent work by some liberal political theorists help crystallize a fundamental challenge to core public health functions when political freedom as non-interference is granted absolute primacy. The treatment of health as a prudential good alone by some liberal thinkers also brings into question some of the regulatory measures governments in developed nations have implemented on this reading. In the first section of the article I state why public health is relevantly a political matter at all. In doing so I lay the ground for the consideration in subsequent sections of the article on how moral, legal and political theories could underpin, or indeed, undermine the achievement of population health improvements through directive interventions. The focus of the second section of the article is the dispute on the nature of political liberty and its interplay with the legitimacy of state interventions to maintain and improve public health. I highlight how certain liberal theories that focus on freedom as non-interference, or that make the Millian harm principle the basis of public health interventions, undercut the legitimacy of the state to actively promote population health in the manner that some Western governments are pursuing. I explicate some alternative theoretical resources on legitimacy and the common good, namely, the ‘salient coordinator account’ of authority, that helps to avoid this pitfall. In the following section, I propound a justification of public health interventionism grounded on personal health as an intermediate human end (on an interpretation of Aristotle) in the ethical domain. I then give an account, in the next section, of population health as a primary social good in the domain of the political, employing the distinction between these domains made by John Rawls in his writings since the 1980s. These two sections stand on their own as ethical and political interpretations of health in their respective domains: one does not have to subscribe to the first to agree with the second, or vice versa. Constraints and controls on the powers of state intervention on public health nonetheless remain important. In the next section of the article, I therefore advance that a reflective equilibrium incorporating incompletely theorized mid-level principles can ensure that directive public health interventions are soundly justified. These principles, when applied, would ensure that such interventions do not exceed the proper political boundaries that rightly limit the role of government in citizens’ lives. Public Health Practice: An Inescapably Political Matter Why should ethicists be concerned about the interface of public health and political and legal theories? Should we not simply view public health practice as a clinical discipline, operating autonomously within the limits of familiar professional codes? Three reasons underpin public health practice as involving irreducibly political concerns. First, public health focuses on the health of persons within social groups or populations. The population is usually coterminous with a political society or an administrative unit of that society. The interventions are broad in nature and are preventative in aim rather than therapeutic; thus, the normal direct relationship of care between a patient and a clinician is absent. The benefits of interventions are manifest at the population level via epidemiological data but difficult or impossible to attribute to specific individuals. As Geoffrey Rose wrote ‘[g]rateful patients are few in preventive medicine, where success is marked by a non-event’ (Rose, 2001: 432). Citizens will likely be unaware that they have improved health resulting from an intervention. This non-connection between the intervention at the macro level and personal benefit at the micro level we might call a ‘paradox of anonymous benefit’, a twin brother of Rose’s ‘prevention paradox’. The reason why this paradox might count as a political dimension of public health is precisely the lack of discernible tally between individual treatment for individual benefit, a tally that is perceptible in the healthcare domain. Secondly, as is now well established by the work of scholars such as Michael Marmot, the social determinants of health are significant, indeed more significant than the quantum of healthcare accessed by citizens (Marmot, 2015: 33–6). Population health is closely related to social structures and the distribution of resources, opportunities and conditions such as housing, education or the environment. These determinants are so consistent that the social gradient of health is clear across a range of societies. Outcomes are thus not the simple by-product of choices concerning risk and protective factors such as smoking or diet. The political relevance of this epidemiological fact is that social conditions driven by political and economic factors have a strong bearing on the health of citizens, some of which affect them during childhood. By the time people reach the stage of political participation as adults, they may well already be disadvantaged by adverse morbidity and mortality rates (a ‘latency effect’) (Marmot, 2015: 112–26). Finally, public health interventions are inherently political because many require, to a lesser or greater degree, legal compulsion (in the USA under the ‘police powers’ of the States). Basic health protection and environmental hazard functions are enabled by the promulgation and enforcement of law and public funding via taxation. This raises issues concerning political authority and legitimacy vis-à-vis citizen compliance with those directions, the focus of the next section. Political Liberty and Coercion: The State as the ‘Salient Coordinator’ of Public Health Public health laws restricting behaviour are generally applicable to all citizens and subject to criminal or civil penalty if transgressed. These laws sometimes regulate areas of life that some citizens believe should be matters of personal choice. Yet matters such as immunization programmes and communicable disease control measures generally require state coordinated action to be effective, as reliance on voluntary action alone by individuals would not assure the consistent application of public health measures across a population. The basis of coercive measures to address these distinctive ‘coordination problems’ in public health invokes scrutiny from liberals, particularly those holding to a strong form of liberal neutrality or the robust priority of basic personal liberties over social or communal goods. In this regard, liberal theories generally seek to address what some have called ‘liberalism’s dilemma’, namely, the ongoing tension between, on the one hand, the universal applicability of law and the irreducible plurality of human understandings of ‘the good life’, on the other (Rasmussen and Den Uyl, 2005: 284–5). A particular challenge arises when, despite cognizance of this perduring dilemma, citizens agree that the state needs to enact a common framework in a public policy domain affecting them communally, yet disagree on the concrete form and invasiveness of state action in that domain. This state of affairs is what Jeremy Waldron calls the ‘circumstances of politics’ (Waldron, 1999: 102). These circumstances appear to be prevalent in matters concerning public health policy and practice. Citizens often agree that some common framework is required for the protection and promotion of health by the state (i.e. that there is a ‘coordination problem’ requiring a response), but differ on such matters as the nature and extent of any legal enforcement of, for instance, smoke-free zones or the degree of coercion required to ensure an effective childhood vaccination regime. Many of these circumstances of politics can be placed at the door of so-called ‘reasonable’ disagreement, in that they reflect differences in the final ends chosen by citizens, while they nonetheless may be committed to the shared goal of achieving a just and democratic society (Rawls, 2005: xvi–xvii). The circumstances may also reflect what one philosopher calls the broader ‘normative openness’ of practical rationality, allowing a broad range of normatively permissible responses to particular practical scenarios (Murphy, 2006: 59–60). On this reading many differences between citizens on the most appropriate political course of action in response to a public policy challenge may be shallower than substantive disagreement about the content of morality. Disagreement may simply reflect a contingent non-coincidence of views regarding the specific design or concretization of a law or public policy (what Aquinas called determinatio) (Waldron, 2010: §§I–V), or disagreement on the content or application of certain principles of political justice. Disagreements of this shallower nature concerning public health interventions might include, at one end of the scale, different views on the most effective way to package cigarettes to inform users of risks (and deter usage), and to the precise weightings applied in a proportionality analysis (to calibrate the degree of directivity in public health interventions) at the other. For theorists including John Finnis, such contingent disagreement, as well as the prevalent selfish pursuit of private interests by citizens, is considered a near-constant in social life. This, in turn, renders almost impossible the achievement of unanimous agreement and compliance among citizens on clear social rules on important communal matters that are not at the same time enacted in law. The authoritative and legitimate role of binding law and state action in coordinating agency to achieve necessary political common goods within a society derives from this persisting contingent disagreement and non-cooperation motivated by selfishness (Finnis, 2011a: §IX;, 2011b: Ch. 2 and 3; cf., Murphy, 2006: §§4.6–4.7, §5). A test case may help disentangle some of these issues. The establishment of smoke-free zones across the entire site of public hospitals by the Scottish Government, and similar legal powers proposed by the Welsh Government, is such a case. These measures prohibit, in the Scottish case at least, smoking by all patients (including inpatients), staff and visitors in unenclosed areas such as gardens on the hospital site.1 The hospital must, as a quid pro quo, put in place comprehensive smoking cessation schemes for patients and staff. In the case of the proposed Public Health (Wales) Bill, Ministers in Wales would be able to use such regulatory powers to enforce wholly unenclosed smoke-free zones if they, in the words of the Bill, are ‘satisfied that doing so is likely to contribute towards the promotion of the health of the people of Wales’.2 Legitimacy can be defined for our purposes as the exercise of power by a regime in accordance with rightful authority. Legitimate rule, at the very least, would make violent sedition against the regime lacking in pro tanto justification. Political legitimacy is often taken by liberal theorists to be intimately connected with political freedom. The qualified denial of the authority of the state to interfere in the decisions of citizens in pursuit of their chosen final ends is common among liberals. One such theorist is Gerald Gaus, who argues that in liberal theory, ‘the onus of justification is on those who would limit freedom, especially through coercive means [as freedom as non-interference is said to be normatively basic for liberals]. It follows from this that political authority and law must be justified, as they limit the liberty of citizens’ (Gaus et al. 2015: §1.1). Gaus disavows the label libertarian (let alone anarchist) for his approach, arguing that his position is the lineage of Locke, Mill and their modern liberal descendants. Gaus holds that unless citizens see that they have ‘sufficient reason’ to obey laws that have a coercive effect on them, then those laws are not legitimate and generate no obligation for citizens to obey them (Gaus, 2009). His position is not premised on religious freedom as such, as many exemptions to child immunization laws currently are framed in the USA and elsewhere. These measures would not be legitimate even if they were approved by an elected legislature, following deliberation and expert evidence, deeming such a public health intervention (involving some degree of coercion) to be manifestly beneficial to the health of the population. On the most optimistic estimation, it may just be possible, within the Gausian framework, to justify the state provision of a public health function to control highly communicable diseases, severe environmental hazards or other pressing civil contingencies. These restricted interventions might be publicly justifiable on the basis that such services are examples of pure public goods that voluntary provision simply could not provide without the risk of free riding threatening the viable delivery of the function, thus breaching Gaus’s own normative ‘reversibility requirement’ (Gaus, 2011: 299ff).3 Each citizen would thus have a pro tanto reason for the state to act, with compulsion if necessary, to secure the provision of such goods. It is not only neoclassical liberals who may query the use of directive state interventions to promote population health. Lubomira Radoilska’s approach to public health interventions, which she takes to be faithful to the position of John Rawls (rather than neo-Lockeans), places the justification of state public health interventions squarely on the protection of citizens’ autonomy and personal liberties through the operation of the ‘harm-principle’ formulated by J. S. Mill (Radoilska, 2009: 142). Aside from preventing manifest harms to health or a third-party violation of negative liberties, her position permits no role for the use of coercive state apparatus to promote population health. Interventions on mandatory smoke-free zones in all unenclosed areas on hospital sites would presumably have no chance of gaining consent through the ‘sufficient reason’ of each citizen (Gaus’s position), as some smokers (and non-smokers) would presumably claim that their behaviour in that context is self-regarding and has no adverse impact on others. It seems all but certain that broader public health functions including screening services, smoking cessation schemes and other health promotion campaigns would be left to voluntary charitable action. It would be reasonable to assume that, in such circumstances, there would be a significantly higher risk that herd immunity for some infectious diseases would not be reached. Similarly, we may reasonably conjecture that the invidious societal repercussions of public health challenges such as obesity, or the personal and economic costs of missing early treatment of screenable diseases, may well be greater over time if a system of pure voluntarism was adopted. The radicalism of Gaus’s position does not stop there. Public health interventions are funded generally by coercive taxation. Gaus is clear that citizens must support the ends supported by taxation for the coercive means of funding public services to be considered legitimate (Gaus, 2009: 91). The right of veto on taxation that citizens would have in this framework would have major repercussions on the funding of public health agencies, even in their most basic functions. For it is beyond dispute that the core infrastructural demands of financing the establishment of a public health agency would necessarily require taxpayer resources. Short of a pure public good scenario, putative objectors—the conscientious bohemian hedonist—might claim that they deliberately live their life hic et nunc and would rather ‘chance it’ by using their earnings to enjoy life rather than submit to taxation covering societal risks through taxpayer-funded health protection services. In the Gausian framework, it would not be for the state to gainsay such reasoning by use of coercive measures (Gaus, 2009: §3). It is notable that Gaus follows many analytical legal and political theories, not sharing his (ultra-)classical liberal position, in holding that political authority is not based on self-standing reasons of state, but that its ‘normal justification’ rests on the authority’s ability ‘to better conform [citizens] to their own reasons’. Political reasons, in this view, are thus ‘subordinated’ to ‘ordinary individual morality’ (Raz, 1986: 72–3). Raz and Gaus’s positions, though differing widely in their understanding of political liberty, hold that the focus of legitimate political authority is ‘the justification of a normative power on the part of the state to change a person’s normative situation’ (Perry, 2013: fn.4, 1). This is a different general approach, as Stephen Perry notes, to that outlined by the likes of John Finnis cited earlier. In this ‘salient coordinator’ theory of authority, the initial focus is on the justification of the state’s power to use coercion against its subjects, based on the political community’s role as the only viable coordinator of common goods. Only then, and derivatively, does the theory articulate an account of justification for the ‘state’s powers to change its subject’s normative situation’ with its understanding of presumptive legal obligation (Perry, 2013: fn.4, 2). The ‘paradox of anonymous benefit’, identified in the previous section, is a useful illustration of this theoretical disjuncture between the normal justification and salient coordinator theories. Under the former theory, agents simply might not recognize that such a possible or probable (anonymous) benefit has any normative purchase on them as individual agents in generating reasons for compliance. But in the salient coordinator account, citizens’ varying determinations of whether this real but anonymous benefit is significant enough for them to comply individually with a law, or pay a tax, does not undermine the legitimate role of the state in providing services that can only viably be provided on a binding basis. This is the case because the baseline legitimacy of state action to provide such health protection and promotion services (as a common good) to citizens has, on this account, been established antecedently. This indicates that further consideration be given to the role of the common good in relation to public health ethics, not least since the concept has been a crucial one for the legitimacy of public health practice, since it was made the locus of the key US constitutional case on mandatory vaccinations over a century ago.4 Some recent attempts in public health ethics to find a via media between an organic notion of the common good and a reductively individualistic one (Jennings, 2007: 51–5) have lacked the benefit of the full resources of Anglophone analytical philosophy. Public health ethicists frequently direct their attention to the issue of ‘common pool’ resources and pure public goods which, though crucial theoretical issues, are but one aspect of a wider notion of the common good. Though we cannot here explore this fecund literature here, reflection on the nature of the political common good (or the ‘public interest’) has a distinguished legacy spanning varied philosophical schools since the 1960s (Barry, 1965: §§XI–XIV; Raz, 1986: §§III–IV; Finnis, 1996, 2011a: §V.8, §VI, §VIII.4; 2011b: §VI; Pettit, 2004; Murphy, 2006: §3). Personal Health as an Intermediate End in the Ethical Domain My aim in this section is to outline an ethical basis for the valuation of health as a practical end/good. This rationale can be accepted or not as a philosophical argument rather than a position focused on political values. It responds to those that deny that health as normal functioning can be said to be more than a prudential consideration. This argument links to the domain of the political only indirectly, as some liberal theorists following the position of John Rawls, rather than Gerald Gaus, query the use of coercive public health interventions transgressing citizen’s basic personal liberties when justified on the basis of health as a value or good. Ludomira Radoilska, for one, writes of those considering health as a basic value as positing health as ‘overarching good’, which should instead be viewed as a prudential good alone (Radoilska, 2009: 135, 137).5 On a similar basis Daniel Weinstock strikingly describes those considering health as a value as propounding a doctrine of ‘healthism’ (Weinstock, 2015: 176).6 I argue that such interpretations assume that those positing health as a basic value implicitly treat it as a maximand, a person’s ‘dominant’ final end,7 or what Charles Taylor calls a hypergood.8 Here I would propose a way to avoid the Scylla of healthism and the Charybdis of health as containing nothing more than instrumental value. This approach fundamentally queries the putative ‘dualism of practical reason’ adopted in much modern moral philosophy, upon which this dichotomy rests. This dualism involves the clear bifurcation of prudential from moral reasoning, where moral reasons alone are obligatory and ‘right-making’, while the prudential is connected to instrumental reasoning (generating, in Kantian terms, only non-obligatory hypothetical imperatives). In this picture, prudence is limited to means-end reasoning concerning self-regarding acts, whereas moral reasoning relates to other-regarding actions.9 Henry Richardson helps to clear some conceptual ground here by recalling that Aristotle conceived some ends as being ‘final’, while not being complete, ultimate ends. Final but not complete ends—intermediate ends—play a dual role in practical reasoning as ends (i) generating value in their own right for the agent, while also serving as a (ii) necessary means to attaining further final end(s), that is, those ends considered (yet) more complete and ultimate (Richardson, 1992: §§4–6; Richardson, 1994: §§III-IV, §§IX-X, Richardson, 2015: 164–65; also Annas, 1993: 34–42).10 These intermediate but non-ultimate final ends give both instrumental and noninstrumental value to the agent when attained, at least on ‘inclusive’ readings of Aristotle’s conception of human flourishing.11 I would hold to the philosophical defensibility that health as normal functioning could be considered one of these intermediate ends, though an extended dialectical argument along these lines is beyond the scope of this article.12 Here health as normal functioning could be considered an intermediate end and thus understood as a noninstrumental component of well-being inter alia (that is, among other incommensurable components, within an ultimate end). Persons, on this view, may value their health without prejudice to deeper agreement on ultimate ends that may have an existential, metaphysical or religious aspect. In this picture well-being is ‘associated with the actualization of the powers of thought, emotion, and sociality inherent in human nature; the centrality of the process of socialization through which these powers emerge’ and the pleasure taken from the exercise of these powers, while it ‘leav[es] aside’… [Aristotle’s] ‘thesis that human beings have an essence’ (Kraut, 2007: fn.8, 137–8). A healthy life is thus a fitting or worthy development of the person as a rational animal. I would argue that a form of ‘developmentalism’, as Richard Kraut calls his (objectivist) understanding of well-being (Kraut, 2007: §§35–54), does not fall into the category of a naïve or outmoded essentialism, for three reasons. First, as Terence Irwin reminds us, the human goods that fulfil human ends, from a perspective of a normatively reconstructed form of Aristotelian naturalism, need not be seen as moral goods per se (i.e. involving ‘moral properties’ in analytical terminology) nor understood as deriving from a ‘Chain of Being’ metaphysical anthropology or a biologically determined understanding of human nature (Irwin, 2009: §§1390–1402). Following an interpretation of Aristotle (and Aquinas), the end-as-good is presented to the will as an intelligible and desirable (i.e. choice-worthy) object of practical reasoning: i.e. the (proximate) point of the action. This end-as-good, in turn, actualizes a human potentiality/capacity, reflective of human nature, when taken up in praxis.13 This order of knowing—from desirable object (aimed at an end-as-good), to the act, to the human potentiality (Finnis, 1983: 21)—inverts the epistemic relationship connecting human nature and praxis familiar from the much-criticized ‘essentialism’ of scholastic and neo-scholastic philosophy.14 Against the scholastic position, or that of subjectivist theories of well-being, I argue that we can view the agent’s promotion of her own health as reflecting a basic human capacity for life and vitality that instantiates a human good in action. Achieving a healthy life is an end and good-to-be-pursued not requiring prior speculative inquiry to identify it as choice-worthy, as such good(s) are capable of being apprehended immediately in practical reasoning in this philosophical account (Finnis, 1983: §§I–II).15 Secondly, the manner in which any end is pursued by an agent is open to the rightful spontaneity and reflectiveness of each person’s rational ‘second nature’. Persons may therefore pursue some ends with greater vigour or devotion than others, as a reflection of their unique personality, circumstances and preferences. As John McDowell has argued, a viable naturalism must not be a ‘bald naturalism’ underpinned by a crude determinism of empirical laws (McDowell, 1994: 66–86; also Kraut 2007: 146–7). Contemporary naturalists thus recognize the importance of human autonomy in the exercise of practical freedom in their developmental understanding of well-being (Kraut, 2007: §53; also Irwin, 2011), seeing this as reflective of a free will and adult intellective powers of practical reasoning, rather than as a transcendental concept. Thirdly, contemporary presentations of Aristotelian naturalism incorporate important narrative, sociological and psychological insights concerning human nature developed in modernity, including those derived from the human sciences (MacIntyre, 2016: Ch. 4 and 5). Readers may have already noted the possible consonances between this Aristotelian–(Thomist) approach and Martha Nussbaum’s version of the capabilities approach with its own neo-Aristotelian bearings, or the related understanding of health capability developed by Shridhar Venkatapuram (2011). Nussbaum is well known as a philosopher for the espousal of an understanding of human beings and their functioning that eschews reliance on a metaphysical anthropology, seeing a distinctively internal basis for human ethics and truth (Nussbaum, 1992; Nussbaum, 1995). She makes explicit the value of health in the domain of the political through the notion of capabilities. In her capabilities approach, human capacities or potentialities are conceptualized in the political domain as opportunities for a free and fulfilling life expressing the equal dignity and worth of persons (Nussbaum, 2011: 29–35). Bodily health is one of the 10 central capabilities. Nussbaum’s approach may not be the only basis that we could treat health as a human end or good, especially when one considers how goods may be valued and promoted in the distinctive ‘domain of the political’ (Rawls, 2005: 11, 38, 43, 125), the concern of the next section of the article. Population Health as a Primary Social Good in the Political Domain Moving to the domain of the political, the example of smoke-free hospital grounds is a helpful one to illustrate the issue concerning personal liberty surveyed earlier. It is difficult to see how the enforcement of a ban on patients smoking in the garden of a public hospital can be justified on the same basis as the now widespread bans on smoking in enclosed or semi-enclosed workplaces, which involve the harm principle. Some citizens hold that this is not a legitimate role for the state as no manifest harm is inflicted on non-smokers and the choice to harm one’s own health through smoking, as an otherwise lawful activity, is a personal one. Such interventions would seem to be instead predicated on, as the wording of the Public Health (Wales) Bill would imply, the political value of promoting population health. Norman Daniels, working within a framework outlined in John Rawls’s form of political liberalism, maintains that Rawls’s ‘fair equality of opportunity’ principle can justify state action to secure the fair distribution of health outcomes, including forms of public health intervention (Daniels, 2007). Daniels proposes that the wider social opportunities that help to determine health status should be included in this consideration, citing the social determinants of health. He applies the fair equality of opportunity principle to both the provision of clinical healthcare and public health services. Though this is a coherent outworking of Rawls’s principles of justice, I outline a different basis—population health as a primary social good—to justify public health interventionism. This basis helpfully mirrors and complements in the political domain the ethical argument articulated in the previous section, though one need not endorse the axiological argument about intermediate ends in that section to accept what follows. Primary goods are those goods that persons, in the device of representation that is John Rawls’s original position, would choose to maximize irrespective of their final end(s). They are therefore an input into the constructivist procedure not filtered out by the ‘veil of ignorance’ that is part of the structure of the device (Rawls, 2005: §§V.3–4). In Rawls’s later political liberalism, the primary social goods are not attached to an ethical theory of well-being—a comprehensive conception of the good—but are part of a political conception of the person. Rawls earlier described health as a ‘natural’ primary good, in distinction to the primary social goods in A Theory of Justice (Rawls, 1971: 62). I would, however, argue that the clear epidemiological evidence about the social determinants of health, which were not widely known outside epidemiology when A Theory of Justice or Political Liberalism was written, means that we should consider population health to be a primary social good as well as personal health being a primary natural good.16 When Rawls revisited A Theory of Justice’s understanding of the primary goods in the 1980s in lectures such as ‘Kantian Constructivism and Moral Theory’, he broadened the index of primary goods to include not only ‘all-purpose means’ for people to pursue their rational plan of life, such as income and wealth, but added to the primary goods those ‘things [which] are generally necessary as social conditions’ (Rawls, 2001: 88). The primary goods, in these later works, are described as constituting a ‘partial conception of the good’ (Rawls, 2001: 60), reflecting the ‘needs’ of persons as citizens (Rawls, 2005: 187ff). In the view presented here, a reworking of political liberalism could include population health as a ‘generally necessary social condition’ (as Rawls put it). Critically, the point here is that there is no necessity to postulate health eo ipso as a perfectionist value in the political domain, which for some theorists would require an illiberal pursuit of the (ethical) doctrine of healthism.17 Indeed, avoiding such a postulation would have been important for Rawls as he clearly resisted, including in his later works, basing the primary goods on what ‘anyone’s idea of the basic values of life [is] … however essential their possession’ may be (Rawls, 2005: 188). At the same time, Rawls did not rule out permitting some limited forms of state coercion in the furtherance of perfectionist values to be legitimate, so long as those measures did not contravene basic human rights, the liberties contained in the Principles of Justice or basic justice established by a liberal political conception of justice.18 Martha Nussbaum takes a somewhat different approach to the manner in which the promotion of capabilities can be rendered compatible with liberal concerns. She views her theory as a species of the broader genus of political liberalism (following Rawls’s template) while noting the critical importance of the distinction between capability and actuated functioning. In Nussbaum’s theory, citizens have a free choice as to whether they wish to exercise a capability (such as health capability) in functioning. Despite Nussbaum’s caveat on functionings, liberals such as Gaus may object that making available a requisite level of entitlement to the central capabilities in a political society through the provision of public services is impermissible if some individual citizens lack sufficient reason to assent to coercive taxation as the basis of funding them. (Here we encounter a pivotal difference between Rawls and Nussbaum’s political liberalism and Gaus’s justificatory liberalism.) It is noteworthy that Nussbaum suggests that the central capabilities ‘could figure as an account of primary goods’ (Nussbaum, 2006: 116). Others have abandoned such tentativeness, arguing that the central capabilities should be seen squarely as the primary goods, replacing Rawls’s own articulation of an index of primary goods (Brooks, 2015: 159–65). Thom Brooks’s suggestion does not seem an alien one to Rawls’s later ‘political’ development of the primary goods, as Rawls’s subjective ‘rational-desire’ account of moral goodness in A Theory of Justice (with its ‘full’ and ‘thin theory’ elements) gives way to a ‘political conception of the person’ with the two moral powers, dispensing with the need for the ‘full theory of the good’ (Rawls, 1971: 27, 79; cf. Rawls, 2005: 178–80). ‘Goodness as rationality’, which had a broad and multifaceted role in Rawls’s A Theory of Justice, is limited to the thin theory of the good in the later Political Liberalism, which accounts for the pursuit-worthy nature of the primary goods for all agents in the original position (Weithman, 2015: 829–30, 833–7). This may seem like arcane exegesis at first, but a friendly amendment of Rawls’s position in this manner might allow for health to be incorporated coherently into a broad understanding of political liberalism. It would enable an understanding personal health (as normal functioning) to be viewed, qua population health in the political domain, as a primary social good bearing political value for all citizens, irrespective of their ultimate ends. In the original position, we therefore interpret citizens’ desire for a healthy life as rationally maximizing the primary social good of population health, rather than the pursuit of a perfectionist value. Crucially, this status as a primary social good for population health would allow pro tanto political justification for public health interventions to maintain and enhance the health status of persons at the societal level. This would not preclude personal health in the ethical domain (i.e. within the citizen’s comprehensive doctrine) being seen by the agent as a basic value. This would, in the example set out in the previous section, helpfully preserve the twofold understanding of intermediate ends rearticulated by Henry Richardson (from Aristotle): that such ends give both instrumental value (population health as a primary social good of citizens) and noninstrumental value (as personal health as a basic value in the ethical domain). This approach would doubtless raise questions from liberals of various stripes concerning the potentially unrestricted nature of such interventions and their prospective infringement of liberty. I would offer two responses to this challenge. The first is to call on the resources of neorepublican theory to help break a putative impasse on the nature of political liberty.19 Leading neorepublicans, such as Philip Pettit, view themselves as ‘republican liberals’, not theorists posing a challenge to liberalism ad extra (Pettit, 2012: fn.8, 11). As is now well-aired in the public health literature, neorepublicans hold to a third concept of liberty—non-domination (i.e. the absence of a capacity for the exercise of arbitrary power by a body or agent over another person)—departing from the previously ubiquitous twofold Berlinian interpretation of freedom as enabled self-mastery (positive liberty) or as non-interference (negative liberty). If such a definition of political liberty is adopted, then we can begin to understand that a public health intervention securing the common good of the community through the directive promotion of population health should not be viewed as an arbitrary infringement of liberty, even if it were to interfere with the agent’s (negative) liberty to choose in an unrestricted manner. The second response to a liberal fear about unrestricted public health interventionism is to propose principles that would regulate or constrain it in practice. This is in the best traditions of constitutionalism and the notion of limited government. It is to this task that the next section is devoted. Limiting Interventionism: Reflective Equilibrium Incorporating Mid-Level Principles Liberals will rightly query an unrestricted and unqualified justification for coercive intervention to improve the health of citizens. The role of practical principles in regulating state powers of directive intervention therefore has an important place in public health ethics. In this section, I look at the role of mid-level principles (within reflective equilibrium) and human rights as a way of effectuating this limitation. Proposals for directive public health interventions are to be tested against these principles (e.g. proportionality) and against any potential transgression of human rights (including religious freedom), as defined in the familiar international conventions. When acting in accordance with these restraining principles and rights citizens may be assured that such interventions are not arbitrary and are exercised within due limits. Reflective equilibrium, first brought to prominence by Rawls, is now a staple method in bioethics and more recently in public health ethics. Though doubts have been expressed about reflective equilibrium (Latham, 2016: 140–2), I outline how it can be a useful approach in applied ethics and politics. Reflective equilibrium for Rawls is a dynamic process where coherence is brought iteratively between principles and one’s intuitions or judgements on sound practices. He openly acknowledges that reflective equilibrium is an ongoing process, not one that reaches a static end point (Rawls, 2005: 385). Reflective equilibrium therefore allows agents to evaluate the adequacy of moral principles or theories by confronting them with considered judgements relating to practice (Mikhail, 2011: 28–9). Through the notion of wide reflective equilibrium, the principles themselves can be changed or amended if the person believes that the disequilibria between them and their practical judgements are caused by inapt or erroneous principles (Rawls, 1971: 49; Rawls, 1975: §II). Some ethicists see reflective equilibrium as sharing key features with the classical dialectical method and is a modern and apposite understanding of Socratic questing and questioning about how we live our lives (Nussbaum, 2011: 77–9). Others see reflective equilibrium as a part of Rawls’s long-term pursuit of a solution to descriptive and normative adequacy, a metaethical inquiry (Mikhail, 2011: 28). One thing is clear: reflective equilibrium is not a process of deduction where (public health) practices are derived from (a political) theory as conclusions from premises.20 My own judgement is that the incorporation of mid-level principles within reflective equilibrium is particularly helpful in the political context. Mid-level principles, as set out by Michael Bayles, are principles relevant to applied ethics (including in medicine) and law that act as a bridge between ‘a fundamental norm’, value(s) or theory to the empirical circumstances of particular cases and the practices/rules that may regulate them (Bayles, 1984, Bayles, 1986). Though they are general in scope, mid-level principles do not have to be strictly universal nor serve immediately as hard-and-fast rules, though they may be used to generate rules that help decide or inform particular judgments, especially in law (Bayles, 1986: 57–8). Ethicists working in the field of public health have referred to similar typologies of principles as ‘operating principles’ (Lee, 2012: 5). An advantage of mid-level principles, as I interpret them, is that they depend only on what have been called ‘incompletely theorized agreements’ which operate in a similar way (in constitutional law) in the work of the legal philosopher Cass Sunstein (Sunstein, 2007: 1–4). In the case of mid-level principles, this is because these principles are defeasible, not logically deduced from the fundamental norm or meta-theory (Bayles, 1984: 110). Such mid-level principles do not include within them the deeper theoretical content on distributive justice or on metaphysical controversies. Incomplete theorization in this context allows public health practitioners and citizens to work from principles useful to them, without being unduly diverted and divided by differences they have on fundamental philosophical or religious matters. Beauchamp and Childress, from the bioethical perspective, see mid-level principles as flowing from a ‘common morality’, though I would maintain that we do not have to assent to the existence of such a contested notion to perceive the usefulness of mid-level principles beyond bioethics (Beauchamp and Childress, 2001: 401–7). Their four prima facie principles for bioethics (autonomy, non-maleficence, benevolence and justice) are examples of such principles applied to the specific medical/clinical context. Given the wider and more political context of public health, it is justifiable to invoke a broader range of mid-level principles than the four identified by Beauchamp and Childress. In my understanding, we use a three-tier schema representing a reflective equilibrium in relation to public health ethics (see Table 1). The first tier involves more or less fully theorized moral theories or first principles. These fundamental theories include within them are clear and contested metaethical commitments. These high-level principles are subject to adjustment or rejection if the citizen employs wide reflective equilibrium. Table 1. A schematic wide reflective equilibrium incorporating mid-level practical principles and intermediate goods Theory/first principles/ comprehensive doctrines  Objective list/basic goods theories  ‘Dominant’ end eudaimonia  Hedonic welfare  Religious/theological ends  The Realm of ends  Including metaethical premises on well-being  (John Finnis, Mark C. Murphy)  Philosophical contemplation (certain interpretations of Aristotle)  (Crisp, 2006)  Based on revealed sources  Persons as authors and addressees of universal moral laws valuing people as ends-in-themselves (Kant)  Mid-level principles  Practical principles: e.g. proportionality (e.g. ‘least restrictive means’), equity (judgements on necessary ‘exceptions’ to rules), parsimony (e.g. Occam’s razor) and precautionary principle    Intermediate ends/goods: Health as normal functioning, housing, education, sociality/afflation, physical security, etc.    Moral principles: e.g. Harm principle, priority of persons principle (i.e. human dignity principle), reciprocity and transparency    Political principles: e.g. common good principle, subsidiarity, solidarity, civility, sustainability for future generations principle and efficiency principle    Bioethical principles: e.g. patient autonomy, benevolence, non-maleficence and justice    (Relevant) fundamental human rights: e.g. freedom of conscience, freedom of religion and right to privacy    Considered judgments on practice: Exemplified by ‘legitimate’ state public health interventions  Compulsory public health interventions (e.g. quarantine and ‘removing the pump handle’)  ‘Proportionate Universalism’ in addressing social gradient (Macdonald et al. 2014)  Legal restrictions on harmful products (including trans-fat bans or bans on smoking in enclosed spaces)  Enforced labelling of harmful products (tobacco and alcohol)  Child vaccination requirements for public school registration (in US states), contractually mandatory vaccinations for clinicians in healthcare settings  Theory/first principles/ comprehensive doctrines  Objective list/basic goods theories  ‘Dominant’ end eudaimonia  Hedonic welfare  Religious/theological ends  The Realm of ends  Including metaethical premises on well-being  (John Finnis, Mark C. Murphy)  Philosophical contemplation (certain interpretations of Aristotle)  (Crisp, 2006)  Based on revealed sources  Persons as authors and addressees of universal moral laws valuing people as ends-in-themselves (Kant)  Mid-level principles  Practical principles: e.g. proportionality (e.g. ‘least restrictive means’), equity (judgements on necessary ‘exceptions’ to rules), parsimony (e.g. Occam’s razor) and precautionary principle    Intermediate ends/goods: Health as normal functioning, housing, education, sociality/afflation, physical security, etc.    Moral principles: e.g. Harm principle, priority of persons principle (i.e. human dignity principle), reciprocity and transparency    Political principles: e.g. common good principle, subsidiarity, solidarity, civility, sustainability for future generations principle and efficiency principle    Bioethical principles: e.g. patient autonomy, benevolence, non-maleficence and justice    (Relevant) fundamental human rights: e.g. freedom of conscience, freedom of religion and right to privacy    Considered judgments on practice: Exemplified by ‘legitimate’ state public health interventions  Compulsory public health interventions (e.g. quarantine and ‘removing the pump handle’)  ‘Proportionate Universalism’ in addressing social gradient (Macdonald et al. 2014)  Legal restrictions on harmful products (including trans-fat bans or bans on smoking in enclosed spaces)  Enforced labelling of harmful products (tobacco and alcohol)  Child vaccination requirements for public school registration (in US states), contractually mandatory vaccinations for clinicians in healthcare settings  Mid-level principles and intermediate goods populate the second tier of the schema. As I view them, mid-level principles can be categorized as practical principles (aiding sound practical judgement on particulars), moral principles (aiding decisions on substantive matters of just/unjust treatment between persons) or political principles (relating to decisions regarding public policy and positive law). We may also specify these mid-level principles by practical context, hence the reference to the four bioethical principles in this tier. Human rights, though not principles per se, can also be seen to play an analogous role in spanning the gap between theory and practice.21 Let us take two examples of a mid-level principle for illustration. The principle of proportionality might be an example of a practical principle, in that it requires experience and practical wisdom to calibrate judiciously effective action in the face of a particular challenge. A broad proportionality principle, in this public health context, might be defined as: act to tailor interventions judiciously to the objective/end sought; using only those means clearly necessary to achieve the desired population health outcome.22 Citizens and their legislators may use this principle in their deliberations on coercive measures that at first glance appear disproportionate, such as the recent proposal in Russia to bar people born in 2015 or after from being sold cigarettes.23 Proportionate judgment will also be required in giving specific weightings for interventions focused on a socially disadvantaged target group vis-à-vis the wider population within a policy of ‘proportionate universalism’ designed to reduce a society’s social gradient in health outcomes (Macdonald et al. 2014: 4). Too low a weighting would render the targeted action ineffective, and too great a weighting would render the universalism of the policy meaningless. Secondly, the ‘common good principle’ is one that is also relevant as a mid-level political principle, which we might summarize as: ‘each person is bound to do his or her share for the common good’ (Murphy, 2006: 86). We can usefully define the political common good, to which we are expected to contribute our share, as ‘the whole ensemble of material and other conditions, including forms of collaboration, that tend to favour, facilitate, and foster the realization by each individual of his or her personal development’ (Finnis, 1996: 5). This ensures that we all, in some concrete manner, duly harmonize the pursuit of our personal good with that of the wider political community and its members. Finally, the lower tier in the schema represents considered judgements on practice, which are public health interventions we feel secure in supporting as normatively justified. Conclusion The matters addressed in the article have gone to the heart of some pivotal and controversial issues of method at stake in the interface between public health ethics and political theory. In key aspects, they mirror important debates in moral and political philosophy on perfectionism, neutrality and the objectivity/subjectivity of well-being. I have argued that intermediate ends and mid-level principles (the latter within reflective equilibrium) correlate usefully in relation to the justification of public health interventions. They do so in a way that does not gainsay disagreement at levels that invoke irreducibly metaphysical concerns. This position need not alarm moderate liberals who may fear the incorporation of an axiological programme into public law, as the incorporation of appropriate mid-level principles plays a normatively restraining role in guiding state action. These controls are important in ensuring that public health interventions are considered legitimate in the face of accusations of a pure perfectionism. Clear thinking is needed to address some of the complex public health ethical challenges that our societies face. These include nuanced controversies, including proposals for the mandatory immunization of boys who may otherwise (unintentionally) act as pathogenic vectors for the human papillomavirus (HPV) for girls who may go on to develop cervical cancer.24 Some saw such a proposal as imposing an essentially ethical position of medical altruism on boys that they, and/or their parents, should be given the choice of embracing voluntarily. Alternatively, we may see maintaining health, including through proportionately coercive measures, as an intermediate end of persons and a primary social good of citizens (viz. population health). Whatever one’s view in this example, these are questions that public health ethicists and political theorists should address together. Acknowledgements The author thanks Dr Thomas D. Waite for discussions on the nature of certain public health interventions in the UK. The views expressed in the article are the author’s alone; any errors remaining are the responsibility of the author. Footnotes 1. See Smoke-Free Hospital Grounds, Scottish Government website, 1 April 2015: http://news.scotland.gov.uk/News/Smoke-free-hospital-grounds-1823.aspx [accessed 24 January 2016]. 2. See Welsh Government, Public Health (Wales) Bill 2016: s.10(3). www.assembly.wales/laid%20documents/pri-ld10796/pri-ld10796-e.pdf [accessed 7 December 2016]. 3. It is worth noting that John Rawls, from a liberal perspective, saw a potentially coercive role for the state in providing those health services that can be considered pure public goods (Rawls, 1971: 266–70). Gaus does not see himself as a Rawlsian, however, and Rawls would doubtless differ with Gaus on some important issues. 4. The US Supreme Court, in Jacobson v Massachusetts 197 US 11 (1905), stated, in support of state intervention, that ‘government is instituted ‘for the common good, for the protection, safety, prosperity and happiness of the people’ (quoting the Massachusetts Constitution, pt. 1, art. VII). 5. Radoilska considers that health is underdetermined with regard to well-being and therefore cannot ‘satisfy the formal constraints of a final end’ (Radoilska, 2009: 138). 6. Weinstock here also articulates a different notion of ‘intermediate goods’ (such as health and education), noting the need for approaches to public policy to form a holistic ‘platform’ that incorporates the interrelationships that exist between health and other social conditions. 7. By a ‘dominant’ end, I refer to those interpretations of eudaimonistic ethics that hold that a person’s ultimate end is a single summum bonum that comprehensively supersedes all anterior final ends to the extent that all value is derived from the unitary, complete end. 8. Charles Taylor describes hypergoods as those ‘goods which not only are incomparably more important than others but provide the standpoint from which these must be weighed, judged and decided about’ (Taylor, 1989: 63). 9. Work by Paul Bloomfield (2014: 18–41) and Julia Annas (1993: §3) helps us to critically interrogate a hard-and-fast ‘dualism’ of practical reason. 10. The opaqueness of the terminology of ‘instrumental means’, ‘final ends’ and ‘ultimate ends’ that Richardson seeks to conceptually clarify is compounded by the fact that his disambiguated taxonomy of ends does not tally with the influential usage of John Rawls, or even some contemporary Aristotelian–Thomists, who at times have used the designation ‘final ends’ ambiguously, or as a marker for the ends represented by the content of ‘comprehensive doctrines’ (including religious doctrines) in Rawls’s later theory. 11. I do not claim that Richardson propounds an objectivist approach to well-being, as his Georgetown colleague Mark C. Murphy does in confrontation with subjectivist theories (Murphy, 2001: §2). 12. Though Mark C. Murphy helpfully sketches such an argument, with which I have much sympathy (Murphy, 2001: 101–5). 13. As persons have a variety of capacities/potentialities in this picture, the pursuit of noninstrumental ends cannot, in principle, be sublated or commensurated into a unitary or compound metric (say, the satisfaction of preferences aggregated or a weighted index of interpersonal utility). 14. On a similar basis one does not need to accept a theistic origin or basis for human nature, doubtless a controversial speculative enterprise, to accept the noninstrumental value generated by such end-as-goods (Kraut, 2007: fn.8, 138; Finnis, 2011a: 31–55). 15. This does not mean that subsequent theoretical reflection on human ends will not confirm and elaborate the role of health as a value. 16. A reviewer has alerted me to the fact that essentially the same point has been made independently by James Wilson (2009: 5). 17. Though for the same reason as Richard Kraut, I consider the use of the term ‘perfectionism’ to describe the type of welfarist/objectivist theory of well-being referred to here as inapt because the fitting development of natural human powers need not be equated with the attainment of perfect virtue (Kraut, 2007: fn.4, 136). 18. Rawls considered that perfectionist understandings of value can count as appropriate in deliberation on civil law in these circumstances, using as an example the statutory designation of national parks based on the recognition of the sheer natural beauty of the area (Rawls, 2001: 152). 19. Despite the fears of Stephen Latham (2016: 143–4) and Bruce Jennings (2007: §3.3), those who have led a normative revival of neorepublicanism in recent years have been emphatic from the start of their intellectual enterprise that there is no assumption that all citizens should be demandingly engaged in political activity (Pettit, 1997: 7–10; Lovett and Pettit, 2009: 12). Liberal theorists have, in any case, noted the critical importance of active political participation: John Rawls wrote ‘unless there is widespread participation in democratic politics by a vigorous and informed citizen body moved in good part by a concern for political justice and public good, even the best-designed political institutions will eventually fall into the hands of those who hunger for power and military glory’ (Rawls, 2001: 144). 20. The deduction of practice from a defined theory is more akin to an example of foundationalism, a rival method of justification. The approach of reflective equilibrium originated in Nelson Goodman’s work as a way of testing inferential rules against conclusions of reasoning within inductive logic. John Rawls transposed this insight from inductive reasoning to moral reasoning for the basic structure of a political society (Rawls, 1971: 20ff). 21. Though I note that some distinguished legal philosophers, such as Robert Alexy (2002: 44–93), treat constitutional rights as principles in some respects, a position from which I demur, for reasons that cannot be explored here. 22. Though the phronimos, the practically wise person for Aristotle in the Nicomachean Ethics (VI 7 1141a 26–28), may seek out sound principles to guide her as normative heuristics in some practical scenarios, this is not to hold that prudence considered as a virtue is focally about the dutiful following of principles or maxims, as some Kantian/neo-Kantian theories might hold. 23. See ‘Russian Proposal Would Phase In Cigarette Ban, but Current Smokers Get a Pass’, The New York Times, 12 January 2017 www.nytimes.com/2017/01/12/world/europe/russia-smoking-cigarettes.html?_r=0 [accessed 20 March 2017]. 24. 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Health as an Intermediate End and Primary Social Good

Walker, Greg
Public Health Ethics , Volume 11 (1) – Apr 1, 2018
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Oxford University Press
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© The Author 2017. Published by Oxford University Press. Available online at www.phe.oxfordjournals.org
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1754-9973
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1754-9981
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10.1093/phe/phx009
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Abstract

Abstract The article propounds a justification of public health interventionism grounded on personal health as an intermediate human end in the ethical domain, on an interpretation of Aristotle. This goes beyond the position taken by some liberals that health should be understood as a prudential good alone. A second, but independent, argument is advanced in the domain of the political, namely, that population health can be justified as a political value in its own right as a primary social good, following an interpretation of John Rawls’s evolved understanding of such goods in his later works. The article sets the scene for these positions by highlighting how liberal theories focusing on freedom as non-interference, or making the harm principle the basis of legitimate public health interventions, undercut the capacity of the state to actively promote population health. The article points to theoretical resources on legitimacy and liberty—the ‘salient coordinator account’ of authority and freedom as non-domination—that may help avoid this risk. The role of reflective equilibrium incorporating incompletely theorized mid-level principles is emphasized to ensure that interventions are soundly justified. The application of these principles would ensure that interventions do not exceed the proper moral/political boundaries limiting the role of government. Introduction The fruitful dialogue between public ethics and political theory has been a prominent theme in recent volumes of Public Health Ethics. Steps by some Western governments to legally prohibit smoking by adults in some unenclosed public spaces, and other directive public health interventions, have brought into sharp relief debates regarding the legitimacy of such measures. Recent work by some liberal political theorists help crystallize a fundamental challenge to core public health functions when political freedom as non-interference is granted absolute primacy. The treatment of health as a prudential good alone by some liberal thinkers also brings into question some of the regulatory measures governments in developed nations have implemented on this reading. In the first section of the article I state why public health is relevantly a political matter at all. In doing so I lay the ground for the consideration in subsequent sections of the article on how moral, legal and political theories could underpin, or indeed, undermine the achievement of population health improvements through directive interventions. The focus of the second section of the article is the dispute on the nature of political liberty and its interplay with the legitimacy of state interventions to maintain and improve public health. I highlight how certain liberal theories that focus on freedom as non-interference, or that make the Millian harm principle the basis of public health interventions, undercut the legitimacy of the state to actively promote population health in the manner that some Western governments are pursuing. I explicate some alternative theoretical resources on legitimacy and the common good, namely, the ‘salient coordinator account’ of authority, that helps to avoid this pitfall. In the following section, I propound a justification of public health interventionism grounded on personal health as an intermediate human end (on an interpretation of Aristotle) in the ethical domain. I then give an account, in the next section, of population health as a primary social good in the domain of the political, employing the distinction between these domains made by John Rawls in his writings since the 1980s. These two sections stand on their own as ethical and political interpretations of health in their respective domains: one does not have to subscribe to the first to agree with the second, or vice versa. Constraints and controls on the powers of state intervention on public health nonetheless remain important. In the next section of the article, I therefore advance that a reflective equilibrium incorporating incompletely theorized mid-level principles can ensure that directive public health interventions are soundly justified. These principles, when applied, would ensure that such interventions do not exceed the proper political boundaries that rightly limit the role of government in citizens’ lives. Public Health Practice: An Inescapably Political Matter Why should ethicists be concerned about the interface of public health and political and legal theories? Should we not simply view public health practice as a clinical discipline, operating autonomously within the limits of familiar professional codes? Three reasons underpin public health practice as involving irreducibly political concerns. First, public health focuses on the health of persons within social groups or populations. The population is usually coterminous with a political society or an administrative unit of that society. The interventions are broad in nature and are preventative in aim rather than therapeutic; thus, the normal direct relationship of care between a patient and a clinician is absent. The benefits of interventions are manifest at the population level via epidemiological data but difficult or impossible to attribute to specific individuals. As Geoffrey Rose wrote ‘[g]rateful patients are few in preventive medicine, where success is marked by a non-event’ (Rose, 2001: 432). Citizens will likely be unaware that they have improved health resulting from an intervention. This non-connection between the intervention at the macro level and personal benefit at the micro level we might call a ‘paradox of anonymous benefit’, a twin brother of Rose’s ‘prevention paradox’. The reason why this paradox might count as a political dimension of public health is precisely the lack of discernible tally between individual treatment for individual benefit, a tally that is perceptible in the healthcare domain. Secondly, as is now well established by the work of scholars such as Michael Marmot, the social determinants of health are significant, indeed more significant than the quantum of healthcare accessed by citizens (Marmot, 2015: 33–6). Population health is closely related to social structures and the distribution of resources, opportunities and conditions such as housing, education or the environment. These determinants are so consistent that the social gradient of health is clear across a range of societies. Outcomes are thus not the simple by-product of choices concerning risk and protective factors such as smoking or diet. The political relevance of this epidemiological fact is that social conditions driven by political and economic factors have a strong bearing on the health of citizens, some of which affect them during childhood. By the time people reach the stage of political participation as adults, they may well already be disadvantaged by adverse morbidity and mortality rates (a ‘latency effect’) (Marmot, 2015: 112–26). Finally, public health interventions are inherently political because many require, to a lesser or greater degree, legal compulsion (in the USA under the ‘police powers’ of the States). Basic health protection and environmental hazard functions are enabled by the promulgation and enforcement of law and public funding via taxation. This raises issues concerning political authority and legitimacy vis-à-vis citizen compliance with those directions, the focus of the next section. Political Liberty and Coercion: The State as the ‘Salient Coordinator’ of Public Health Public health laws restricting behaviour are generally applicable to all citizens and subject to criminal or civil penalty if transgressed. These laws sometimes regulate areas of life that some citizens believe should be matters of personal choice. Yet matters such as immunization programmes and communicable disease control measures generally require state coordinated action to be effective, as reliance on voluntary action alone by individuals would not assure the consistent application of public health measures across a population. The basis of coercive measures to address these distinctive ‘coordination problems’ in public health invokes scrutiny from liberals, particularly those holding to a strong form of liberal neutrality or the robust priority of basic personal liberties over social or communal goods. In this regard, liberal theories generally seek to address what some have called ‘liberalism’s dilemma’, namely, the ongoing tension between, on the one hand, the universal applicability of law and the irreducible plurality of human understandings of ‘the good life’, on the other (Rasmussen and Den Uyl, 2005: 284–5). A particular challenge arises when, despite cognizance of this perduring dilemma, citizens agree that the state needs to enact a common framework in a public policy domain affecting them communally, yet disagree on the concrete form and invasiveness of state action in that domain. This state of affairs is what Jeremy Waldron calls the ‘circumstances of politics’ (Waldron, 1999: 102). These circumstances appear to be prevalent in matters concerning public health policy and practice. Citizens often agree that some common framework is required for the protection and promotion of health by the state (i.e. that there is a ‘coordination problem’ requiring a response), but differ on such matters as the nature and extent of any legal enforcement of, for instance, smoke-free zones or the degree of coercion required to ensure an effective childhood vaccination regime. Many of these circumstances of politics can be placed at the door of so-called ‘reasonable’ disagreement, in that they reflect differences in the final ends chosen by citizens, while they nonetheless may be committed to the shared goal of achieving a just and democratic society (Rawls, 2005: xvi–xvii). The circumstances may also reflect what one philosopher calls the broader ‘normative openness’ of practical rationality, allowing a broad range of normatively permissible responses to particular practical scenarios (Murphy, 2006: 59–60). On this reading many differences between citizens on the most appropriate political course of action in response to a public policy challenge may be shallower than substantive disagreement about the content of morality. Disagreement may simply reflect a contingent non-coincidence of views regarding the specific design or concretization of a law or public policy (what Aquinas called determinatio) (Waldron, 2010: §§I–V), or disagreement on the content or application of certain principles of political justice. Disagreements of this shallower nature concerning public health interventions might include, at one end of the scale, different views on the most effective way to package cigarettes to inform users of risks (and deter usage), and to the precise weightings applied in a proportionality analysis (to calibrate the degree of directivity in public health interventions) at the other. For theorists including John Finnis, such contingent disagreement, as well as the prevalent selfish pursuit of private interests by citizens, is considered a near-constant in social life. This, in turn, renders almost impossible the achievement of unanimous agreement and compliance among citizens on clear social rules on important communal matters that are not at the same time enacted in law. The authoritative and legitimate role of binding law and state action in coordinating agency to achieve necessary political common goods within a society derives from this persisting contingent disagreement and non-cooperation motivated by selfishness (Finnis, 2011a: §IX;, 2011b: Ch. 2 and 3; cf., Murphy, 2006: §§4.6–4.7, §5). A test case may help disentangle some of these issues. The establishment of smoke-free zones across the entire site of public hospitals by the Scottish Government, and similar legal powers proposed by the Welsh Government, is such a case. These measures prohibit, in the Scottish case at least, smoking by all patients (including inpatients), staff and visitors in unenclosed areas such as gardens on the hospital site.1 The hospital must, as a quid pro quo, put in place comprehensive smoking cessation schemes for patients and staff. In the case of the proposed Public Health (Wales) Bill, Ministers in Wales would be able to use such regulatory powers to enforce wholly unenclosed smoke-free zones if they, in the words of the Bill, are ‘satisfied that doing so is likely to contribute towards the promotion of the health of the people of Wales’.2 Legitimacy can be defined for our purposes as the exercise of power by a regime in accordance with rightful authority. Legitimate rule, at the very least, would make violent sedition against the regime lacking in pro tanto justification. Political legitimacy is often taken by liberal theorists to be intimately connected with political freedom. The qualified denial of the authority of the state to interfere in the decisions of citizens in pursuit of their chosen final ends is common among liberals. One such theorist is Gerald Gaus, who argues that in liberal theory, ‘the onus of justification is on those who would limit freedom, especially through coercive means [as freedom as non-interference is said to be normatively basic for liberals]. It follows from this that political authority and law must be justified, as they limit the liberty of citizens’ (Gaus et al. 2015: §1.1). Gaus disavows the label libertarian (let alone anarchist) for his approach, arguing that his position is the lineage of Locke, Mill and their modern liberal descendants. Gaus holds that unless citizens see that they have ‘sufficient reason’ to obey laws that have a coercive effect on them, then those laws are not legitimate and generate no obligation for citizens to obey them (Gaus, 2009). His position is not premised on religious freedom as such, as many exemptions to child immunization laws currently are framed in the USA and elsewhere. These measures would not be legitimate even if they were approved by an elected legislature, following deliberation and expert evidence, deeming such a public health intervention (involving some degree of coercion) to be manifestly beneficial to the health of the population. On the most optimistic estimation, it may just be possible, within the Gausian framework, to justify the state provision of a public health function to control highly communicable diseases, severe environmental hazards or other pressing civil contingencies. These restricted interventions might be publicly justifiable on the basis that such services are examples of pure public goods that voluntary provision simply could not provide without the risk of free riding threatening the viable delivery of the function, thus breaching Gaus’s own normative ‘reversibility requirement’ (Gaus, 2011: 299ff).3 Each citizen would thus have a pro tanto reason for the state to act, with compulsion if necessary, to secure the provision of such goods. It is not only neoclassical liberals who may query the use of directive state interventions to promote population health. Lubomira Radoilska’s approach to public health interventions, which she takes to be faithful to the position of John Rawls (rather than neo-Lockeans), places the justification of state public health interventions squarely on the protection of citizens’ autonomy and personal liberties through the operation of the ‘harm-principle’ formulated by J. S. Mill (Radoilska, 2009: 142). Aside from preventing manifest harms to health or a third-party violation of negative liberties, her position permits no role for the use of coercive state apparatus to promote population health. Interventions on mandatory smoke-free zones in all unenclosed areas on hospital sites would presumably have no chance of gaining consent through the ‘sufficient reason’ of each citizen (Gaus’s position), as some smokers (and non-smokers) would presumably claim that their behaviour in that context is self-regarding and has no adverse impact on others. It seems all but certain that broader public health functions including screening services, smoking cessation schemes and other health promotion campaigns would be left to voluntary charitable action. It would be reasonable to assume that, in such circumstances, there would be a significantly higher risk that herd immunity for some infectious diseases would not be reached. Similarly, we may reasonably conjecture that the invidious societal repercussions of public health challenges such as obesity, or the personal and economic costs of missing early treatment of screenable diseases, may well be greater over time if a system of pure voluntarism was adopted. The radicalism of Gaus’s position does not stop there. Public health interventions are funded generally by coercive taxation. Gaus is clear that citizens must support the ends supported by taxation for the coercive means of funding public services to be considered legitimate (Gaus, 2009: 91). The right of veto on taxation that citizens would have in this framework would have major repercussions on the funding of public health agencies, even in their most basic functions. For it is beyond dispute that the core infrastructural demands of financing the establishment of a public health agency would necessarily require taxpayer resources. Short of a pure public good scenario, putative objectors—the conscientious bohemian hedonist—might claim that they deliberately live their life hic et nunc and would rather ‘chance it’ by using their earnings to enjoy life rather than submit to taxation covering societal risks through taxpayer-funded health protection services. In the Gausian framework, it would not be for the state to gainsay such reasoning by use of coercive measures (Gaus, 2009: §3). It is notable that Gaus follows many analytical legal and political theories, not sharing his (ultra-)classical liberal position, in holding that political authority is not based on self-standing reasons of state, but that its ‘normal justification’ rests on the authority’s ability ‘to better conform [citizens] to their own reasons’. Political reasons, in this view, are thus ‘subordinated’ to ‘ordinary individual morality’ (Raz, 1986: 72–3). Raz and Gaus’s positions, though differing widely in their understanding of political liberty, hold that the focus of legitimate political authority is ‘the justification of a normative power on the part of the state to change a person’s normative situation’ (Perry, 2013: fn.4, 1). This is a different general approach, as Stephen Perry notes, to that outlined by the likes of John Finnis cited earlier. In this ‘salient coordinator’ theory of authority, the initial focus is on the justification of the state’s power to use coercion against its subjects, based on the political community’s role as the only viable coordinator of common goods. Only then, and derivatively, does the theory articulate an account of justification for the ‘state’s powers to change its subject’s normative situation’ with its understanding of presumptive legal obligation (Perry, 2013: fn.4, 2). The ‘paradox of anonymous benefit’, identified in the previous section, is a useful illustration of this theoretical disjuncture between the normal justification and salient coordinator theories. Under the former theory, agents simply might not recognize that such a possible or probable (anonymous) benefit has any normative purchase on them as individual agents in generating reasons for compliance. But in the salient coordinator account, citizens’ varying determinations of whether this real but anonymous benefit is significant enough for them to comply individually with a law, or pay a tax, does not undermine the legitimate role of the state in providing services that can only viably be provided on a binding basis. This is the case because the baseline legitimacy of state action to provide such health protection and promotion services (as a common good) to citizens has, on this account, been established antecedently. This indicates that further consideration be given to the role of the common good in relation to public health ethics, not least since the concept has been a crucial one for the legitimacy of public health practice, since it was made the locus of the key US constitutional case on mandatory vaccinations over a century ago.4 Some recent attempts in public health ethics to find a via media between an organic notion of the common good and a reductively individualistic one (Jennings, 2007: 51–5) have lacked the benefit of the full resources of Anglophone analytical philosophy. Public health ethicists frequently direct their attention to the issue of ‘common pool’ resources and pure public goods which, though crucial theoretical issues, are but one aspect of a wider notion of the common good. Though we cannot here explore this fecund literature here, reflection on the nature of the political common good (or the ‘public interest’) has a distinguished legacy spanning varied philosophical schools since the 1960s (Barry, 1965: §§XI–XIV; Raz, 1986: §§III–IV; Finnis, 1996, 2011a: §V.8, §VI, §VIII.4; 2011b: §VI; Pettit, 2004; Murphy, 2006: §3). Personal Health as an Intermediate End in the Ethical Domain My aim in this section is to outline an ethical basis for the valuation of health as a practical end/good. This rationale can be accepted or not as a philosophical argument rather than a position focused on political values. It responds to those that deny that health as normal functioning can be said to be more than a prudential consideration. This argument links to the domain of the political only indirectly, as some liberal theorists following the position of John Rawls, rather than Gerald Gaus, query the use of coercive public health interventions transgressing citizen’s basic personal liberties when justified on the basis of health as a value or good. Ludomira Radoilska, for one, writes of those considering health as a basic value as positing health as ‘overarching good’, which should instead be viewed as a prudential good alone (Radoilska, 2009: 135, 137).5 On a similar basis Daniel Weinstock strikingly describes those considering health as a value as propounding a doctrine of ‘healthism’ (Weinstock, 2015: 176).6 I argue that such interpretations assume that those positing health as a basic value implicitly treat it as a maximand, a person’s ‘dominant’ final end,7 or what Charles Taylor calls a hypergood.8 Here I would propose a way to avoid the Scylla of healthism and the Charybdis of health as containing nothing more than instrumental value. This approach fundamentally queries the putative ‘dualism of practical reason’ adopted in much modern moral philosophy, upon which this dichotomy rests. This dualism involves the clear bifurcation of prudential from moral reasoning, where moral reasons alone are obligatory and ‘right-making’, while the prudential is connected to instrumental reasoning (generating, in Kantian terms, only non-obligatory hypothetical imperatives). In this picture, prudence is limited to means-end reasoning concerning self-regarding acts, whereas moral reasoning relates to other-regarding actions.9 Henry Richardson helps to clear some conceptual ground here by recalling that Aristotle conceived some ends as being ‘final’, while not being complete, ultimate ends. Final but not complete ends—intermediate ends—play a dual role in practical reasoning as ends (i) generating value in their own right for the agent, while also serving as a (ii) necessary means to attaining further final end(s), that is, those ends considered (yet) more complete and ultimate (Richardson, 1992: §§4–6; Richardson, 1994: §§III-IV, §§IX-X, Richardson, 2015: 164–65; also Annas, 1993: 34–42).10 These intermediate but non-ultimate final ends give both instrumental and noninstrumental value to the agent when attained, at least on ‘inclusive’ readings of Aristotle’s conception of human flourishing.11 I would hold to the philosophical defensibility that health as normal functioning could be considered one of these intermediate ends, though an extended dialectical argument along these lines is beyond the scope of this article.12 Here health as normal functioning could be considered an intermediate end and thus understood as a noninstrumental component of well-being inter alia (that is, among other incommensurable components, within an ultimate end). Persons, on this view, may value their health without prejudice to deeper agreement on ultimate ends that may have an existential, metaphysical or religious aspect. In this picture well-being is ‘associated with the actualization of the powers of thought, emotion, and sociality inherent in human nature; the centrality of the process of socialization through which these powers emerge’ and the pleasure taken from the exercise of these powers, while it ‘leav[es] aside’… [Aristotle’s] ‘thesis that human beings have an essence’ (Kraut, 2007: fn.8, 137–8). A healthy life is thus a fitting or worthy development of the person as a rational animal. I would argue that a form of ‘developmentalism’, as Richard Kraut calls his (objectivist) understanding of well-being (Kraut, 2007: §§35–54), does not fall into the category of a naïve or outmoded essentialism, for three reasons. First, as Terence Irwin reminds us, the human goods that fulfil human ends, from a perspective of a normatively reconstructed form of Aristotelian naturalism, need not be seen as moral goods per se (i.e. involving ‘moral properties’ in analytical terminology) nor understood as deriving from a ‘Chain of Being’ metaphysical anthropology or a biologically determined understanding of human nature (Irwin, 2009: §§1390–1402). Following an interpretation of Aristotle (and Aquinas), the end-as-good is presented to the will as an intelligible and desirable (i.e. choice-worthy) object of practical reasoning: i.e. the (proximate) point of the action. This end-as-good, in turn, actualizes a human potentiality/capacity, reflective of human nature, when taken up in praxis.13 This order of knowing—from desirable object (aimed at an end-as-good), to the act, to the human potentiality (Finnis, 1983: 21)—inverts the epistemic relationship connecting human nature and praxis familiar from the much-criticized ‘essentialism’ of scholastic and neo-scholastic philosophy.14 Against the scholastic position, or that of subjectivist theories of well-being, I argue that we can view the agent’s promotion of her own health as reflecting a basic human capacity for life and vitality that instantiates a human good in action. Achieving a healthy life is an end and good-to-be-pursued not requiring prior speculative inquiry to identify it as choice-worthy, as such good(s) are capable of being apprehended immediately in practical reasoning in this philosophical account (Finnis, 1983: §§I–II).15 Secondly, the manner in which any end is pursued by an agent is open to the rightful spontaneity and reflectiveness of each person’s rational ‘second nature’. Persons may therefore pursue some ends with greater vigour or devotion than others, as a reflection of their unique personality, circumstances and preferences. As John McDowell has argued, a viable naturalism must not be a ‘bald naturalism’ underpinned by a crude determinism of empirical laws (McDowell, 1994: 66–86; also Kraut 2007: 146–7). Contemporary naturalists thus recognize the importance of human autonomy in the exercise of practical freedom in their developmental understanding of well-being (Kraut, 2007: §53; also Irwin, 2011), seeing this as reflective of a free will and adult intellective powers of practical reasoning, rather than as a transcendental concept. Thirdly, contemporary presentations of Aristotelian naturalism incorporate important narrative, sociological and psychological insights concerning human nature developed in modernity, including those derived from the human sciences (MacIntyre, 2016: Ch. 4 and 5). Readers may have already noted the possible consonances between this Aristotelian–(Thomist) approach and Martha Nussbaum’s version of the capabilities approach with its own neo-Aristotelian bearings, or the related understanding of health capability developed by Shridhar Venkatapuram (2011). Nussbaum is well known as a philosopher for the espousal of an understanding of human beings and their functioning that eschews reliance on a metaphysical anthropology, seeing a distinctively internal basis for human ethics and truth (Nussbaum, 1992; Nussbaum, 1995). She makes explicit the value of health in the domain of the political through the notion of capabilities. In her capabilities approach, human capacities or potentialities are conceptualized in the political domain as opportunities for a free and fulfilling life expressing the equal dignity and worth of persons (Nussbaum, 2011: 29–35). Bodily health is one of the 10 central capabilities. Nussbaum’s approach may not be the only basis that we could treat health as a human end or good, especially when one considers how goods may be valued and promoted in the distinctive ‘domain of the political’ (Rawls, 2005: 11, 38, 43, 125), the concern of the next section of the article. Population Health as a Primary Social Good in the Political Domain Moving to the domain of the political, the example of smoke-free hospital grounds is a helpful one to illustrate the issue concerning personal liberty surveyed earlier. It is difficult to see how the enforcement of a ban on patients smoking in the garden of a public hospital can be justified on the same basis as the now widespread bans on smoking in enclosed or semi-enclosed workplaces, which involve the harm principle. Some citizens hold that this is not a legitimate role for the state as no manifest harm is inflicted on non-smokers and the choice to harm one’s own health through smoking, as an otherwise lawful activity, is a personal one. Such interventions would seem to be instead predicated on, as the wording of the Public Health (Wales) Bill would imply, the political value of promoting population health. Norman Daniels, working within a framework outlined in John Rawls’s form of political liberalism, maintains that Rawls’s ‘fair equality of opportunity’ principle can justify state action to secure the fair distribution of health outcomes, including forms of public health intervention (Daniels, 2007). Daniels proposes that the wider social opportunities that help to determine health status should be included in this consideration, citing the social determinants of health. He applies the fair equality of opportunity principle to both the provision of clinical healthcare and public health services. Though this is a coherent outworking of Rawls’s principles of justice, I outline a different basis—population health as a primary social good—to justify public health interventionism. This basis helpfully mirrors and complements in the political domain the ethical argument articulated in the previous section, though one need not endorse the axiological argument about intermediate ends in that section to accept what follows. Primary goods are those goods that persons, in the device of representation that is John Rawls’s original position, would choose to maximize irrespective of their final end(s). They are therefore an input into the constructivist procedure not filtered out by the ‘veil of ignorance’ that is part of the structure of the device (Rawls, 2005: §§V.3–4). In Rawls’s later political liberalism, the primary social goods are not attached to an ethical theory of well-being—a comprehensive conception of the good—but are part of a political conception of the person. Rawls earlier described health as a ‘natural’ primary good, in distinction to the primary social goods in A Theory of Justice (Rawls, 1971: 62). I would, however, argue that the clear epidemiological evidence about the social determinants of health, which were not widely known outside epidemiology when A Theory of Justice or Political Liberalism was written, means that we should consider population health to be a primary social good as well as personal health being a primary natural good.16 When Rawls revisited A Theory of Justice’s understanding of the primary goods in the 1980s in lectures such as ‘Kantian Constructivism and Moral Theory’, he broadened the index of primary goods to include not only ‘all-purpose means’ for people to pursue their rational plan of life, such as income and wealth, but added to the primary goods those ‘things [which] are generally necessary as social conditions’ (Rawls, 2001: 88). The primary goods, in these later works, are described as constituting a ‘partial conception of the good’ (Rawls, 2001: 60), reflecting the ‘needs’ of persons as citizens (Rawls, 2005: 187ff). In the view presented here, a reworking of political liberalism could include population health as a ‘generally necessary social condition’ (as Rawls put it). Critically, the point here is that there is no necessity to postulate health eo ipso as a perfectionist value in the political domain, which for some theorists would require an illiberal pursuit of the (ethical) doctrine of healthism.17 Indeed, avoiding such a postulation would have been important for Rawls as he clearly resisted, including in his later works, basing the primary goods on what ‘anyone’s idea of the basic values of life [is] … however essential their possession’ may be (Rawls, 2005: 188). At the same time, Rawls did not rule out permitting some limited forms of state coercion in the furtherance of perfectionist values to be legitimate, so long as those measures did not contravene basic human rights, the liberties contained in the Principles of Justice or basic justice established by a liberal political conception of justice.18 Martha Nussbaum takes a somewhat different approach to the manner in which the promotion of capabilities can be rendered compatible with liberal concerns. She views her theory as a species of the broader genus of political liberalism (following Rawls’s template) while noting the critical importance of the distinction between capability and actuated functioning. In Nussbaum’s theory, citizens have a free choice as to whether they wish to exercise a capability (such as health capability) in functioning. Despite Nussbaum’s caveat on functionings, liberals such as Gaus may object that making available a requisite level of entitlement to the central capabilities in a political society through the provision of public services is impermissible if some individual citizens lack sufficient reason to assent to coercive taxation as the basis of funding them. (Here we encounter a pivotal difference between Rawls and Nussbaum’s political liberalism and Gaus’s justificatory liberalism.) It is noteworthy that Nussbaum suggests that the central capabilities ‘could figure as an account of primary goods’ (Nussbaum, 2006: 116). Others have abandoned such tentativeness, arguing that the central capabilities should be seen squarely as the primary goods, replacing Rawls’s own articulation of an index of primary goods (Brooks, 2015: 159–65). Thom Brooks’s suggestion does not seem an alien one to Rawls’s later ‘political’ development of the primary goods, as Rawls’s subjective ‘rational-desire’ account of moral goodness in A Theory of Justice (with its ‘full’ and ‘thin theory’ elements) gives way to a ‘political conception of the person’ with the two moral powers, dispensing with the need for the ‘full theory of the good’ (Rawls, 1971: 27, 79; cf. Rawls, 2005: 178–80). ‘Goodness as rationality’, which had a broad and multifaceted role in Rawls’s A Theory of Justice, is limited to the thin theory of the good in the later Political Liberalism, which accounts for the pursuit-worthy nature of the primary goods for all agents in the original position (Weithman, 2015: 829–30, 833–7). This may seem like arcane exegesis at first, but a friendly amendment of Rawls’s position in this manner might allow for health to be incorporated coherently into a broad understanding of political liberalism. It would enable an understanding personal health (as normal functioning) to be viewed, qua population health in the political domain, as a primary social good bearing political value for all citizens, irrespective of their ultimate ends. In the original position, we therefore interpret citizens’ desire for a healthy life as rationally maximizing the primary social good of population health, rather than the pursuit of a perfectionist value. Crucially, this status as a primary social good for population health would allow pro tanto political justification for public health interventions to maintain and enhance the health status of persons at the societal level. This would not preclude personal health in the ethical domain (i.e. within the citizen’s comprehensive doctrine) being seen by the agent as a basic value. This would, in the example set out in the previous section, helpfully preserve the twofold understanding of intermediate ends rearticulated by Henry Richardson (from Aristotle): that such ends give both instrumental value (population health as a primary social good of citizens) and noninstrumental value (as personal health as a basic value in the ethical domain). This approach would doubtless raise questions from liberals of various stripes concerning the potentially unrestricted nature of such interventions and their prospective infringement of liberty. I would offer two responses to this challenge. The first is to call on the resources of neorepublican theory to help break a putative impasse on the nature of political liberty.19 Leading neorepublicans, such as Philip Pettit, view themselves as ‘republican liberals’, not theorists posing a challenge to liberalism ad extra (Pettit, 2012: fn.8, 11). As is now well-aired in the public health literature, neorepublicans hold to a third concept of liberty—non-domination (i.e. the absence of a capacity for the exercise of arbitrary power by a body or agent over another person)—departing from the previously ubiquitous twofold Berlinian interpretation of freedom as enabled self-mastery (positive liberty) or as non-interference (negative liberty). If such a definition of political liberty is adopted, then we can begin to understand that a public health intervention securing the common good of the community through the directive promotion of population health should not be viewed as an arbitrary infringement of liberty, even if it were to interfere with the agent’s (negative) liberty to choose in an unrestricted manner. The second response to a liberal fear about unrestricted public health interventionism is to propose principles that would regulate or constrain it in practice. This is in the best traditions of constitutionalism and the notion of limited government. It is to this task that the next section is devoted. Limiting Interventionism: Reflective Equilibrium Incorporating Mid-Level Principles Liberals will rightly query an unrestricted and unqualified justification for coercive intervention to improve the health of citizens. The role of practical principles in regulating state powers of directive intervention therefore has an important place in public health ethics. In this section, I look at the role of mid-level principles (within reflective equilibrium) and human rights as a way of effectuating this limitation. Proposals for directive public health interventions are to be tested against these principles (e.g. proportionality) and against any potential transgression of human rights (including religious freedom), as defined in the familiar international conventions. When acting in accordance with these restraining principles and rights citizens may be assured that such interventions are not arbitrary and are exercised within due limits. Reflective equilibrium, first brought to prominence by Rawls, is now a staple method in bioethics and more recently in public health ethics. Though doubts have been expressed about reflective equilibrium (Latham, 2016: 140–2), I outline how it can be a useful approach in applied ethics and politics. Reflective equilibrium for Rawls is a dynamic process where coherence is brought iteratively between principles and one’s intuitions or judgements on sound practices. He openly acknowledges that reflective equilibrium is an ongoing process, not one that reaches a static end point (Rawls, 2005: 385). Reflective equilibrium therefore allows agents to evaluate the adequacy of moral principles or theories by confronting them with considered judgements relating to practice (Mikhail, 2011: 28–9). Through the notion of wide reflective equilibrium, the principles themselves can be changed or amended if the person believes that the disequilibria between them and their practical judgements are caused by inapt or erroneous principles (Rawls, 1971: 49; Rawls, 1975: §II). Some ethicists see reflective equilibrium as sharing key features with the classical dialectical method and is a modern and apposite understanding of Socratic questing and questioning about how we live our lives (Nussbaum, 2011: 77–9). Others see reflective equilibrium as a part of Rawls’s long-term pursuit of a solution to descriptive and normative adequacy, a metaethical inquiry (Mikhail, 2011: 28). One thing is clear: reflective equilibrium is not a process of deduction where (public health) practices are derived from (a political) theory as conclusions from premises.20 My own judgement is that the incorporation of mid-level principles within reflective equilibrium is particularly helpful in the political context. Mid-level principles, as set out by Michael Bayles, are principles relevant to applied ethics (including in medicine) and law that act as a bridge between ‘a fundamental norm’, value(s) or theory to the empirical circumstances of particular cases and the practices/rules that may regulate them (Bayles, 1984, Bayles, 1986). Though they are general in scope, mid-level principles do not have to be strictly universal nor serve immediately as hard-and-fast rules, though they may be used to generate rules that help decide or inform particular judgments, especially in law (Bayles, 1986: 57–8). Ethicists working in the field of public health have referred to similar typologies of principles as ‘operating principles’ (Lee, 2012: 5). An advantage of mid-level principles, as I interpret them, is that they depend only on what have been called ‘incompletely theorized agreements’ which operate in a similar way (in constitutional law) in the work of the legal philosopher Cass Sunstein (Sunstein, 2007: 1–4). In the case of mid-level principles, this is because these principles are defeasible, not logically deduced from the fundamental norm or meta-theory (Bayles, 1984: 110). Such mid-level principles do not include within them the deeper theoretical content on distributive justice or on metaphysical controversies. Incomplete theorization in this context allows public health practitioners and citizens to work from principles useful to them, without being unduly diverted and divided by differences they have on fundamental philosophical or religious matters. Beauchamp and Childress, from the bioethical perspective, see mid-level principles as flowing from a ‘common morality’, though I would maintain that we do not have to assent to the existence of such a contested notion to perceive the usefulness of mid-level principles beyond bioethics (Beauchamp and Childress, 2001: 401–7). Their four prima facie principles for bioethics (autonomy, non-maleficence, benevolence and justice) are examples of such principles applied to the specific medical/clinical context. Given the wider and more political context of public health, it is justifiable to invoke a broader range of mid-level principles than the four identified by Beauchamp and Childress. In my understanding, we use a three-tier schema representing a reflective equilibrium in relation to public health ethics (see Table 1). The first tier involves more or less fully theorized moral theories or first principles. These fundamental theories include within them are clear and contested metaethical commitments. These high-level principles are subject to adjustment or rejection if the citizen employs wide reflective equilibrium. Table 1. A schematic wide reflective equilibrium incorporating mid-level practical principles and intermediate goods Theory/first principles/ comprehensive doctrines  Objective list/basic goods theories  ‘Dominant’ end eudaimonia  Hedonic welfare  Religious/theological ends  The Realm of ends  Including metaethical premises on well-being  (John Finnis, Mark C. Murphy)  Philosophical contemplation (certain interpretations of Aristotle)  (Crisp, 2006)  Based on revealed sources  Persons as authors and addressees of universal moral laws valuing people as ends-in-themselves (Kant)  Mid-level principles  Practical principles: e.g. proportionality (e.g. ‘least restrictive means’), equity (judgements on necessary ‘exceptions’ to rules), parsimony (e.g. Occam’s razor) and precautionary principle    Intermediate ends/goods: Health as normal functioning, housing, education, sociality/afflation, physical security, etc.    Moral principles: e.g. Harm principle, priority of persons principle (i.e. human dignity principle), reciprocity and transparency    Political principles: e.g. common good principle, subsidiarity, solidarity, civility, sustainability for future generations principle and efficiency principle    Bioethical principles: e.g. patient autonomy, benevolence, non-maleficence and justice    (Relevant) fundamental human rights: e.g. freedom of conscience, freedom of religion and right to privacy    Considered judgments on practice: Exemplified by ‘legitimate’ state public health interventions  Compulsory public health interventions (e.g. quarantine and ‘removing the pump handle’)  ‘Proportionate Universalism’ in addressing social gradient (Macdonald et al. 2014)  Legal restrictions on harmful products (including trans-fat bans or bans on smoking in enclosed spaces)  Enforced labelling of harmful products (tobacco and alcohol)  Child vaccination requirements for public school registration (in US states), contractually mandatory vaccinations for clinicians in healthcare settings  Theory/first principles/ comprehensive doctrines  Objective list/basic goods theories  ‘Dominant’ end eudaimonia  Hedonic welfare  Religious/theological ends  The Realm of ends  Including metaethical premises on well-being  (John Finnis, Mark C. Murphy)  Philosophical contemplation (certain interpretations of Aristotle)  (Crisp, 2006)  Based on revealed sources  Persons as authors and addressees of universal moral laws valuing people as ends-in-themselves (Kant)  Mid-level principles  Practical principles: e.g. proportionality (e.g. ‘least restrictive means’), equity (judgements on necessary ‘exceptions’ to rules), parsimony (e.g. Occam’s razor) and precautionary principle    Intermediate ends/goods: Health as normal functioning, housing, education, sociality/afflation, physical security, etc.    Moral principles: e.g. Harm principle, priority of persons principle (i.e. human dignity principle), reciprocity and transparency    Political principles: e.g. common good principle, subsidiarity, solidarity, civility, sustainability for future generations principle and efficiency principle    Bioethical principles: e.g. patient autonomy, benevolence, non-maleficence and justice    (Relevant) fundamental human rights: e.g. freedom of conscience, freedom of religion and right to privacy    Considered judgments on practice: Exemplified by ‘legitimate’ state public health interventions  Compulsory public health interventions (e.g. quarantine and ‘removing the pump handle’)  ‘Proportionate Universalism’ in addressing social gradient (Macdonald et al. 2014)  Legal restrictions on harmful products (including trans-fat bans or bans on smoking in enclosed spaces)  Enforced labelling of harmful products (tobacco and alcohol)  Child vaccination requirements for public school registration (in US states), contractually mandatory vaccinations for clinicians in healthcare settings  Mid-level principles and intermediate goods populate the second tier of the schema. As I view them, mid-level principles can be categorized as practical principles (aiding sound practical judgement on particulars), moral principles (aiding decisions on substantive matters of just/unjust treatment between persons) or political principles (relating to decisions regarding public policy and positive law). We may also specify these mid-level principles by practical context, hence the reference to the four bioethical principles in this tier. Human rights, though not principles per se, can also be seen to play an analogous role in spanning the gap between theory and practice.21 Let us take two examples of a mid-level principle for illustration. The principle of proportionality might be an example of a practical principle, in that it requires experience and practical wisdom to calibrate judiciously effective action in the face of a particular challenge. A broad proportionality principle, in this public health context, might be defined as: act to tailor interventions judiciously to the objective/end sought; using only those means clearly necessary to achieve the desired population health outcome.22 Citizens and their legislators may use this principle in their deliberations on coercive measures that at first glance appear disproportionate, such as the recent proposal in Russia to bar people born in 2015 or after from being sold cigarettes.23 Proportionate judgment will also be required in giving specific weightings for interventions focused on a socially disadvantaged target group vis-à-vis the wider population within a policy of ‘proportionate universalism’ designed to reduce a society’s social gradient in health outcomes (Macdonald et al. 2014: 4). Too low a weighting would render the targeted action ineffective, and too great a weighting would render the universalism of the policy meaningless. Secondly, the ‘common good principle’ is one that is also relevant as a mid-level political principle, which we might summarize as: ‘each person is bound to do his or her share for the common good’ (Murphy, 2006: 86). We can usefully define the political common good, to which we are expected to contribute our share, as ‘the whole ensemble of material and other conditions, including forms of collaboration, that tend to favour, facilitate, and foster the realization by each individual of his or her personal development’ (Finnis, 1996: 5). This ensures that we all, in some concrete manner, duly harmonize the pursuit of our personal good with that of the wider political community and its members. Finally, the lower tier in the schema represents considered judgements on practice, which are public health interventions we feel secure in supporting as normatively justified. Conclusion The matters addressed in the article have gone to the heart of some pivotal and controversial issues of method at stake in the interface between public health ethics and political theory. In key aspects, they mirror important debates in moral and political philosophy on perfectionism, neutrality and the objectivity/subjectivity of well-being. I have argued that intermediate ends and mid-level principles (the latter within reflective equilibrium) correlate usefully in relation to the justification of public health interventions. They do so in a way that does not gainsay disagreement at levels that invoke irreducibly metaphysical concerns. This position need not alarm moderate liberals who may fear the incorporation of an axiological programme into public law, as the incorporation of appropriate mid-level principles plays a normatively restraining role in guiding state action. These controls are important in ensuring that public health interventions are considered legitimate in the face of accusations of a pure perfectionism. Clear thinking is needed to address some of the complex public health ethical challenges that our societies face. These include nuanced controversies, including proposals for the mandatory immunization of boys who may otherwise (unintentionally) act as pathogenic vectors for the human papillomavirus (HPV) for girls who may go on to develop cervical cancer.24 Some saw such a proposal as imposing an essentially ethical position of medical altruism on boys that they, and/or their parents, should be given the choice of embracing voluntarily. Alternatively, we may see maintaining health, including through proportionately coercive measures, as an intermediate end of persons and a primary social good of citizens (viz. population health). Whatever one’s view in this example, these are questions that public health ethicists and political theorists should address together. Acknowledgements The author thanks Dr Thomas D. Waite for discussions on the nature of certain public health interventions in the UK. The views expressed in the article are the author’s alone; any errors remaining are the responsibility of the author. Footnotes 1. See Smoke-Free Hospital Grounds, Scottish Government website, 1 April 2015: http://news.scotland.gov.uk/News/Smoke-free-hospital-grounds-1823.aspx [accessed 24 January 2016]. 2. See Welsh Government, Public Health (Wales) Bill 2016: s.10(3). www.assembly.wales/laid%20documents/pri-ld10796/pri-ld10796-e.pdf [accessed 7 December 2016]. 3. It is worth noting that John Rawls, from a liberal perspective, saw a potentially coercive role for the state in providing those health services that can be considered pure public goods (Rawls, 1971: 266–70). Gaus does not see himself as a Rawlsian, however, and Rawls would doubtless differ with Gaus on some important issues. 4. The US Supreme Court, in Jacobson v Massachusetts 197 US 11 (1905), stated, in support of state intervention, that ‘government is instituted ‘for the common good, for the protection, safety, prosperity and happiness of the people’ (quoting the Massachusetts Constitution, pt. 1, art. VII). 5. Radoilska considers that health is underdetermined with regard to well-being and therefore cannot ‘satisfy the formal constraints of a final end’ (Radoilska, 2009: 138). 6. Weinstock here also articulates a different notion of ‘intermediate goods’ (such as health and education), noting the need for approaches to public policy to form a holistic ‘platform’ that incorporates the interrelationships that exist between health and other social conditions. 7. By a ‘dominant’ end, I refer to those interpretations of eudaimonistic ethics that hold that a person’s ultimate end is a single summum bonum that comprehensively supersedes all anterior final ends to the extent that all value is derived from the unitary, complete end. 8. Charles Taylor describes hypergoods as those ‘goods which not only are incomparably more important than others but provide the standpoint from which these must be weighed, judged and decided about’ (Taylor, 1989: 63). 9. Work by Paul Bloomfield (2014: 18–41) and Julia Annas (1993: §3) helps us to critically interrogate a hard-and-fast ‘dualism’ of practical reason. 10. The opaqueness of the terminology of ‘instrumental means’, ‘final ends’ and ‘ultimate ends’ that Richardson seeks to conceptually clarify is compounded by the fact that his disambiguated taxonomy of ends does not tally with the influential usage of John Rawls, or even some contemporary Aristotelian–Thomists, who at times have used the designation ‘final ends’ ambiguously, or as a marker for the ends represented by the content of ‘comprehensive doctrines’ (including religious doctrines) in Rawls’s later theory. 11. I do not claim that Richardson propounds an objectivist approach to well-being, as his Georgetown colleague Mark C. Murphy does in confrontation with subjectivist theories (Murphy, 2001: §2). 12. Though Mark C. Murphy helpfully sketches such an argument, with which I have much sympathy (Murphy, 2001: 101–5). 13. As persons have a variety of capacities/potentialities in this picture, the pursuit of noninstrumental ends cannot, in principle, be sublated or commensurated into a unitary or compound metric (say, the satisfaction of preferences aggregated or a weighted index of interpersonal utility). 14. On a similar basis one does not need to accept a theistic origin or basis for human nature, doubtless a controversial speculative enterprise, to accept the noninstrumental value generated by such end-as-goods (Kraut, 2007: fn.8, 138; Finnis, 2011a: 31–55). 15. This does not mean that subsequent theoretical reflection on human ends will not confirm and elaborate the role of health as a value. 16. A reviewer has alerted me to the fact that essentially the same point has been made independently by James Wilson (2009: 5). 17. Though for the same reason as Richard Kraut, I consider the use of the term ‘perfectionism’ to describe the type of welfarist/objectivist theory of well-being referred to here as inapt because the fitting development of natural human powers need not be equated with the attainment of perfect virtue (Kraut, 2007: fn.4, 136). 18. Rawls considered that perfectionist understandings of value can count as appropriate in deliberation on civil law in these circumstances, using as an example the statutory designation of national parks based on the recognition of the sheer natural beauty of the area (Rawls, 2001: 152). 19. Despite the fears of Stephen Latham (2016: 143–4) and Bruce Jennings (2007: §3.3), those who have led a normative revival of neorepublicanism in recent years have been emphatic from the start of their intellectual enterprise that there is no assumption that all citizens should be demandingly engaged in political activity (Pettit, 1997: 7–10; Lovett and Pettit, 2009: 12). Liberal theorists have, in any case, noted the critical importance of active political participation: John Rawls wrote ‘unless there is widespread participation in democratic politics by a vigorous and informed citizen body moved in good part by a concern for political justice and public good, even the best-designed political institutions will eventually fall into the hands of those who hunger for power and military glory’ (Rawls, 2001: 144). 20. The deduction of practice from a defined theory is more akin to an example of foundationalism, a rival method of justification. The approach of reflective equilibrium originated in Nelson Goodman’s work as a way of testing inferential rules against conclusions of reasoning within inductive logic. John Rawls transposed this insight from inductive reasoning to moral reasoning for the basic structure of a political society (Rawls, 1971: 20ff). 21. Though I note that some distinguished legal philosophers, such as Robert Alexy (2002: 44–93), treat constitutional rights as principles in some respects, a position from which I demur, for reasons that cannot be explored here. 22. Though the phronimos, the practically wise person for Aristotle in the Nicomachean Ethics (VI 7 1141a 26–28), may seek out sound principles to guide her as normative heuristics in some practical scenarios, this is not to hold that prudence considered as a virtue is focally about the dutiful following of principles or maxims, as some Kantian/neo-Kantian theories might hold. 23. See ‘Russian Proposal Would Phase In Cigarette Ban, but Current Smokers Get a Pass’, The New York Times, 12 January 2017 www.nytimes.com/2017/01/12/world/europe/russia-smoking-cigarettes.html?_r=0 [accessed 20 March 2017]. 24. 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Public Health Ethics – Oxford University Press

Published: Apr 1, 2018

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