Defending a Basic Right of Self-Direction Against Enforceable Duties of Beneficence: How a Coasean Bargain Might Help

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Defenders of a restricted scope of basic rights often claim that certain largely self-regarding liberties are worth protecting and others are not. One reason offered for selectiveness is that certain liberties are valuable relative to their risk of (sometimes, even great) harm. So, a Jehovah’s Witness should be free to refuse a lifesaving blood transfusion that offends his religious conscience, and a rock climber should be free to engage in a challenging activity she finds important if risky, but a motorist should not be free to drive unbelted since such a liberty does not reflect any beliefs or values of importance to that agent. In this paper I argue that excluding some liberties that can lead to severe harm, but including other liberties, is arbitrary. There is no solid case for selective exclusion if we take seriously what I call the Capacity for Autonomous Decision-making (CAD). According to CAD, all largely self-regarding liberties, however seemingly trivial, should be granted to persons as the default, which amounts to a basic right of self-direction. I then consider the possibility that we have legally enforceable duties to care, up to a point, for those who have culpably harmed themselves, and whether such costs permit us to restrict certain liberties in the fashion defended by proponents of selectiveness. I conclude by considering a Coasean bargain as an alternative to outright inclusion or exclusion of liberties: if liberty is the default, perhaps we can offer to pay people not to engage in certain risky behaviors or activities; if restriction is the default, perhaps people can buy the freedom to engage in any number of risky behaviors or activities.