PUBLIC HEALTH ETHICS

VOLUME 9  NUMBER 2  2016

 139–149

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Political Theory, Values and Public Health Stephen R. Latham , Interdisciplinary Center for Bioethics, Yale University 

Corresponding author: Stephen R. Latham, Interdisciplinary Center for Bioethics, Yale University, 238 Prospect St., New Haven, CT 06520 USA.

Tel.: +1 203 432-7349; Email: [email protected]

This article offers some general criticisms of the idea that any political theory can legitimate public health interventions, and then some particular criticisms of Civic Republicanism as a political theory for public health. Civic Republicanism, I argue, legitimizes liberty-infringing public health interventions by demanding high levels of civic engagement in framing and reviewing them; to demand such engagement in pursuit of such a baseline value as health will leave insufficient civic energy for the pursuit of higher values.

Introduction: Political Philosophy and Political Theory How should a person who is concerned for the public’s health engage with political theory? The question is narrower than it might first seem, if we think of ‘political theory’ as a subset of a broader category of thought called ‘political philosophy’. Moreover, in most of what follows, I will in fact be dealing only with a narrow band of ‘political theory’—the part whose primary concern is with the legitimacy (rather than, say, the explanation, or the classification) of types of political action. Of course, a concern with public health could find itself engaged with broader political philosophy in a number of ways. Consider the political-philosophical status of the rule of law during a great public health crisis, like a pandemic on the scale of the 1918 influenza. In 1 week of that summer, as many people died in the city of Philadelphia as had died in the previous full year. There were weeks during 1918 when, in certain regions of the USA, only 1/3 of the ordinary workforce reported for duty. The rest were sick, or caring for sick relatives at home or quarantined (Crosby, 2003). In any such circumstance, a very large number of laws seem, well, superfluous. Mandatory nurse-to-patient staffing ratios, for example, are simply impossible to maintain when two-thirds of the nurses in the county are stuck at home. And what of requirements that care homes provide their patients with two hot meals per day? Or that sheets be changed twice weekly? In time of pandemic, a certain number of laws simply need to be ignored—and not just ignored in the moment, but ignored, as it were, legally, such that harmful violations of them are no basis for later redress. A certain number of perfectly valid and sensible laws need to be suspended temporarily.

Here is a question for political philosophy—and for jurisprudence. Who shall decide which laws are suspended? What sort of showing is necessary for such a suspension to be valid? When does the suspension end? ‘Sovereign is he who declares the exception’, said Schmitt (2006); but we do not have to follow his political theology in positing an omnipotent sovereign who exists prior to and outside of the law. Still, the jurisprudential question is tricky. Assume that for reasons of simple human fallibility (and legal complexity) we cannot anticipate, in advance, which particular laws will need to be legally invalidated during a pandemic. Is there a way to permit someone to exercise discretion as to which laws to treat as invalid during a pandemic, but to contain that discretion within a framework of procedure (including standards, procedures for review, required timing and so on) in such a way that the pockets of lawlessness the discretion permits in time of crisis nonetheless retain the characteristic of being lawgoverned? So, one way in which a person with public health concerns could engage with political philosophy is by thinking about exceptional circumstances to which public health crises give rise. Another way involves not the exception, but the rule: or rather, the all-pervasive, all-measuring set of rules by which modern public health (like modern government more generally) relentlessly watches and measures and attempts to improve the bodies of the members of the public; or rather, the statistical average body of some representative member of the public. It has often occurred to me, when I read about sexual-contact tracing or portion-control or trans-fat taxation or ecigarette bans that the political philosopher of contemporary public health is Foucault. Contemporary public health, after all, is bio-power in action. Bio-power was

doi:10.1093/phe/phv033 Advance Access publication on 9 December 2015 ! The Author 2015. Published by Oxford University Press. Available online at www.phe.oxfordjournals.org

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Foucault’s collective term for the set of strategies employed by governments to manage whole populations— to ensure a healthy workforce, for example.1 Bio-power is therefore the population-wide counterpart of his idea of ‘discipline’, the strategies aimed at ensuring individual persons’ conformity and normalcy.2 In early modern times, government mostly left people alone; but in certain circumstances (circumstances which were the subject of much political thought), it could sweep into your world and exert its power over you. Modern public health is completely different: instead of swooping in on rare occasions to kill you, it hums along under your everyday life, keeping you alive—ensuring that your herd is vaccinated, guaranteeing you food and medicine, assessing the risks you face and eliminating unacceptable ones, changing your habits with large and small intrusions into your liberty, pumping information at you, controlling the quality of the air you breathe and the food you eat and the water you drink and the car you drive and the highway on which you drive it. A good 18th-century Lockean might sensibly fear coming to the government’s attention; but the 21st century nightmare is that the government has deleted your records, or eliminated the regulation that previously kept you safe. But this collection, and therefore this article as a contribution to this collection, is not devoted to thinking about the full range of engagement of political philosophy with public health, but with the rather more narrow range of political theory questions addressing the legitimacy of government action in the name of public health. One might frame our topic in terms of the following question: ‘What sort of political theory can legitimate the kinds of public health interventions we think governments should make?’

Reflective Equilibrium Framing it this way would seem to require a familiar kind of reflective-equilibrium3 analysis. We might begin with some sort of list of public health interventions that we—I leave aside, for the moment, a precise delineation of who ‘we’ are—think governments ought to be able to make. Next, we would locate (or invent) a political theory that would accommodate those interventions. But the articulation of our theory might affect our prior intuitions about which interventions really are legitimate; so we might have to revise our list of permissible interventions, or alter their features. We then go back and forth between policy intuitions and theoretical commitments, modifying each until we reach equilibrium. At that point, our fully articulated political

conception will, we hope, legitimate all and only the interventions-as-modified that remain on our list. This approach is suggested to me by some work of Bruce Jennings (2007), in which he promotes Civic Republicanism as a preferred political theory for public health in part because it has the resources with which to legitimate certain public health interventions. I am skeptical of this sort of reflective equilibrium, both in itself and as a tool for legitimation of public health interventions. I will briefly offer a few reasons for my skepticism. First, all political theories are wrong. Or, to put the matter less aggressively, all political theories are, at best, partially right. This is not to say that we cannot learn from them, or that it is not valuable to generate them. A good political theory can and ought to be interestingly, engagingly, provocatively partial. It is particularly valuable if the theory is partial in a way that reminds us of, or alerts us to, the forgotten partiality of other political theories. My point here is that partiality is in fact part of the qualification for something’s being a normative theory, whether in ethics, jurisprudence or politics. An attempt to theorize always involves the attempt to capture the essence of our infinitely complex, geographically situated, historically contingent relationships in a formula with a small number of variables. (In political theories those variables commonly include an ideal decision procedure; a small number of important concepts—‘consent’, ‘liberty’, ‘alienation’; and perhaps a set—possibly a ranked set—of important values.) Application of the formula to real-world problems will nearly always require resources from outside the theory in question. Nonetheless, application of important though partial criteria to a set of possible policy tools (like public health interventions) may indeed be useful, provided that we recall the partiality of the criteria before we finish our analysis. Various brand-name political theories differ from one another mainly in the degree to which they elevate or privilege certain values over others. Nearly every political theory will, at least in part, judge public health interventions on the basis of how far they interfere with liberty in the name of securing health. But some will be more concerned than others with whether particular interventions exacerbate or create or ameliorate social inequality; whether they create—or must, to be effective, be parasitic upon a previously created— solidarity; whether they can be expected to achieve their goals efficiently; whether the values they implicitly endorse are the sorts of values which it is proper for government to endorse; and so on. Even within any given political theory, these values will conflict. (There

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are political theory views which are exceptions to this statement, precisely because they fetishize particular values—often liberty—to such an extent those values must ‘win’ in every case of conflict; such theories can be classified as provocatively but not interestingly partial.) Let us see what is actually included in our proposed reflective equilibrium exercise. Consider the following decidedly partial list of fairly common public-health interventions: dissemination of information about health and safety; warning labels; bans on dangerous stuff (drugs, pollutants); required safety devices (seatbelts, kill-switches); time-place-manner restrictions on sale of dangerous stuff (no cigarette machines in bars, no alcohol in petrol stations, no gun sales by mail); age limits on certain activities (drinking, driving, smoking); taxation to discourage consumption of undesirable stuff (alcohol, cigarettes); mandatory medical testing (at birth, at marriage, after arrest); mandatory medical intervention (childhood vaccination, civil commitment for mental illness, enforced and supervised antibiotic treatment for tuberculosis); mandatory disease reporting and contact-tracing; seizure of dangerous property (like infected livestock); quarantine and isolation. From this list—the whole of which we intend to deal with eventually—we can, for now, select a single possible public health intervention for fit with our favorite political values. Let us suppose we choose mandatory childhood vaccination. And let us say that we wish to analyze its legitimacy given a political theory which places a very high value on personal liberty. We can begin with some facts about the proposed intervention. Vaccination is among the most cost-effective interventions in the public-health arsenal. It demonstrably prevents a large amount of devastating disease at little cost4; the phenomenon of herd-immunity means that vaccination is not just a paternalistic intervention, but also an intervention on behalf of a genuine public good (in the narrow economists’ sense—about which, more later). That is to say, a vaccination program interferes with my liberty not just for my own sake, but for the sake of others whom my vaccination will save from harm, and whom I might subject to harm if I am permitted to refuse vaccination. The intuitive case for this liberty-violation is pretty strong, given the relatively minimal violation involved (the inconvenience of making a medical appointment, the pain of a few jabs). But there are a number of available objections to participation in a vaccine program. Some objections have a medical basis: potential for a serious vaccine response or allergy. Some objections are based in broad religious objections to medical intervention as the correct



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response to the human condition of mortality. Some are secular-philosophical—for example, an animalrights objection to use of vaccines developed using animal models. Some are based on misinformation peddled by fraudster Andrew Wakefield (Godlee, 2011), anti-vaccine activist Robert F. Kennedy, Jr.,5 former Playboy model Jenny McCarthy6 and selfaggrandizing real-estate mogul Donald Trump (Abrams, 2014). And not all vaccines are on an equal footing even as regards each of these objections: some vaccines include thimerosal and some do not; some vaccination procedures involve multiple simultaneous vaccines and some do not; some vaccines are for diseases (like human papillomavirus) which one can only acquire through voluntary risky behavior; and so on. So, suppose we begin with a theory that sets a high bar for interference with individual liberty. We intuit that mandatory vaccination passes that bar on something like classical harm-principle analysis. But now we begin to realize that some instances of vaccination implicate more than liberty from unwanted medical intervention: they implicate religious liberty, liberty of conscience and in rare cases interests in physical security. Our proposed intervention will need to be tailored to account for our political theory’s general views toward religious liberty—and we will need to think about whether religious liberty should receive theoretical priority over other non-religious philosophical and political convictions. At some point in the analysis, too, we will have to deal with the costs—in currency, in effort, in governmental reputation, in time—of accommodating the various demands our theory seems to make of us. Perhaps telling the difference between a religious and a secular-philosophical objection to vaccination is sufficiently difficult that we will have to bend on our original idea that specifically religious liberty should enjoy some priority over more broad liberty of conscience. Or perhaps we will decide to elevate non-religious moral objections to vaccination into the same category as religious objections. But that still leaves us with the question of what to do with the misinformed. The very process of sorting them from those with ‘philosophical’ and ‘medical’ objections will be resource-consuming, threatening to liberty and undermining of people’s trust in other government interventions. Forcing vaccination on ill-informed people, even if they can be identified, does implicate important liberty interests, because at the theoretical level we worry about the correctness of governmental, as opposed to private, judgments about science and risk-aversion, and at least in the United States, we regard liberty with regard to childrearing as particularly sacrosanct.7 So we are going to

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need some sort of investigative adjunct to our vaccination program, or some sort of opt-out program with well-articulated limits. And we will need to establish a hearing or appeals system to sort out the questions we cannot think of in our armchairs in advance. And should we compensate people who are in fact injured by vaccination? Will we want full-blown scientific proof of harm and causation, or something less expensive and easier to administer than that? By the time we complete this process of determining exactly what sort of vaccine intervention is legitimated by our political theory, the intervention itself will have become very complex, and its precise shape will have been determined in part by reference to facts and values well outside our normative political theory: facts about the quality of scientific evidence, about the workability of a swift appeals process, about the percentage of people in our population who are misinformed and so on. And in addition to that, our commitments to our original theory in its pristine state will have been altered here and there by considerations of valueconflict and of prudence. Indeed, part of what will have to be accommodated in any application of political theory to a concrete policy problem is that the people affected by the policy in question have, themselves, commitments to differing political theories.8 Now repeat this with every one of the interventions I listed above, starting in each case not with the pristine political theory of your initial choice, but with the theory as modified or compromised by consideration of the previous intervention(s). The resulting piece of public-health machinery will, I predict, have many moving parts. And the resultant picture of political legitimacy will be sufficiently complex and grounded in legal and factual contingencies that it will no longer be explicable or justifiable by any political theory. Of course, even the best-possible execution of the above exercise will not render the public-health interventions (as modified and specified) legitimate, for the simple reason that we cannot choose our overall political commitments via direct consideration of public health interventions alone. The particular conception of political life (whether a political theory or the experience-dented descendant of one) we use to legitimate our public-health interventions will also have to legitimate the activities of our police and intelligence communities, our public-school curricula, our highway design, our airwave auctioning policy and our farm subsidies. Pristine theory may usefully provide us with rhetoric to support interventions we favor—rhetoric which may, in its partiality, contrast usefully or strikingly with

prevailing political rhetoric, or with the rhetoric of those who oppose the options we favor. But I do not think that a clear, simple, un-compromised political theory of any sort can survive the activity of attempting to bring it to bear on a broad range of real policy options. For that reason, I am not sure how much need there is to start our evaluation of possible public health interventions with such a theory in mind. It is true that different views about the priorities of different values will result in different policy preferences; but I see no reason why policy debate cannot proceed directly from argument about value priorities, rather than by beginning with a set of value priorities embodied in a theory, and then using a mix of intuition and pragmatism to beat the theory into practical shape.

Resources of Contemporary Real-World Liberalism Most of the developed world operates under some complex political conception which is the mutt offspring of liberalism—generally a perfectionist liberalism, broadly tolerant of a large number of competing visions of the good, willing to weed out some harmful ones, living in grudging modus vivendi with some, and heavily reliant on procedural remedies for resolution of conflicts among competing conceptions of the good. I believe that family of conceptions has sufficient normative resources to legitimate most public health interventions without recourse to republican rhetoric. Here are a few reasons why: (1) Many of the most liberty-infringing public health interventions are straightforwardly justifiable using a classical liberal harm-principle9: quarantine, isolation, destruction of infected animals, vaccination, smoking bans and gun-control regulations all have this character. In this connection it is no coincidence that the rhetoric of public health has focused on the third-party effects of the unhealthy habits it attempts to regulate, or of the health measures it attempts to mandate, even when those regulations and mandates are, on any objective view, primarily paternalistic in character. Vaccinating a child is primarily about preventing disease in that child; but the achievement of herd immunity is what we discuss. Smoking regulation is primarily about getting people to quit smoking for their own good; but it is the ill-effects of second-hand smoke that we concentrate on. We hear now that obesity is catching

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within social groups; this is the beginning of a kind of harm-to-others argument that will justify otherwise paternalistic food interventions. In most countries (including the United States, though many would like to forget that), the bulk of medical care is paid for by government funds. This has the effect of converting (and not just notionally, but really) many self-regarding health behaviors into third-party-harming behaviors. Your obesity will raise my taxes.10 (2) Less liberty-infringing interventions like public service announcements, warnings, educational programs, research funding and tax incentives often involve government taking non-neutral positions with regard to substantive elements of what makes lives good. But this is not illiberal, primarily because nearly every substantive conception of the good includes good health. There are certain exceptions (ascetics and self-mortifiers), but even most of these have no objection to government intervening on behalf of the health of others who do not share their views. Moreover, health security is in fact widely accepted by many different substantive viewpoints as a legitimate aim for governments to have on behalf of their citizens. (3) There may a further reason for liberals to approve of public health interventions. I believe that, as a formal matter, each individual person’s health is actually a ‘public good’ in the strictest economic sense—a good that will be systematically underproduced by private markets, and that therefore has to be subsidized by government. My health, after all, matters to many others apart from me. The social benefits of my being healthy greatly exceed those that I enjoy myself. When I am healthy, the plans I make with my colleagues and students and family and friends are all subject to relatively little uncertainty. When I am sick, papers show up late for conferences, meetings get cancelled, alternative childcare arrangements need to be made. And just as my health benefits more people than just myself, so also my illness imposes costs on others beyond those that they impose on me. My health is therefore a ‘non-rival’ good. My own enjoyment of it does not ‘use it up’; my colleagues and family and friends can all enjoy it too. Consumption of my health is also ‘non-excludable’. Except in very rare and limited circumstances, I cannot selectively withhold enjoyment of my health from certain others—from those who, for example, declined to pay me for it.



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For these reasons, individual health is a public good. Its social value is greater than its value to any one individual, and no one has the means of capturing that differential. So no private arrangement I can enter into will result in my spending enough on my health to achieve social optimality. It is therefore the business of government to subsidize my being kept healthy for the benefit of others, and this it does in part through public health interventions imposed upon us all.11

Civic Republicanism I turn now to two related problems with Civic Republicanism12 as a political theory for public health. The first involves features of Civic Republicanism fullstop; the second deals with its relationship to public health in particular. Civic Republicanism famously differs from classical liberalism in the nature of its worries about liberty. The Civic Republican fears not (merely) interference with personal liberty, but ‘domination’—roughly, the condition of one’s being subject to another’s arbitrary will, even if that will is only ever exercised beneficently, or is never actually exercised at all. A benevolent master may have a happy slave, but the slave is nonetheless under his master’s dominion; happiness is not liberty, and liberty deserves constitutional priority. At the same time as they express concern for nondomination rather than mere non-interference—and here we get to the attraction of Civic Republicanism for apostles of public health—some formulations of Civic Republicanism seem, even as they condemn conditions of domination which do not actually constrain anyone, to permit more room than liberalism permits for certain constraints on individual liberty. Constraints, Civic Republicans argue, are legitimate (in the sense of not interfering impermissibly with liberty) provided that they are not the product of domination by an alien force, but are instead the product of a government whose citizens have many opportunities and many ways to shape, alter and revisit the constraints it imposes. (Some Civic Republicanism has a Kantian flavor, thinking of freedom as restriction by a law of one’s own making; other less metaphysical strains concentrate on the avenues of influence on governmental action available to citizens.) For a citizen to be constrained by laws that she has had many opportunities—importantly, the same opportunities as other citizens—to shape and revisit, is not to be dominated by any outside force, but to be dominated by a political machinery in which one has an active and voluntary part. It is a very flat-footed sort of liberal,

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indeed—does any such actually exist?—who asserts that to find oneself constrained by laws of which one has actually approved is, somehow, an impermissible interference with liberty. Tyranny of the majority poses an important threat to Civic Republicanism. The democratic political institution of majority rule can easily give rise to impermissible interference with liberty in particular cases, and—what is more upsetting to the Civic Republican—can amount to the instantiation of a permanent structural domination of minority groups by the majority. The Civic Republican answer to this is 2-fold: first, it is necessary to create counter-majoritarian political institutions such as civil and political rights, legal rights of appeal to an independent judiciary, official recognition of some scope for local institutional authority, proportional representation rather than first-past-the-post elections and so on. Second, and possibly more important, is the need to cultivate civic virtue and active political participation. Particularly in a large modern state, a vigilant and activist citizenry is the primary force preventing ordinary governmental actions from slipping into domination. One is dominated if one’s government is perceived as an alien force. One is dominated if one is unaware of the kinds of authority being exerted over one, even if the exertion is benevolent. The ordinary workings of a democratic government will impermissibly dominate the citizens unless they participate actively in debate about policies that will affect them; respond swiftly with criticism and proposed counter-measures when their interests are threatened by a new or proposed policy; mobilize votes and candidacies and petitions about every aspect of governance that threatens them, from zoning to health insurance coverage, from parking regulations to air quality. Non-domination, as Oscar Wilde might have said, will take a lot of evenings. I take the Wilde witticism to constitute a serious objection to Civic Republicanism. Non-domination is supposed to be an important baseline condition of life for Civic Republicans. But if the mere maintenance of that baseline condition requires, as I think it does, an extraordinary degree of vigilance and participation, then that is a problem. When are people supposed to take advantage of their non-dominated state to build private lives with private sorts of excellence? And more importantly, how much effort must the citizen exert—how many evenings must she devote?—to obtaining from her government something that passes for competence, let alone excellence? I wish now to introduce a tiny bit of vocabulary drawn, in a modest and wholly unoriginal way, from value-theory—specifically from the value theory of

Nicolai Hartmann, a leading German philosopher of the first half of the 20th century.13 Hartmann was concerned with the hierarchy among values. For Hartmann, not all values are equally valuable, or valuable for the same reasons. The particular characterization of hierarchy among values that I wish to discuss here is Hartmann’s distinction between ‘high’ values and ‘strong’ values, and his claim that height and strength of values are in inverse proportion to one another (Hartmann, 2003; Kolnai, 2008). Before discussing the height/strength distinction, however, I wish to stress how very little of Hartmann’s—or of anyone’s!—value theory I mean now to import. I want my use of Hartmann’s distinction to entail as few meta-ethical commitments about value as possible. For the distinction to be useful, we need not accept value-realism (the view that values are objectively ‘out there’ to be discovered and described, in the way that cows and laptops are). We need not even have a terribly well worked-out definition of values. Provisionally, let us assume (following more contemporary value theorists such as Elizabeth Anderson (Anderson, 1993)) that values are qualities of persons or things that it is appropriate for persons to value. We appropriately value virtues in persons; strength and speed in horses; reliability in engines; transparency in governance. (The business about ‘being appropriate’ is meant only to signal that something does not become a value just because someone, somewhere, happens once to value it. Whether what makes an instance of valuing ‘appropriate’ is some objective assessment of the thing valued, or some culture-bound intersubjective judgment, or the product of an individual’s reflective equilibrium or some other process, I leave undecided.) With this vague idea of ‘value’ in place, I need us to accept only some fairly straightforward theses about the place of values in our moral lives. For example:  Each of us has and pursues various values. Different cultures place heavier accents on different values: some cultures have been more martial, some more sensitive to honor, some more consumerist, than others; and the values their members have pursued have varied with those characteristics. Within different cultures, individuals’ care for and pursuit of values also differs, though some cultures are more uniform than others.  Many values have corresponding dys-values. Honor and dishonor, transparency and secrecy, stability and instability are obvious examples. Sometimes dysvalues are harder to name: health as ‘the silence of the body’ has multiple dys-values, including

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disability and pain. In general (as Aurel Kolnai repeatedly pointed out14) we have stronger aversions to certain dys-values than we have attractions to their corresponding values: we dread pain, but do not particularly appreciate or honor its absence; and similarly with fear and anxiety.  Various major spheres of human activity—political, scientific, artistic, romantic, economic, religious and so on—are each associated with various values. The association is difficult to articulate, but it is something like this: values guide activity within any sphere insofar as people within that sphere are working to instantiate, through their work, the values associated with that sphere. Politicians aim at justice, at interest-satisfaction, at equality, at pragmatic workability. Artists aim, perhaps, at truth or expressivity or self-revelation or sublimity or ‘interest’. Scientists aim at non-falsifiability, predictability, perhaps at elegance. This variation means that values that might be important in one sphere of life can be very unimportant in another. An example is efficiency, which might be valued highly in economic activity, but valued less in religious or artistic activities. Another is fame, which is notoriously valued in the political sphere, but may be of little value in the religious. Justice is central value of politics, but has a much smaller place in science.  Values can conflict, not only across spheres of activity (as when religious values of purity clash with political values of tolerance), but also within them (as when the value of equality conflicts with that of liberty within politics). I make no particular claims about what spheres of activity there are—whether there is a finite number of them, how continuous they are with one another, etc. To go on, I need only the idea that different sorts of human activities are associated with different values, and that these values can conflict. All of this I take to be fairly non-controversial, not least because I mean them only to track ordinary language about value, without digging any more deeply toward underlying metaethical commitments. If I have excited controversy my preferred response would be to pare down the above claims in order to avoid it—to dodge questions rather than to answer them. Now to Hartmann’s distinction. A value is ‘high’, on Hartmann’s view, if its achievement (what I am calling its instantiation through activity) merits great praise. A value is ‘strong’, on the other hand, if one’s being deprived of it is a great wrong. (One is deprived of a value if its corresponding dys-value is instantiated through activity, or if the value’s instantiation is



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destroyed.) Stability is a strong value in politics; a regime that lacks stability does its citizens great harm. On the other hand, for a regime to be stable is not particularly to its credit. Stability is a strong value, but not a particularly high one. It is basic, in the sense that only a stable regime can hope to become great, but it is also low. ‘Low’ here is no insult—we are talking, after all, about values. The correct metaphor here might be architectural: the strongest and most basic building blocks are low, and they are the condition of the possibility of reaching great heights with less strong building material. High values are those whose fulfillment confers greatest merit—universal love, for example, or artistic beauty. ‘Sinning against lower values’, Hartmann wrote, ‘is ignominious, shameful, revolting, but their fulfillment only reaches the level of decency, without rising above it. Offending against higher values, by contrast, does indeed have the character of moral failure, but nothing of the directly degrading, while fulfillment of these values may have something uplifting, liberating, indeed thrilling about it’ (Hartmann, 2003). Hartmann gives the example of heroism—a high value that warrants admiration, even though a lack of it does not arouse contempt or indignation. Trustworthiness, on the other hand, is a very strong but low (and basic) moral value. Merely being trustworthy is no great moral achievement, while lack of trustworthiness warrants contempt. Life and health are, for most of us, the quintessential strong values. One who deprives another of his life, or who injures his health, has greatly wronged that other. But no person deserves much praise merely for being alive and healthy. Being alive and healthy is merely the baseline from which a person can hope to build toward higher achievements. Note, though, that though strong values tend to be simpler than higher ones, and though our higher values tend to depend upon and be constructed upon the achievement (consolidation?) of the stronger, nonetheless strong and high values can come into conflict. One can deliberately sacrifice one’s health for one’s art; one can choose to die for the sake of justice. In such cases, the achievement of higher values comes at the expense of stronger ones. Now, it seems to me that every political theory (except perhaps anarchism, which may not actually qualify as a political theory at all) must be committed to the idea that the state should be run in such a way as to secure low, strong values for those within its territory. If the political enterprise is supposed to do anything, it is supposed to do that. Political theories differ considerably about which low, strong values they are supposed to

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secure—I take Nussbaum’s capabilities theory, for example, to be naming a longer and more detailed list of low, strong values which a just state should secure than would the foundationally liberal anonymous author of the Vindiciae Contra Tyrannos. But the values she names fit the Hartmann schema: to be deprived of them is to be deeply harmed, but there is nothing terribly elevating about merely being in possession of bodily integrity, say, or of property rights similar to other people’s, or of basic education, or of the ability to laugh, or to have healthy relationships with animals. The central capabilities are meant to be the foundation from which higher values may be attained. Civic Republicanism, of course, conceives of nondomination as a low, strong value. The trouble is, that that low, strong value is very difficult to achieve in a polity of any size. Achieving it, as I have argued, requires energy, virtue and all those evenings. Having achieved and maintained their non-domination, the citizens of a Civic Republic collapse into bed to re-energize for the same battle tomorrow. There is no time, and little private space, for the pursuit of higher values. Some prominent Civic Republicans have attempted to address this question of how much vigilance will be required of republican citizens in order that they secure something that counts as non-domination. Philip Petit (2012), in recent work, has argued that although vigilance among the citizenry is required to maintain the condition of non-domination, nothing like the romantic idea of each citizen exercising a ‘panoramic, altruistic form of oversight’ is required. Nor does non-domination require full Rousseauvian citizen participation in any ‘grand, will-forming, law-making exercise’. Petit instead envisions a kind of ‘division of labor’ in citizen vigilance: vigilance conducted by specialized non-governmental organizations which could effectively monitor governmental activity in their areas of specialization, with membership recruited from the citizenry on the basis of their interests and concerns. This seems like a heartening response to Wilde: not everyone needs to spend those evenings on everything; we can delegate! But I suspect that it cannot be as heartening as it first seems. Let it be the case that a few activist members of our community can work for us on instantiating the low, strong values of public health, and that their work on our behalf will save us from domination. We must first be careful that these invigilating groups not become mere interest groups—physician organizations lobbying for more money, pharmaceutical firms looking for advantageous patent rulings, hospitals looking for more favorable labor regulation and so on. The invigilators must be working disinterestedly for the

public good. They must be motivated not by the prospect of private gain, but something like patriotism: a commitment to establishing a non-dominating government in their country. This sort of commitment is indeed a virtue. And it is plain that Civic Republicans want this virtue to be cultivated among the whole of the citizenry. Not everyone has to invigilate the public health system, but everyone who loves his/her country ought to be virtuously invigilating some piece or another of the government. Petit seems to sense that the ‘too many evenings’ objection could be a real one, and he offers this response: As long as government officials know that their virtuous citizens are poised to intervene when they act against the popular will, their actions will be constrained by that knowledge. (Petit calls this ‘virtual’ influence.) In addition, even where the public has no particular preferences formed on a given policy issue, the public’s general disposition to intervene when things go wrong will exercise a kind of ‘reserve’ influence on government officials. The overall effect, Petit claims, will be that actual interventions may not be required that often. To make one last use of the Wildeism: it may turn out that willingness to spend all those evenings is a partial substitute for actually spending them. On the other hand, remaining poised to act and maintaining a general disposition to intervention is hard work—harder work, for example, than merely responding with outrage when things go awry. Remaining poised requires not only a level of mental energy sustainable only by virtue, but also a reasonable effort to stay informed of the doings and considerings of government. Must eternal vigilance be the price of health? Health is a classic low, strong value. It is a baseline, a good with which we are meant to be supplied in order that we might move onward—and upward! But if the pursuit of health requires at least some of us to engage intensively, independently of our interests, in aspects of political life that ensure our baseline health, then there is little chance for us to move on or up, or for us to use our energy to push our whole community on or up. Might it not be better for us to regard the provision of public health not as a community goal toward which some of us must pitch our personal energies, but as a baseline, about which we should not have to think? Government ought to keep us healthy, in the same way that it ought to keep us secure, and in the same way that it ought to keep its own rule stable. Our energies, as citizens, should be devoted to higher goals. If our lack of vigilance permits government to fail to deliver on low, strong, values, then we rebel—either at the ballot box or on the streets.

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This position, of course, is the polar opposite of some Civic Republican arguments. Bruce Jennings (2007) has written that the very notion of public health (which he opposes to the mere aggregation of individuals’ healthstates) makes public health policy an ideal seedbed for the growth of civic virtue. The shared community value of public health is, on his view, a natural goal around which rich, participatory Republican community might coalesce. But is this value, shared though it may be, worth our coalescing around? Imagine a person who devotes his entire life to maintaining a perfect physique—he monitors his diet, he exercises religiously, he spends his every free moment making sure that he is healthy. He is vigilant; he exercises considerable virtue in the pursuit and maintenance of his health. He has no time to enter athletic competitions, or to go on long walks with his family; every second of his time is devoted to maintaining his health, and none is devoted to using his healthy body as an instrument for any other activity. This is an extreme analogy, but one which makes the point I am concerned with here. There may be structural reasons to think that Civic Republicanism’s concern with nondominance will lead any Civic Republic to expend all its citizens’ energies merely in maintaining themselves as free. And there may be a logical problem in expecting full Civic Republican engagement to be aimed at achieving health. Health is too basic a goal to demand citizens’ time. Citizens should be engaged in the pursuit of higher values. If governments cannot provide them a platform from which to be so engaged, they are failures and should be dismissed. The Civic Republican might argue here that Civic Republicanism is the correct political conception to justify public projects, and interferences with liberty, in the name not of that simple building-block of decent human life, physical health, but in the name of Health broadly construed, i.e., as construed by the World Health Organization, to include all of physical, mental, and social well-being. ‘Health’ now stands in for every possible low value. But the result seems to me to be no better: A Civic Republicanism aimed at promoting Health thus broadly construed would recruit our full energy and engagement to the project of establishing (articulating and instantiating) all of the basic, minimal, decent underpinnings of shared life. But all of those evenings spent securing well-being will not be spent writing novels, or philosophizing, or reforming religious dogma, or falling in love, or shooting Vines that go viral. Nor will they be spent in working, as virtuous citizens, to commit our republic to supporting the arts, or to



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building world peace, or to being sensitive and informed stewards of our planet. In sum, a political theory that depends upon intense citizen engagement to supply legitimacy for interferences with liberty that secure only the basic building blocks of decent human life is a political theory that leaves too little time and energy for private pursuits— or, indeed, for public pursuits—of excellence. Might it not be better for a government simply (and paternalistically) to give the people the health—and the security, and the peace—they need, without demanding their legitimizing engagement in that project, in a way that leaves them free to engage their attentions and cultivate their virtues in pursuit of higher, weaker values?

Notes 1. For Foucault’s few (and gnomic) direct utterances on bio-power, see Foucault, 1976, 2007. 2. For Foucault’s central development of the idea of ‘discipline’, see Foucault, 1975. 3. The term ‘reflective equilibrium’ was coined by Nelson Goodman in 1955 and greatly popularized by its use in Rawls (1999 rev’d ed.). See Daniels, 2011. 4. Basic childhood vaccinations prevent more than 2.5 million deaths annually worldwide (US Centers for Disease Control and Prevention) 5. On Kennedy’s history with anti-vaccine activism, based on an alleged connection between vaccine preservative thimerosal and autism, see Kloor, 2014 6. On McCarthy’s recent attempts to distance herself from her anti-vaccine activism, see Kluger, 2014. 7. I am thinking here of the legal tradition beginning with the early substantive due process Supreme Court cases, Pierce v. Society of Sisters, 268 U.S. 510 (1925) (upholding rights to private religious education) and Meyer v. Nebraska, 262 U.S. 390 (1923) (upholding a right to education of children in their family’s native language), which were later cited in family-planning cases, abortion cases including Roe and its successors, and cases involving parental control of children’s medical care. 8. The process I am describing differs from the ‘fourstage’ process of adaptation of theory to practice outline by John Rawls in his theory of justice (Rawls, 1999 rev’d ed.). His constitutional, legislative and adjudicative stages are all being conducted by parties who have agreed to the initial principles of justice. The process I am describing here involves attempted application of theory to public health

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problems that affect a public who do not subscribe to our theory. 9. There are, of course, multiple versions of the harmprinciple floating around, and not all liberals accept the harm-principle. For a comprehensive critique of the principle, see Holtug, N. (2002). The Harm Principle. Ethical Theory and Moral Practice, 4, 357–389. I cannot discuss these issues further here. 10. Of course, not every self-harming health-behavior has a negative effect on the government’s budget. Cigarette smoking is bad for you, but reduction of smoking in the population seems not to save governments much money in the end, since those who quit smoking and therefore do not die from smoking-related illness tend to die later of other, more expensive diseases. See Barendregt et al., 1997. I am grateful to commentators at the ‘Toward a Republic of Health’ conference for reminding me of this point. 11. Many of the Southampton conference commentators were skeptical of my claim that personal health is an economic public good. Several participants claimed, in particular, that people have sufficiently intense interest in their own health that the nonexcludable and non-rival character of the good of their health will not lead them to undersupply it to others. I respectfully disagree. A large number of studies, from the US RAND study forward, have clearly established that when people are asked to pay first-dollar for their healthcare (that is, when they are not subsidized by insurers or governments), they underinvest in it. For a summary of the RAND study and its results, see Brook et al., 2006. A reviewer for Public Health Ethics commented that I cannot reason from the (well-known) underproduction of health by the market to its being a public good, because underproduction of health may have other roots. But that is a misreading of my argument. I am not relying on underproduction to ‘prove’ that individual health is a public good; individual health is a public good because it is non-rival and non-excludable in the senses I have outlined. Because it is a public good, we can expect that free-market transactions will produce less of it than might be socially optimal. And we have evidence—over-determined though the low production may be—that this is what happens. The overall point is simply that liberal states have reason to address market failure with subsidies and regulation, and that individual health, in itself, may be the sort of thing that gives rise to market failure.

12. I refer here to the term as elucidated by political historian Quentin Skinner in, e.g., Skinner, 1998; Petit, 2012. 13. Much of the discussion of Hartmann that follows is self-plagiarized from a more thorough development in my forthcoming chapter (Latham, forthcoming). 14. On the comparative strength of aversion to dysvalue over attraction to value, see the essays ‘The Standard Modes of Aversion: Fear, Disgust and Hatred’, in Kolnai, 2004, 2008.

Acknowledgements I am grateful for comments received from discussants and participants at ‘Toward a Republic of Health?’, a conference co-sponsored by the Centre for Health, Ethics and Law (HEAL), University of Southampton and the Institute of Health and Social Policy (IHSP), McGill University, in May, 2014.

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