Cosmetic surgery and the harm principle
In this post, Jan Kandiyali considers the issue of the regulation of cosmetic surgery, and asks whether more robust regulation or even criminalisation would be justified by an appeal to J.S. Mill's harm principle. Jan is the research network administrator on the Beauty Demands project, and an honorary research fellow in philosophy at the University of Sheffield. Comments and criticisms on this piece are welcome - email Jan here.
One issue that was much discussed at the second workshop centred on the question of regulation: should the state take a more robust approach to the regulation of cosmetic surgery than it does at present? Is there a case for some forms of cosmetic surgery being criminalized?
Now, one influential way of approaching these questions comes from the great liberal philosopher, John Stuart Mill. In his essay On Liberty, Mill famously argues for ‘one very simple principle’ that he claims will allow us to decide, on a case-by-case basis, when the state can rightfully use its powers to interfere with the liberty of its citizens. The canonical expression of the principle states that the ‘only purpose for which power can be rightfully exercised over any member of a civilized community, against his will, is to prevent harm to others. His own good, either physical or moral, is not a sufficient warrant’.
In the course of the essay Mill qualifies this principle – typically called the harm principle – in various ways. For instance, he says that speech or action need not actually harm others to justify sanction; rather, the threat or incitement of harm is enough. In addition, there are also important questions about how the principle should be interpreted, not least about how we should interpret the notion of harm itself. But it would not do violence to the complexity of the Mill’s idea to read him as saying that the state must let people act as they like, so long as their actions don’t harm, or threaten to harm, others.
Put this way, the harm principle sounds very attractive. It captures the familiar intuition that, as long as you don’t hurt other people, what you do is nobody else’s business. Yet we should be clear that the harm principle also has some radical – and some might say unpalatable – implications. To give just one example, the harm principle rules out appealing to the addictive and injurious nature of recreational drugs as justification for their criminalization. Of course, it may be true that drugs are addictive and injurious. But, according to the harm principle, the state can’t use its power to protect individuals from harms they choose to inflict on themselves. This would be an example of paternalism, and Mill was clear that paternalistic justifications for the restriction of liberty – i.e. justifications that restrict liberty for the individual’s own good – do not provide a ‘sufficient warrant’ for the restriction of liberty. To reiterate: the state can only rightfully interfere with people’s liberty to prevent harm to others; it can’t interfere to prevent harm individuals choose to inflict on themselves.
What, then, does the harm principle have to say about cosmetic surgery? Would it justify a more robust approach to the regulation of cosmetic surgery than at present? Would it recommend some forms of cosmetic surgery being criminalized?
On the face of it, the answer to these questions would seem to be “no”. As we heard at the second workshop, cosmetic surgery and non-invasive beauty procedures do carry serious risks. But these risks – like those faced by recreational drug users – seem to be ones that individuals willingly impose on themselves for (what they perceive to be) some greater good (like looking younger, thinner, more beautiful, and so on). The harm principle might support legislation that ensured that patients were given full disclosure of the risks involved – something that may not always be the case at present. But criminalization, and the more robust forms of regulation that were discussed at the workshop, would seem to be off the table.
Now, it might be objected, against the line of interpretation taken here, that when surgeons undertake a non-therapeutic and medically non-necessary procedure, which carries with it a significant risk of harm, then they are harming their patients, and that robust regulation and criminalization is justified on these grounds. But the obvious reply to this objection is that the patient has consented to their surgery. The harm inflicted upon them is not one which is inflicted ‘against their will’, as Mill puts it. Rather, it is itself an act of will, a matter of their free choice, which the surgeon then enacts (in this way, it seems akin to the harms sadomasochists might consensually inflict on each other for their own sexual gratification).
At first sight, then, a defence of robust regulation or criminalization of cosmetic surgery in terms of the harm principle seems remote. Yet matters may not be as simple as they first appear. One point is that even if cosmetic surgery doesn’t impose direct harm on patients, it might nonetheless impose indirect harms on others. Key to Mill’s position is a distinction between actions that concern others (call these other-regarding actions) and actions that concern oneself (call these self-regarding actions). One way of putting Mill’s principle is that the state can only rightfully exercise power over an individual’s other-regarding actions (or, more specifically, over the other-regarding actions which cause harm). As Mill himself puts it, ‘thee only part of the conduct of anyone, for which he is amenable to society, is that which concerns others. In the part which merely concerns himself, his independence is of right, absolute.’
Now, cosmetic surgery might initially like a paradigmatic example of a self-regarding action. But in reality, as we heard at the workshop, it’s not as simple as that. Cosmetic surgery can - and often does – go wrong, and this can cause distress, not only to the patient, but also to their family and friends. In addition, when things go wrong, patients may have to turn to the NHS for treatment, and this might impose significant financial costs on the State. More indirectly, but not, I think, less importantly, cosmetic surgery might also play a role in reinforcing beauty norms that prescribe a certain ideal for others to live up to. And as we also heard at the second workshop, there is strong evidence linking these beauty norms with high levels of appearance dissatisfaction and low levels of self-esteem. Of course, it might be said that none of these costs constitute harms in Mill’s sense of the term, but it is also clear that cosmetic surgery is not a matter ‘which merely concerns oneself’ either.
A second point centres on the notions of choice and consent. I said earlier that consent legitimizes what would otherwise be a deeply problematic aspect of cosmetic surgery: that cosmetic surgeons sometimes harm their patients. Because patients have chosen their surgery, and consented to it, we think that the harms they suffer are ones they inflict on themselves, not ones imposed on them by others.
But how far should we take patient’s choice and consent at face-value? At the second workshop it was reported that it is often the most vulnerable patients who opt for the most extreme procedures. Is this vulnerability making patients reach for procedures they would otherwise reject? Another theme of the workshop was that we are subjected, from a very early age, and from a variety of sources, to a barrage of images and messages about what beauty is and what it requires of us. Given that, however, we may ask whether the choice to have cosmetic surgery – an eye-lift to make me look younger, a tummy-tuck to make me look thinner, and so on – is really a free one, rather than one which is massively constrained by social norms. And here we should note that Mill more than anyone would be sympathetic to the thought that one’s freedom can be curtailed, not only by physical interference, but also by social norms that impose certain behaviours and lifestyles on people, and penalize those who fail to live up them.
Thus, the application of the harm principle is far from straightforward. But, by making us think harder about the risks of cosmetic surgery, not only on the patient, but also on society more generally, Mill’s text continues to channel the debate about regulation in a healthy way.
The full text of Mill’s On Liberty can be read online here: http://www.constitution.org/jsm/liberty.htm