Counting the Dragon's Teeth and Claws: the Definition of Hard Paternalism

• Publication year: 2010

Counting the Dragon's Teeth and Claws: The Definition of Hard Paternalism

Thaddeus Mason Pope

Introduction

Paternalism is the restriction of a subject's self-regarding conduct primarily for the good of that same subject. [3] The concept of "paternalism" is widely employed by writers of academic legal literature, judicial opinions, and legislative reports. [4] It is a basic organizing principle in the law. [5] Paternalism is, for example, the operative (even if often unrecognized) rationale limiting the assumption of risk doctrine in tort law. [6] Paternalism is at the normative center of increasingly pressing public health questions concerning the permissibility of restrictions on the consumption of tobacco products and sugary, fatty foods. [7]

Nevertheless, despite its pervasive use, the concept of paternalism lacks a clear and crisp definition. Some writers use the term paternalism to mean "soft paternalism." Other writers use the term paternalism to mean "hard paternalism." However, these two forms of paternalism must not be confused. Soft paternalism, restricting a subject's self-regarding conduct where the conduct is not substantially voluntary, is morally uncontroversial.[8] Hard paternalism, restricting a subject's self-regarding conduct where the conduct is substantially voluntary, on the other hand, is very morally controversial and presents interesting and difficult moral questions.[9]

Because considerable and meaningful differences exist between the two main types of paternalism "hard" (also known as "strong") paternalism and "soft" (also known as "weak") paternalism writers ought not to use the term paternalism by itself, without adjectival modifiers. Rather, they should always refer to the specific type of paternalism with which they are dealing. Otherwise, writers might readily endorse a policy option under the assumption that it involves soft paternalism when it really involves hard paternalism. On the other hand, writers might dismiss a policy option as unavailable under the assumption that it involves hard paternalism when it really involves soft paternalism. In other words, the failure to distinguish hard paternalism from soft paternalism may cause writers to employ the wrong set of justificatory criteria and, as a result, to incorrectly frame important questions concerning the protection of persons from themselves.[10]

I contend that the confusion between hard paternalism and soft paternalism results in large measure from the lack of a precise definition of hard paternalism. [11] Without a clear conceptual demarcation, the boundary between hard paternalism and soft paternalism remains blurred. This Article attempts to bring the boundary into focus.

In Part I, I explain that both soft paternalism and hard paternalism are liberty-limiting principles.[12] Each concept provides a basis for overcoming the liberal presumption against interference with liberty. In Part II, I briefly define soft paternalism as the limitation of a subject's liberty where the subject does not act substantially autonomously.[13] In other words, soft paternalism is the restriction of self-regarding conduct to which the subject does not consent. While soft paternalism is often difficult to implement, it is no longer of serious theoretical interest.[14] Both ethical rules and legal doctrines already employ a well-developed explanation of the circumstances under which nonconsensual conduct may be restricted.

On the other hand, an explanation of the circumstances under which consented conduct may be restricted requires attention. Such an explanation is outside this Article's scope, but in order to better frame such inquiries, I carefully define hard paternalism in Part III.[15] By defending a set of logically necessary and sufficient conditions, I define hard paternalism as, roughly, the limitation of a subject's liberty where the subject acts substantially autonomously. In other words, hard paternalism is the restriction of self-regarding conduct to which the subject consents. In Part IV, I present and respond to objections and counterexamples to my definition of hard paternalism.[16] Finally, I conclude that my definition will introduce needed clarity and precision into important and ongoing dialogues concerning the conditions under which an agent may justifiably restrict an individual's substantially autonomous self-regarding conduct.[17]

I. Liberty-Limiting Principles

As a matter of social, political, and moral fact, our culture places a high value on autonomy. [18] This has become a generally recognized feature of the Western-American classical liberal tradition, particularly as society has reinvigorated that tradition since the consumer revolution of the 1960s. [19] Given the fact that "self-determination is highly valued in the cultural climate of western societies," any interference with individual liberty is presumptively invalid and demands justification.[20] As John Stuart Mill explained, "[T]he onus of making out a case always lies on the defenders of legal prohibitions." [21] Joel Feinberg similarly explained, "[T]he burden of proof is on the shoulders of whoever advocates legal coercion." [22] In short, the proponent of liberty-limiting state action always bears the burden of proving its moral justifiability.[23]

The presumption of noninterference with individual liberty, while strong, is rebuttable. [24] It is, after all, only a presumption. As Tom Beauchamp and James Childress explained, respect for autonomy "has only prima facie standing and can be overridden by competing moral considerations." [25] This makes sense. Rejecting the legitimacy of all liberty-limiting principles a position that one writer names "radical consumer autonomy"[26] would be tantamount to a form of Max Stirner's unworkable radical individual anarchy. [27] An anarchic political system in which the state can never intervene is as untenable as a totalitarian one in which the state can always intervene. [28] Between the two extremes of anarchy and totalitarianism lies a wide range of potentially legitimate liberty limitation.

Almost no one disputes the vague proposition that liberty limitation is sometimes morally justifiable. Isaiah Berlin observed that "a frontier must be drawn between the area of private life and that of public authority. Where it is to be drawn is a matter of argument, indeed of haggling."[29] However, for what reasons and under what circumstances ought the state to restrict individual liberty?

The answer is that the state should limit liberty only when a justifiable reason for doing so exists.[30] Philosophers refer to these justified reasons as "liberty-limiting principles,"[31] "coercion-legitimizing principles,"[32] or "autonomy-limiting principles."[33] The term liberty-limiting principle seems to have more pervasively influenced the literature on the subject, and I will use it here. Liberty-limiting principles need not state either necessary or sufficient conditions for moral justifiability. [34] Rather, as Joel Feinberg stressed, "[E]ach liberty-limiting principle puts forth a kind of reason it claims always to be relevant always to have some weight in support of proposed legal coercion, even though in a given instance it might not weigh enough to be decisive." [35]

In short, liberty-limiting principles are merely "relevant reasons"; reasons that can have but do not necessarily have "decisive weight" when balanced, in particular contexts, against the presumptive case for liberty.[36] Hard paternalism and soft paternalism are two liberty-limiting principles.

II. The Definition of Soft Paternalism

A. The Core Notion of Soft Paternalism

The sort of paternalism that is justified on the basis that the subject lacks the requisite decision-making capacity to engage in the restricted conduct is described as either soft [37] or weak [38] paternalism. Soft paternalism legitimizes intervention with a subject's conduct where that subject's decision to engage in the restricted conduct is one of the following: (1) not factually informed, (2) not adequately understood, (3) coerced, or (4) otherwise not substantially voluntary. [39] In short, soft paternalism justifies interference with a subject's liberty to benefit that same subject only if indeed, precisely because her choices are not substantially voluntary.[40]

Moreover, soft paternalistic intervention is proper not only when the subject's conduct is known for certain to be not substantially voluntary but also when the subject's conduct is very probably or strongly suspected to be not substantially voluntary. Because voluntariness must be ascertained one way or the other, soft paternalism legitimizes temporary intervention necessary to determine whether a subject's conduct is, in fact, substantially voluntary.

For example, if you were about to eat an apple that only I knew was poisoned, then on soft paternalistic grounds, I could justifiably interfere with your liberty and prevent you from eating that apple. My interference would be justified because you, in fact, were unaware of this important feature of your action. In other words, I did not stop you from doing what you wanted to do (eat an apple). Rather, I stopped you from doing something that you did not want to do (eat a poisoned apple). [41] Alternatively, my interference might be justified because I had to determine, one way or the other, whether you were unaware of this important feature of your conduct.

The choices that individuals make do not always reflect their desires and preferences. "People do not always mean what they say; they do not always say what they want; and they do not always want what they say they want."[42] A lack of information, maturity, or voluntariness can thwart the realization of desires.[43] For these reasons, commentators have widely accepted soft paternalism as an appropriate basis for intervention. [44] Indeed, to disallow soft paternalism would be to espouse the widely...