![]() It permits paternalism over the incompetent, such as young children, the retarded, and perhaps those whose ability to make decisions is compromised by ignorance, deception, duress, or clouded faculties. The harm principle creates a "zone of privacy" for consensual or "self-regarding" acts, within which individuals may do what they wish and the state has no business interfering, even with the benevolent motive of a paternalist.īut the harm principle does not bar all paternalism. Under the harm principle, victimless crimes must be decriminalized, and virtually all paternalism over competent adults ended. If a competently consenting person is not a victim, then these three types act are victimless. The harm principle demands that we tolerate all three types of act, but paternalists often wish to regulate them. Legal paternalism and the harm principle come into conflict over (1) competent self-harm and risk of self-harm, (2) harm to consenting others, and (3) harmless acts. The usual legal prohibitions of murder, rape, arson, and theft are not paternalistic, since these acts harm unconsenting others for the same reason, criminal legislation in these areas is consistent with the harm principle. More precisely, coercion can only be justified to prevent harm to unconsenting others, not to prevent harm to which the actors competently consent. ![]() By contrast, the harm principle, famously articulated by Mill, holds that limiting liberty can only be justified to prevent harm to other people, not to prevent self-harm. Paternalism protects people from themselves, as if their safety were more important than their liberty. Acts which are often prohibited by the criminal law, but which have been alleged by serious writers to be victimless or harmless, at least for consenting adults, include the following: riding a motorcycle without a helmet, gambling, homosexual sodomy, prostitution, polygamy, making and selling pornography, selling and using marijuana, practicing certain professions without a license (law, medicine, education, massage, hair-styling), purchasing blood or organs, suicide, assisting suicide, swimming at a beach without a lifeguard, refusing to participate in a mandatory insurance or pension plan, mistreating a cadaver, loaning money at usurious interest rates, paying a worker less than the minimum wage, selling a prescription drug without a prescription, aggressive pan-handling, nudity at public beaches, truancy, flag burning, duelling, ticket scalping, blackmail, blasphemy, and dwarf-tossing. ![]() Which acts should be criminalized and which acts are none of the state's business? How far does one have a right to harm oneself, to be different, or to be wrong? To what extent should people be free to do what they want if others are not harmed? What is harm? When is consent free and knowing? When do we think clearly and wisely enough, and when are we sufficiently free of duress and indoctrination, to be left to follow our own judgment, and when should we be restrained by others? Who should restrain whom, and when? These are the questions raised by paternalism.īefore we examine the issues more closely, consider the very wide range of paternalistic legislation. Whenever the state acts to protect people from themselves, it seeks their good but by doing so through criminal law, it does so coercively, often against their will. But it is perhaps nowhere as divisive as in criminal law. Paternalism is a temptation in every arena of life where people hold power over others: in childrearing, education, therapy, and medicine. Sometimes the role of paternalist is thrust upon the unwilling, as when we find ourselves the custodian and proxy for an unconscious or severely retarded relative. It can be based on relatively good knowledge, as in the case of paternalism over young children or incompetent adults. Sometimes this is based on presumptions about their own wisdom or the foolishness of other people, and can be dismissed as presumptuous. In this, paternalists suppose that they can make wiser decisions than the people for whom they act. Paternalists advance people's interests (such as life, health, or safety) at the expense of their liberty. It is controversial because its end is benevolent, and its means coercive. ("Parentalism" is a gender-neutral anagram of "paternalism".) In modern philosophy and jurisprudence, it is to act for the good of another person without that person's consent, as parents do for children. "Paternalism" comes from the Latin pater, meaning to act like a father, or to treat another person like a child. Gray (ed.), Philosophy of Law: An Encyclopedia, Garland Pub. This essay originally appeared in Christopher B.
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