IS ANY LEGAL PATERNALISM JUSTIFIED?

 

       What is legal paternalism?  A law is paternalistic if it is enacted to promote the good of the target audience by overruling their own judgment about what is good for them. 

 

       Explicit Voluntary Endorsement Standard For Justified Paternalism (Strict Libertarian Standard):  Paternalism is never justified, unless the target of the paternalistic interference has previously given her explicit, voluntary consent to it. 

 

 

 

 

 

 

 

 

 

 

 

 

Feinberg and the Volenti Maxim

 

What is the Volenti Maxim?  What is its relation to legal paternalism?

 

       Feinberg's Voluntariness Standard for Weak Paternalism:  Paternalistic intervention is weak (and therefore justifiable) only if it involves interference in a subject’s substantially non-voluntary choices or if it is necessary to determine whether or not they are substantially non-voluntary (9). 

 

       What is distinctive about Feinberg's account is his distinction between voluntary and non-voluntary choices is not dependent on their causal antecedents, but depends only on whether they "represent the agent faithfully in some important way: they express his or her settled values and preferences."(7)  (Compare Scanlon's weak sense of autonomous or Talbott's notion of negative autonomy.)

 

 

 

       This exception justifies intervention in cases of ignorance or other cases where the acts do not express the agent's settled values and preferences, or where temporary intervention is necessary to make a determination of these factors.  [Note that Feinberg later adds another exception:  Where the legal machinery for testing voluntariness would be so cumbersome and expensive as to be impractical, compare the expected costs of permitting substantially nonvoluntary choices with the expected costs of prohibiting substantially voluntary choices, and choose the least costly policy.

 

 

 

 

 

 

 

 

 

 

 

 

Dworkin I's Hypothetical Consent Test for Soft Paternalism

 

Dworkin begins by distinguishing legal paternalism from legal solutions to CAPs.  Does he draw the line in the right place?

 

Dworkin's test:  If rational individuals would consent to the limitations as a kind of social insurance policy, then the paternalism is soft.  (Note that the focus is on the subject's attitude toward the interference itself, not the subject's attitude toward the choice to be interfered with.)

 

 

 

 

 

 

 

 

 

 

 

 

Hypothetical Autonomous Endorsement Standard for Weak Paternalism:  Paternalistic interference is weak whenever the target of the interference would autonomously endorse the relevant kind of interference if she were to consider it in such circumstances and in such a manner to enable her to make an autonomous judgment about it. 

 

       Applications of the consent test:  "We would be most likely to consent to paternalism in those instances in which it preserves and enhances for individuals their ability to rationally consider and carry out their own decisions."(239)

Is this equivalent to:  "to preserve a wider range of freedom for the individual in question"(239) or to "the need to preserve the liberty of the person to make future choices"(239)?

 

       None of these tests works to pick out just the cases that Dworkin I thinks are cases of justified paternalism.  He suggests another test:  "future-oriented consent"(236).

 

 

       Dworkin II's Second Thoughts:  The hypothetical consent test does not justify refusing to enforce slavery contracts for the autonomous slave.  Dworkin II seems to think that refusing to enforce slavery contracts in such cases would involve hard paternalism.  (Here he seems to disagree with Dworkin I.) 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Is there a way to understand weak/soft paternalism that can explain why refusal to endorse slavery contracts, even when entered into by autonomous slaves, is only weak/soft paternalism?

 

       Schelling's idea:  Regarding people as if they are a collectivity of selves rather than a single self.  How should we resolve intra-personal conflicts?

 

Should vows be enforceable?

 

Muliple selves:  "'Rational decision' has to be replaced with something like collective choice"(178).  "The issue is distributive, not one of identification"(195). 

Should the decision be based on majority vote?

 

The example of the Day self and the Night self.

 

 

 

 

 

Talbott's Solution to Schelling's Puzzle About Intra-Personal Conflicts

 

Talbott's Most Reliable Judgment Standard for Weak Paternalism (a way of resolving the conflict in some cases):  A's paternalistic intervention in the action of a target T is weak paternalism if and only if A is epistemically justified in believing that T's most reliable autonomous judgment or judgments endorse (or would endorse) such intervention.

 

Example of Lee the soccer player

 

The example of Dax Cowart

 

Example of Allen the drug user

 

 

 

 

 

 

 

 

Lee's Earlier Self:                        

(1a) judges that a prohibition on suicide would be bad for him. 

(2a) judges that his earlier self’s judgment (1a) is more reliable than his later self’s judgment (1b).

(3a) judges that his earlier self’s judgment (2a) is more reliable than his later self’s judgment (2b).

 . . .

 

Lee’s Later Self:

(1b) judges that a prohibition on suicide would be good for him.                   

(2b) judges that his later self’s judgment (1b) is more reliable than his earlier self’s judgment (1a).

(3b) judges that his later self’s judgment (2b) is more reliable than his earlier self’s judgment (2a).

 . . .

 

 

 

 

 

                            

                            PI              -E -E -E||E E E . . .

 

 . . . -E -E -E

                            -PI             -E -E -E||E E E . . .

                           

       Figure 1.  Allen's Decision Whether or Not to Use the Drug RD. 

 

 

       Allen's future endorsements of intervention are bilateral and unequivocal.  They are bilateral, because he would come to endorse intervention both if there were paternalistic intervention and if there were not.  They are unequivocal, because there is a point at which he comes to endorse paternalistic intervention and he never changes his mind later.

 

 

 

 

 

 

 

                            PI              -E -E -E||E E E . . .

 

 . . . -E -E -E

                            -PI            

                          

Fig. 4.  Unilateral Endorsement, Because the -PI Branch is Truncated:  Example of Lee the Soccer Player.

 

In this case, paternalism is weak even though there is not bilateral endorsement.

 

 

 

 

 

 

 

 

 

 

 

 

 

                                PI         -E -E -E||E E E . . .

 

 . . . -E -E -E

                            -PI            -E -E -E -E -E -E

 

 

Fig. 3.  An example in which the future gratitude condition is satisfied but the paternalistic intervention is not weak, because of the lack of bilateral future endorsement.

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

       Democratic paternalism and the majority spill-over effect

 

       According to Talbott, there are two problems with slavery contracts.  What are they?

 

       According to Talbott, why is suicide different from slavery?

 

       When do delegations of authority qualify as weak paternalism?

 

 

 

 

 

 

 

 

 

 

 

 

 

 

The Philosopher's Brief:  R. Dworkin, Nagel, Nozick, Rawls, Scanlon, and Thomson

 

 

What is the sphere of negative liberty protected from paternalistic intervention?

 

What is the standard of justified (weak) paternalism?

 

First statement:  Whether their act reflects "their enduring convictions"(41), that it is "an informed, competent, stable, and uncoerced decision"(47).  Whose view does this statement remind you of?

 

 

 

 

 

 

 

 

 

 

 

 

Second statement:  "A state has the constitutional power to override that right [against paternalistic intervention] in order to protect citizens from mistaken but irrevocable acts of self-destruction.  States may be allowed to prevent assisted sucicide by people who—it is plausible to think—would later be grateful if they were prevented from dying"(41).  See also p. 47.

 

Whose view does this statement remind you of?

 

 

 

 

 

 

 

 

 

 

 

 

"Libertarian Paternalism"

 

 

Examples of weak paternalism:

 

Self-chosen gambling prohibitions

 

Default options for retirement.  (Does Social Security qualify?)

 

Framing information:  mortality vs. survival statistics.