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
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.