Updated: Jul 1, 2021
Legal paternalism is commonly understood as an infringement on the personal freedom and autonomy of individuals, with a protective or positive intent. It is to do with the idea that authorities and the law can send a message about what individuals should not do to others, as well as what individuals should not do to themselves. Although there are many different types of paternalism in theory, this article will be discussing the brief debate on legal paternalism, private coercive paternalism, consensual paternalism, libertarian paternalism, and how paternalism links with social policy.
It is also important to note that any individuals’ names which have been used in this article are solely for the purpose of education, and does not allude to any real-life individuals.
To better understand legal paternalism, it is best to use an every-day example of where a paternalistic law is applied. In many ways, laws on wearing seatbelts and helmets are paternalistic laws — enforcing certain rules and regulations on individuals with the protective and positive intent of reducing physical damage in the case of a road accident. The reason why individuals are not against this paternalistic law — unlike many paternalistic laws — is because individuals only benefit from not dying in the case of an accident, i.e. there is nothing which individuals will lose from wearing seatbelts and helmets during their transportation.
This is different from paternalistic laws which prohibit smoking in certain areas or jurisdictions, as individuals do have something to lose in this case. Despite the positive intent which prevents lung damage and cancer, individuals must experience a psychological or economic loss due to this restriction on smoking in certain areas — smoking and other addictions essentially carry a potential value to many individuals. Psychologically, the pleasure received from smoking will be halted due to this law, and individuals will also suffer economically as those in the tobacco industry will see falling sales and excess supply which can severely harm individual economic freedoms, depending on the extent and strength of enforcement of the law itself.
Therefore, some individuals want laws which still allow them to make their own autonomous decisions, whilst some want to ban everything which they know is harmful to humans in general. The debate on the effectiveness of legal paternalism is surrounded by the question of values and goals, and the cost-benefit analysis of these paternalistic laws on individuals, almost on a case-by-case basis.
Private Coercive Paternalism
Private coercive paternalism is a case when a party knows about another’s addiction or personal issue, and takes action without their consent. If Jack knew that Jill had an alcohol issue, and Jack therefore hid Jill’s alcohol stash before a house party that day, then Jack would have committed an act without Jill’s permission. Despite Jack hiding Jill’s alcohol stash with the positive and protective intent to prevent Jill from spiralling further down her alcohol addiction, the ‘coercive’ element is represented through the fact that Jill was not aware of Jack’s knowledge of her alcohol addiction. In this case, and many real-life cases, the issue does not only present itself in the matter of legal theory, but also the moral implications of committing these arguably paternalistic actions on friends and family. On one hand, it can be argued that Jack, as a good friend of Jill, has a moral and human responsibility to do everything he can to prevent Jill’s worsening addiction. However, it can also be argued that such health issues must be reserved for health professionals to resolve, and that Jill has the ultimate responsibility to find aid from doctors or nurses if she feels as though her alcohol issue is uncontrollable. Other questions which may arise from this case, are whether Jack should have sacrificed Jill’s source of pleasure (alcohol) to prioritise her health? What right does Jack have to commit such an action? What authority does Jack have to do this? On a larger scale, legal paternalism justifies state coercion to protect individuals from harm, caused by either others or themselves, and to give incentives for individuals to commit ‘good’ acts. This gives rise to the question: what power, right, and authority does the state hold to enforce such laws on individuals? After all, despite being in a position of power, are we not all the same in the face of society? This article, especially in these instances, may sound anarchist at times, but it is with these arguably extreme questions that society finds ways to think deeper into the laws which govern us, and begin questioning the appropriateness and effectiveness of state-enforced laws on individuals on a daily basis.
Another type of paternalism is called consensual paternalism. This is the most common case of paternalism which individuals face on a day-to-day basis. Consensual paternalism is seen when an individual implies to or tells another about their problems, and implies that they can take certain actions to prevent said individual from worsening their problem. For instance, Jill — in a prior conversation — could have told Jack that she has recently developed an addiction to alcohol and that it is worsening at an alarming rate. Jill may have also told Jack that Jack is allowed to do anything, as a good friend of Jill’s, to prevent her addiction issue from worsening. In this case, as Jack has Jill’s consent in acting for her protection and benefits, the coercive element essentially disappears from the equation. Now, if Jack hides Jill’s alcohol stash, Jack would have technically acted with Jill’s consent, hence it is called a ‘consensual paternalistic act’.
Libertarian paternalism essentially argues that the coercive element in many individual paternalistic actions are not acceptable, whether it is due to moral, legal, or political reasons. Libertarian paternalism argues completely against the banning and forbidding of actions, but are accepting of ‘softer’ versions of these restrictions. For example, a libertarian paternalist would not accept the total banning of smoking in the entire province, but would perhaps accept a system where smokers will have to pay fines if they are caught smoking in certain prohibited areas. This is also seen in policies such as sugar taxes, which enforce fines onto individuals who drink certain tiers of alcoholic beverages containing different levels of sugar (usually, the higher the sugar percentage, the higher the fine). These laws can still be seen as paternalistic as the state is preventing the damages of alcohol consumption with a positive and protective intent. However, the reason why some individuals are against these laws is yet again due to the cost-benefit element of paternalistic laws. In this case, the state would be restricting a sense of individual freedom and pleasure by making certain alcohol drinks less affordable to a demographic which would not be able to purchase the goods at such a high price. Therefore, the question of whether or not the state should enforce these paternalistic laws, and whether or not the state has the right and authority to enforce these laws in the first place, are still debates to be had by individual citizens and law-makers in many jurisdictions around the world.
In conclusion, the discussion on legal paternalism can be used to reveal an element of human nature. Through the examples of paternalistic laws on smoking and sugar taxes and more, it is clear that the problem with humanity is that individuals focus too much on the short-term benefits and drawbacks of their actions. We want things then and there, and have no patience to wait for things that we desire. Perhaps this is the reason why paternalistic laws should exist — to restrict human greed and infinite desire, coupled with the impatient trait of human nature?
Works Cited and Further Reading
Dworkin, Gerald. “Paternalism.” Stanford Encyclopedia of Philosophy, Stanford University, 9 Sept. 2020, https://plato.stanford.edu/entries/paternalism/
Feinberg, Joel. “Legal Paternalism.” Canadian Journal of Philosophy, vol. 1, no. 1, 1971, pp. 105–124. JSTOR, www.jstor.org/stable/40230341. Accessed 28 June 2021.
Glod, Bill, and The IHS. “Legal Paternalism: What It Looks Like When Policymakers Push You to Do the ‘Right Thing.’” Institute for Humane Studies, 23 Feb. 2017, https://www.theihs.org/blog/legal-paternalism-what-it-looks-like-when-policymakers-push-you-to-do-the-right-thing/
“Paternalism Applied to Social Policy.” Encyclopædia Britannica, Encyclopædia Britannica, Inc., www.britannica.com/topic/paternalism/Paternalism-applied-to-social-policy#ref1193724
“Paternalism.” Encyclopædia Britannica, Encyclopædia Britannica, Inc., www.britannica.com/topic/paternalism