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Legal Paternalism

  • Joel Feinberg (a1)
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1

The Phi Beta Kappa lecture at Franklin and Marshall College, 1970; also presented to the Pacific Division of the American Philosophical Association, April, 1970, to the Summer Workshop at the Catholic University of America, June, 1970, and to “Philosopher's Holiday” at Vassar College, November, 1970.

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2 The discussion that follows has two important unstated and undefended presuppositions. The first is that in some societies, at least, and at some times, a line can be drawn (as Mill claimed it could in Victorian England) between other-regarding behaviour and behaviour that is primarily and directly self-regarding and only indirectly and remotely, therefore trivially, other-regarding. If this assumption is false, there is no interesting problem concerning legal paternalism since all “paternalistic” restrictions, in that case, could be defended as necessary to prated persons other than those restricted, and hence would not be (wholly) paternalistic. The second presupposition is that the spontaneous repugnance toward paternalism (which I assume the reader shares with me) is well-grounded and supportable.

3 See Williams, Glanville (ed.), Salmond on Jurisprudence, Eleventh Edition (London: Sweet & Maxwell, 1957), p. 531.

4 See his excellent article, Paternalism” in Moraliry and the Law, ed. by Wasserstrom, R. A. (Belmont, Calif: Wadsworth Publishing Co., 1971).

5 Mill's rhetoric often supports this second interpretation of his argument. He is especially fond of such political metaphors as independence, legitimate rule, dominion, and sovereignty. The state must respect the status of the individual as an independent entity whose “sovereignty over himself” (in Mill's phrase), like Britain's over its territory, is absolute. In self-regarding affairs, a person's individuality ought to “reign uncontrolled from the outside” (another phrase of Mill's). Interference in those affairs, whether successful or self-defeating, is a violation of legitimate boundaries, like trespass in law, or aggression between states. Even self-mutilation and suicide are permissible if the individual truly chooses them, and other interests are not directly affected. The individual person has an absolute right to choose for himself, to be wrong. to go to hell on his own, and it is nobody else's proper business or office to interfere. The individual owns (not merely possesses) his life; he has title to it. He alone is arbiter of his own life and death. See how legalistic and un-utilitarian these terms are! The great wonder is that Mill could claim to have foregone any benefit in argument from the notion of an abstract right. Mill's intentions aside, however, I can not conceal my own preference for this second interpretation of his argument.

6 The distinctions in this paragraph are borrowed from: Terry, Henry T.Negligence,Harvard Law Review, Vol. 29 (1915).

7 Mill, J. S.On Liberty (New York: Liberal Arts Press, 1956), p. 117.

8 Loc. cit.

9 Perfectly rational men can have “unreasonable desires'’ as judged by other perfectly rational men, just as perfectly rational men (e.g. great philosophers) can hold “unreasonable beliefs” or doctrines as judged by other perfectly rational men. Particular unreasonableness, then, can hardly be strong evidence of general irrationality.

10 Mill, . op. cit., p. 125.

11 That is, the principle that prevention of harm to others is the sole ground for legal coercion, and that what is freely consented to is not to count as harm. These are Mill's primary normative principles in On Liberty.

12 Loc. cit.

13 Atiyah, P. S.An Introduction to the Law of Contracts (Oxford: Clarendon Press, 1961), p. 176.

14 Ibid., pp. 176-77.

15 Ibid., p.177.

1 The Phi Beta Kappa lecture at Franklin and Marshall College, 1970; also presented to the Pacific Division of the American Philosophical Association, April, 1970, to the Summer Workshop at the Catholic University of America, June, 1970, and to “Philosopher's Holiday” at Vassar College, November, 1970.

Legal Paternalism

  • Joel Feinberg (a1)

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