Paternalism & Legal Moralism
This page covers the topics related to excerpts
from Feinberg's Social Philosophy and David Richard's argument
about decriminalization. Paternalism and Legal Moralism are linked in
that each involves questions about the extent of individual liberty.
Paternalism involves the state eroding individual liberty by behaving
like a parent and forcing the citizen to behave in her best interest
(seat belts, for example). Legal moralism involves laws prohibiting what
is offensive to the majority of a community, or actions seen as
destroying the fabric of a society (pornography is an often used
example, although for some people the basis of this argument is that it
causes harm to women).
Most of the arguments in favor of liberty go back
to John Stuart Mill's On
Liberty and utilitarianism in general: since the goal is to
maximize happiness (utility, satisfaction), and no one knows better than
I do what will make me happy, then the state should not infringe on my
freedom unless and until I harm another person. This idea is known as
the harm principle, which is also expressed in terms of the greatest
individual freedom consistent with the same level of freedom for
everyone (obviously easier said than done with many specific
"Paternalism" comes from the Latin pater, meaning to act like a father, or to treat another person like a child. ("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. It is controversial because its end is benevolent, and its means coercive. Paternalists advance people's interests (such as life, health, or safety) at the expense of their liberty. In this, paternalists suppose that they can make wiser decisions than the people for whom they act. Sometimes this is based on presumptions about their own wisdom or the foolishness of other people, and can be dismissed as presumptuous. But sometimes it is not. It can be based on relatively good knowledge, as in the case of paternalism over young children or incompetent adults. 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. Paternalism is a temptation in every arena of life where people hold power over others: in childrearing, education, therapy, and medicine. But it is perhaps nowhere as divisive as in criminal law. 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.
Suber's entry on Paternalism in Christopher B. Gray (ed.), Philosophy of Law: An
Sex, Drugs and Adults:
Living in “the land of the free” doesn’t mean there are no rules to
obey. ABC News addresses the question : If Nobody Gets Hurt, Why Is It Illegal?
" To protect individuals from violence and society from anarchy, there’s a necessary role for police and the law. But when people engage in behaviors that primarily harm only themselves, is it right, in a free society, for government to intervene?
"A Legal Moralist believes that a State should use its laws to preserve its society's moral qualities, and that this goal justifies restrictions on liberties of its citizens. A
simplistic reading here is that so long as a great majority of its population take a view that something is immoral, the State can justifiably enact a law in order to penalise it.
It does not matter whether this concept of morality held by its citizens is well founded or not."
from a discussion
of Sodomy Laws (which also includes the paternalism angle).
S & M - sexual practices involving sadism
('cruelty') and masochism (eroticized suffering) - are lightning rods
for discussions of paternalism and moralism. In one case, an English
Judge comented: "'The dangers of unrestrained permissiveness, which
can lead to debauchery, paedophilia, and torture of others, has been highlighted at the World Conference in Stockholm. The protection of private life means the
protection of a person's intimacy and dignity, not the protection of his baseness or the promotion of criminal immoralism." The prosecutions and convictions "were
necessary in a democratic society for the protection of health." Further, he went on to argue that this ruling should lead to an expansion of Paragraph 43 of the
European Charter such that other [SM] sexual acts, not only those currently criminalised by the
"Spanner" law (Judge Rant in Brown et al vs. Regina), could be
considered criminally immoral, and therefore be justifiably regulated by national government. The paragraph, he argues, should be expanded to allow national
governments, in the interests of public health, "to regulate and punish practices of sexual abuse that are demeaning, even if they do not involve the infliction of physical
harm." (For the purposes of this letter, I take the foregoing to be an accurate reporting.)"
Read the Reply
to the Judge
also: Whoa! Canada! Legal Marijuana. Gay Marriage. Peace. What the Heck's Going On Up North, Eh?
(Washington Post, 1 July 2003, p C 01). See also What Gay Couples Lack -- Besides Marriage:
The Crucial Rights Under Tort Law That Only Spouses Can Assert
One could stroll down Alabama's southern streets selling semiautomatic rifles and dildos, and be arrested for the dildos.
There's a more detailed news
article from law.com and a thoughtful analysis
of the right to sexual privacy in a Findlaw.com column.
The Virginia Supreme Court Strikes Down the State's Fornication Law,
Indicating that Other States' Antiquated Laws Will Fall if Challenged
(Findlaw.com column). Virginia fornication law invalidated based on
Supreme Court ruling in Lawrence v Texas, which struck down same
sex sodomy law: First, Stevens argued, morality - even a longstanding view that a practice is immoral -- is not a sufficient justification to uphold a law prohibiting particular conduct.
Second, he argued, individual decisions by married and unmarried persons about "intimacies of their physical relationship, even when not intended to produce offspring" are a form of "liberty" under the Due Process Clause.
"Illicit Sexual Activity in Public Places"
(68 pp./.pdf) describes the problem of illicit public sexual activity and the factors that contribute to it. It also poses a number of questions to help understand the problem, proposes numerous responses to the problem, and identifies ways to measure the effectiveness of these responses.
(Community Oriented Policing series from National Institute of Justice)
Microsoft Corp. said Friday that small companies and their customers would suffer most if it is forced to remove its digital media software from Windows, while the European Union accused it of being "paternalistic" in trying to decide what's best for everyone.
(EU Accuses Microsoft of Paternal View,
Washington Post, 1 Oct 2004)
By now, nearly everyone has heard of Armin
Meiwes. Meiwes, a German citizen, has freely admitted to dismembering another German man and eating his flesh. Indeed, Meiwes carefully preserved the killing on videotape and still had pieces of the body in his freezer when he was arrested. During much of the process of dismemberment, the victim reportedly remained conscious.
The obstacle to a murder charge is the fact that the evidence incontrovertibly shows that Meiwes's victim wanted to be eaten. Indeed, he had agreed to the arrangement over the Internet, answering an ad placed by Meiwes that specifically sought a person who wanted to be slaughtered and cannibalized.
In the U.S., the victim's consent is no defense to murder, and it would be easy to prosecute an American counterpart to
Meiwes. But in Germany, the victim's consent renders the crime a "killing on request" -- that is, an instance of illegal euthanasia. Unfortunately, this offense is punishable by a very modest sentence of from six months to five years of incarceration.
[Is it Always Torture to Dismember and Eat a Conscious Human Being?
Another current issue involving paternalism is
over allowing people the ability to invest their retirement money. The
Washington Post put it in terms of fear and greed, but one of the
underlying philosophical issues is paternalism:
"Greed argues that workers have a right to concentrate their investments in their employers' stock because that is what has made many workers and retirees rich in recent years. Enron notwithstanding, the government shouldn't deprive them of that chance.
"Fear argues that government has a duty to save workers from themselves -- that making a large bet on one's own employer is too risky. Companies like Microsoft and Wal-Mart notwithstanding, retirement accounts are for saving, not for riding one stock to become a millionaire."