Abstract
I begin with an ordinary, everyday example from which I hope to generalize about the justifiability of paternalism and, to a lesser extent, about the difficulties of justifying paternalism in the criminal law. When permitted to eat anything he chooses, 4-year-old Billy skips his vegetables altogether and eats only his ice cream dessert. His father has tried to explain the reasons to eat a balanced diet, but Billy is unmoved, and has not changed his behavior. Suppose his father comes to you for advice about what to do at their next dinner. I stipulate that the father’s only reason for seeking advice is to improve Billy’s health and welfare by ensuring that he eats a more nutritious meal than if left to his own devices. It seems reasonable for you to recommend that Billy not be permitted to eat his ice cream unless and until he finishes his vegetables. Suppose his father decides to follow your advice. This example not only describes a situation in which Billy is treated paternalistically but also represents a relatively clear case in which the paternalistic treatment is justified. In any event, I make these two assumptions about this case.
This article first appeared in Franklin G. Miller and Alan Wertheimer (eds.), The Ethics of Consent: Theory and Practice, Oxford University Press 2010), 107–130, and is reprinted by kind permission of Oxford University Press.
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Notes
- 1.
I do not contend that this second assertion is beyond serious dispute. See infra p. 109. Fortunately, nothing of importance turns on any particular example; I need only to assume that some case of justified paternalism can be described, and that its justification depends on the criteria I provide.
- 2.
Literally, rules or laws are not the kinds of thing that can be paternalistic. To say that a rule or law is paternalistic is best interpreted to mean that it is adopted or enacted largely from a paternalistic motive. Generally, see Douglas N. Husak (2004).
- 3.
See Joel Feinberg (1985).
- 4.
See Douglas Husak (2008).
- 5.
Perhaps this conclusion can be applied to all attempts to justify paternalism by reference to consent—even when consent is noncontemporaneous. See Thaddeus Mason Pope (2005).
- 6.
It is not clear how a parent can threaten to treat someone paternalistically when paternalism is justified. Typically, threats are distinguished from offers because they make their recipients worse off. If Billy is indeed better off when treated paternalistically, as I have stipulated, his father’s proposal is difficult to categorize as a threat.
- 7.
Some philosophers contend that not all cases of paternalism involve interference. Presumably, a doctor may treat an unconscious patient paternalistically, although he could hardly interfere in a choice the patient is incapable of making. See Bernard Gert and George Culver (1976).
- 8.
See Cass R. Sunstein and Richard H. Thaler (2003).
- 9.
See J.D. Trout (2005).
- 10.
Taxes designed to discourage people from engaging in activities that create risks of harm, such as using tobacco products, probably should be conceptualized similarly. Unless rates of taxation become prohibitive, they should be thought to influence rather than to interfere with choice. Generally, see the discussion of the “robustness principle” in Jim Leitzel (2008).
- 11.
See Colin Camerer et al. (2003). Complications arise if the price for the spontaneous and irrevocable purchase is lower than that for the revocable purchase.
- 12.
For a nice discussion, see Peter Westen (2004).
- 13.
Formulations of the consent defense in criminal law accord with this position. The Model Penal Code provides that consent is “ineffective” if “it is given by a person whose improvident consent is sought to be prevented by the law defining the offense.” American Law Institute, Model Penal Code §2.11(3)(c) (1962).
- 14.
Gerald Dworkin (1972).
- 15.
Douglas Husak (1980).
- 16.
See Tziporah Kassachkoff (1994).
- 17.
For serious consideration of the possibility that consent can be retrospective, see Westen, Logic, 254–61.
- 18.
Elsewhere, I have suggested that paternalistic interferences are reasonable when they promote the conditions of personal autonomy. See Husak, “Legal Paternalism.”
- 19.
An enormous literature has grown around this topic. Generally, see Michael Bishop and J.D. Trout (2005).
- 20.
See Thomas C. Schelling (1984). Schelling lists several self-regulatory strategies, including relinquishing authority to someone else, disabling oneself, removing resources, submitting to surveillance techniques, incarcerating oneself, arranging rewards and penalties, rescheduling one’s life, avoiding precursors, arranging delays, using teams, and setting bright line rules.
- 21.
Jon Elster (1983).
- 22.
George Ainslie (1992).
- 23.
George Lowenstein and Ted O’Donoghue (2006).
- 24.
Information and forms about this program are available at http://www.state.nj.us/casinos/forms/excludeform.pdf.
- 25.
At least in this case. Admittedly, a factor that is irrelevant in one pair of cases need not be irrelevant in all such pairs. Generally, see the discussion of the “Principle of Contextual Interaction” in F.M. Kamm (2007).
- 26.
According to Joel Feinberg, we should rely on the subject’s most “voluntary” decision in cases of conflict. See Self, 83.
- 27.
The time at which the person is more competent is not the only basis for privileging Eric’s judgment, even if it is the most important. Suppose that Alan, who consented to cosmetic surgery in a sober moment, becomes terrified when the operation is about to be performed. Clearly, he may withdraw his consent at this later time, even though his judgment is likely to be impaired by his fear.
- 28.
Feinberg, Self, 83.
- 29.
Questions of advance directives that allegedly bind demented patients raise problems of personal identity that are not clearly replicated in my example of self-exclusion programs. See, for example, Allen Buchanan (1988).
- 30.
See Constance Holden (2001).
- 31.
The debate about whether addictive behaviors can be moderated is waged most fiercely in the context of alcoholism. See Frederick Rotgers et al. (2002).
- 32.
Some commentators appear to assume that self-excluded gamblers must be addicts. See the otherwise informative contribution by Justin E. Bauer (2006).
- 33.
Perhaps my conclusions can be avoided by supposing that the promise is made to (or the contract is made with) a party other than the casino—say, to the state agency that establishes the self-exclusion program. The same problem would arise, however, if Smith asked an agent of the state to release him from his promise (or contract).
- 34.
Arguably, this technical problem could be overcome if Smith paid consideration—say, a sum of $10—in exchange for the casino manager’s promise to exclude him.
- 35.
See Kevin Davis (2006).
- 36.
Westen, Logic, 253.
- 37.
According to one study, compulsive gamblers provide between 30 and 52 % of all casino revenues. See http://www.casinofreephila.org/research/gambling-revenues-compulsive-gamblers.
- 38.
For a negative answer, see Merrill v. Trump Indiana, Inc., 320F.3d 729 (7th Cir. 2003).
- 39.
For an affirmative answer, see id.
- 40.
According to one study, 30 % of the participants completely stopped gambling once enrolled in this kind of program. See Robert Ladouceur et al. (2000).
- 41.
This position resembles the controversial view Joseph Raz has defended in the context of analyzing political authority. According to Raz, “consent is a source of obligation only when some considerations, themselves independent of consent, vindicate its being such a source.” Joseph Raz (2006).
- 42.
For further thoughts, see Husak, Overcriminalization.
References
Ainslie, George. 1992. Picoeconomics: The strategic interaction of successive motivational states within the person. Cambridge: Cambridge University Press.
Bauer, Justin E. 2006. Self-exclusion and the compulsive gambler: The house shouldn’t always win. Northern Illinois Law Review 27: 63.
Buchanan, Allen. 1988. Advance directives and the personal identity problem. Philosophy and Public Affairs 17: 277.
Camerer, Colin, et al. 2003. Regulation for conservatives: Behavioral economics and the case for ‘asymmetric paternalism’. University of Pennsylvania Law Review 151: 1211.
Davis, Kevin. 2006. The demand for immutable contracts: Another look at the law and economics of contract modifications. New York University Law Review 81: 487.
Dworkin, Gerald. 1972. Paternalism. The Monist 56: 64.
Elster, Jon. 1983. Sour grapes: Studies in the subversion of rationality. Cambridge: Cambridge University Press.
Feinberg, Joel. 1985. Harm to self. New York: Oxford University Press.
Gert, Bernard, and George Culver. 1976. Paternalistic behaviors. Philosophy and Public Affairs 6: 46.
Holden, Constance. 2001. ‘Behavioral’ addictions: Do they exist? Science 294: 980.
Husak, Douglas. 1980. Paternalism and autonomy. Philosophy and Public Affairs 10: 27.
Husak, Douglas N. 2004. Legal paternalism. In Oxford handbook of practical ethics, ed. Hugh LaFollette, 387. New York: Oxford University Press.
Husak, Douglas. 2008. Overcriminalization. New York: Oxford University Press.
Kamm, F.M. 2007. Intricate ethics, 17. New York: Oxford University Press.
Kassachkoff, Tziporah. 1994. Paternalism: Does gratitude make it okay? Social Theory and Practice 20: 1.
Ladouceur, Robert, et al. 2000. Brief communications analysis of a Casino’s self-exclusion program. Journal of Gambling Studies 16: 453.
Leitzel, Jim. 2008. Regulating vice: Misguided prohibitions and realistic controls, esp. 72–esp. 92. Cambridge: Cambridge University Press.
Lowenstein, George, and Ted O’Donoghue. 2006. ‘We can do this the easy way or the hard way’: Negative emotions, self-regulation, and the law. University of Chicago Law Review 73: 183.
Michael, Bishop, and J.D. Trout. 2005. Epistemology and the psychology of human judgment. New York: Oxford University Press.
Raz, Joseph. 2006. The problem of authority: Revisiting the service conception. Minnesota Law Review 90: 1003–1038.
Rotgers, Frederick, Mark F. Kern, and Rudy Hoeltzel. 2002. Responsible drinking: A moderation management approach for problem drinkers. Oakland: New Harbinger Publications, Inc.
Schelling, Thomas C. 1984. self-command in practice, in policy, and in a theory of rational choice. American Economics Review 74: 1.
Sunstein, Cass R., and Richard H. Thaler. 2003. Libertarian paternalism is not an oxymoron. University of Chicago Law Review 70: 1159.
Thaddeus Mason, Pope. 2005. Monstrous impersonation: A critique of consent-based justifications for hard paternalism. University of Missouri-Kansas City Law Review 73: 861.
Trout, J.D. 2005. Paternalism and cognitive bias. Law and Philosophy 24: 393.
Westen, Peter. 2004. The logic of consent. Burlington: Ashgate Publishing Co.
Acknowledgement
I would like to thank participants at the Criminal Theory Workshop at the International Congress of Political and Legal Philosophy at Krakow, Poland. I also received valuable help from members of the Department of Philosophy at Virginia Commonwealth University as well as from members of an NIH seminar at Georgetown University. Special thanks to Youngjae Lee, Frank Miller, Alec Walen, Peter Westen, and Alan Wertheimer, each of whom provided detailed written assistance on earlier drafts.
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Husak, D. (2015). Paternalism and Consent. In: Schramme, T. (eds) New Perspectives on Paternalism and Health Care. Library of Ethics and Applied Philosophy, vol 35. Springer, Cham. https://doi.org/10.1007/978-3-319-17960-5_5
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