A Definition and Defense of Hard Paternalism

Thaddeus Mason Pope. University of Memphis – Cecil C. Humphreys School of Law; Widener University – School of Law. A Definition and Defense of Hard Paternalism: A Conceptual and Normative Analysis of the Restriction of Substantially Autonomous Self-Regarding Conduct, Chapter Five: A New Normative Defense of Hard Paternalism. Abstract (SSRN)

This is the key and final chapter of my doctoral dissertation. Chapters two, three, and four of this dissertation have already been published as free-standing law review articles. This chapter will also soon be published, though in two or three separate articles that link this normative jurisprudential theory to ongoing debates in public health.

In this chapter, I offer my own theory of justified hard paternalism. My theory is, as I will explain, a beneficence-based, consequentialist argument. First, because I am not the first to make such an argument, I quickly review other beneficence-based, consequentialist arguments for the justifiability of hard paternalism. I do not systematically evaluate this literature as I did with the consent-based, deontological arguments in article for the UMKC Law Review. Rather, my objective, here, is only to provide some background.

Second, in the central section of this chapter, I defend seven conditions as logically individually necessary and jointly sufficient to justify hard paternalism. I first separately argue that each of the seven conditions is necessary for justified hard paternalism. I then argue that the seven conditions are jointly sufficient for justified hard paternalism.

Specifically, I argue that hard paternalistic liberty limitation (HPLL) is justified if and only if: (1) there is strong evidence that each of the following six conditions is satisfied, (2) the objective of the HPLL is to protect the subject from significant harm, (3) the subject has either a low autonomy interest or an irrational (though substantially autonomous) high autonomy interest in the restricted conduct, (4) the HPLL is imposed only if no morally preferable, less autonomy restrictive alternatives (e.g. soft paternalism) for achieving the objective are available, (5) the HPLL has a high probability of success/effectiveness, (6) the harm from which the HPLL protects the subject outweighs any harm caused by the HPLL itself, and (7) the HPLL is least restrictive as necessary.

Third, in the final section of this chapter, I deal with the most typical counterarguments to justified hard paternalism. While I will motivate and answer a number of objections and counterexamples in the course of defending – in the middle section of this chapter – the individual necessity and joint sufficiency of my seven conditions; in the final section of this chapter, I separately state and respond to the four strongest standard objections to hard paternalism. These objections are: (1) the slippery slope argument – in both its logical and empirical forms, (2) the argument from paternalistic distance – also known as the best judge argument, (3) the argument from the developmental value of choice, and (4) the argument from the oppression of individuality.

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