Define Legal Paternalism
Paternalism is not controversial when applied to children or the mentally ill under normal circumstances. But paternalism is otherwise seen by many as a threat to individual autonomy, freedom, rights and privacy. When it comes to banning physician-assisted suicide, a government acts paternalistically and deciding that it is better for someone to continue living for a few more months, although that means the resulting suffering. It`s not that different from a father forbidding his son to go with friends to a concert 200 miles away. But while many feel that the father has the right to restrict his son`s actions because he thinks it`s for his son`s good, they might still wonder why or how the government has the right to act paternalistically towards adults. Shiffrin discusses paternalism over the doctrine of unscrupulousness (UD), a rule sometimes applied by courts in the United States. The DU is a decision not to apply a treaty because it is considered excessively unilateral, exploitative or otherwise grossly unjust. The standard objection to the UD is that its application is paternalistic; but Shiffrin believes that even if it is a case of paternalism, it is justified. As the examples show, the issue of paternalism arises in many areas of our personal and public lives.
As such, this is an important area of applied ethics. But it also raises some theoretical questions. Perhaps most importantly, what powers is legitimate for a state that acts both compulsively and in the form of incitement? It also raises questions about how individuals, whether in an institutional or purely personal environment, should relate to each other. How to think about individual autonomy and its limits? What is it like to respect the personalities of others? What is the trade-off, if any, between respecting someone else`s well-being and respecting their right to make their own decisions? John Stuart Mill, Gerald Dworkin, and Seana V. Shiffrin all had ideas about paternalism. Mill believes that there is no justification for paternalism; Dworkin argues that to be justified, paternalistic laws must meet two criteria; and Shiffrin generally argues for paternalism. I will compare their ideas and analyze them with respect to physician-assisted suicide. Ultimately, I hope to convince you that Dworkin and Shiffrin`s arguments are not enough to resist the power of Mill`s arguments against paternalism. Of course, it is not always easy to distinguish between legal moralism and moral paternalism. If, as Plato does, it is believed that a bad deed harms the soul of the agent, then it will be possible to invoke moral paternalism rather than legal moralism.
It is important to note that there are two different justifications that are possible; One appeals to the mere immorality of the disturbed behaviour, the other to the damage caused to the character of the agent. Basically, the definition of paternalism in libertarian paternalism focuses only on the fact that nudges are used to improve the agents who are initiated. We could replace “paternalism” with “benevolence”, and nothing important would be left out, since the “libertarian” aspect takes up everything that is important. Whether this extension of the definition of paternalism is justified or not is a question of what issues are being studied and whether such an extension makes things clearer or more confusing. 11 In other words, the principle that the prevention of harm to others is the sole ground for legal coercion and that what is voluntarily agreed must not be regarded as damage. These are Mill`s main normative principles in On Liberty. Pure paternalism is paternalism in which the person or persons deprived of their liberty or autonomy are those who are protected. Impure paternalism occurs when the class of people whose freedom or autonomy is violated by any measure is greater than the group of people who are protected by it.
[3] This article examines some of the conceptual issues associated with the analysis of paternalism, and then discusses normative issues regarding the legitimacy of paternalism by the state and various civil institutions. But apart from cases of serious incompetence or other limitations, is paternalism justified? Think of hang gliding who refuses to wear safety devices because “it disturbs the feeling of flying like a bird,” or the smoker who believes that the joy of smoking makes up for years of death. It is clear that while many nudges (as defined) use bad reasoning, most do not. Some do not use reasoning at all, such as the eye/coffee sleeve. For Mill, paternalism would only be morally justified if it is necessary to preserve an individual`s autonomy – but these cases seem very rare, if they exist. In particular, there is nothing in a law prohibiting physician-assisted suicide that preserves a person`s autonomy. Both Fred`s autonomy and, to some extent, Dr. Bob`s autonomy are limited by this law.
Fred is not able to make the decision to live or not, and in the same way, Dr. Bob cannot make the decision to help Fred as Fred demands. The state has taken control of a decision that should be properly under the control of the individual. If, in order to decide on any of the above issues, a normative question must be decided, for example, whether someone is entitled to information, then the concept is not purely descriptive. Ultimately, the question of how to refine the conditions and what conditions to use is a matter of philosophical judgment. The term “paternalism,” as used in ordinary contexts, may be too amorphous to reflect on certain normative issues. One should opt for a hypothesis-based analysis, which is most useful for thinking about a certain set of problems. One could assume an analysis in the context of physicians and patients and another in the context of whether the state should ban unhealthy foods. The word paternalism comes from the Latin pater “father” via the adjective paternus “paternus”, which became paternalis in medieval Latin. [more explanations required] Some, such as John Stuart Mill, consider paternalism to be appropriate towards children: “It is perhaps hardly necessary to say that this teaching should apply only to people who are mature in their abilities. We are not talking about children or young people under the age that the law can define as the age of masculinity or femininity. [4] Paternalism towards adults is sometimes understood as treating them as if they were children.
[5] The controversy surrounding the helmet law concerns the problem of paternalism. Paternalism can be defined as an interference with a person`s freedom for his or her own good. The word recalls the image of a father (“pater” in Latin) who makes decisions for his children instead of letting them make their own decisions, on the grounds that “the father knows best”. The principle of paternalism underpins a variety of laws, practices and actions “a doctor who decides what is best for a patient, a sign prohibiting swimming without lifeguards on duty, laws against voluntary euthanasia, laws restricting the use of heroin, cocaine, marijuana and other drugs, mandatory pension plans and mandatory seat belt laws” all to protect our interests, whether we like it or not. Finally, some philosophers have argued that because we are social beings, all our decisions directly or indirectly affect others, and if our decisions would harm others, it is legitimate to interfere. People who are hurt by their stupid or risky behavior not only hurt themselves, but because people are connected, inevitably emotional and financial costs to others. Therefore, these philosophers argued that paternalism could always be morally justified. Dworkin argues that in terms of paternalism and law, it is the responsibility of the state to show exactly the nature of the potential harm and the likelihood of its occurrence, and that the state should intervene as little as possible, which is consistent with the justification for paternalistic interference. If intervention was taken in Fred`s desire to commit medically assisted suicide, the burden of proof on the state would be very high.
While it is clear that for some, calling a policy paternalistic means condemning or criticizing it, it does not prove that the term itself is evaluative. From a methodological point of view, it is preferable to examine whether a concept can be defined in non-normative terms, and only if this does not capture the relevant phenomena in order to accept a normative definition. A narrow-minded guardian deals only with the issue of state coercion, that is, the application of law enforcement. A broad paternalist deals with any paternalistic act: state, institutional (hospital policy) or individual. When we return to Mill, we find that in addition to his utilitarian and consequentialist argument against paternalism, he also has a non-consequentialist argument.
