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Justification(s) of Paternalism: which comes under the larger question of, What kinds of things may the law, morally, regulate?
The law curtails our freedom of action in many ways besides just criminal punishment. E.g. licenses and regulations, which are by definition types of limitation or restriction.
What underlying principle can justify this kind of action?
J.S. Mill identified “the harm principle.” Actions that might cause harm to others deserve to be regulated or restricted. Next question: what is “harm”? Defined by Mill as “a setback to someone’s interest or well-being.” This is a legitimate area for legal regulation.
Note: not everything we dislike counts as “harm”! If I want the moon to be green but it’s not, that doesn’t count as harm; or say I’m homophobic, and there are homosexuals around: that’s not a harm, because my life isn’t truly affected or set back.
We regulate many non-harms (e.g. by zoning laws). What if we go to a restaurant and a couple is having sex on a table? You aren’t harmed per se, but it may constitute an offense. You will be offended, and perhaps reasonably so, given normal expectations for dining out. Very difficult to regulate so many subjective areas, so we handle it by regulating the places where things may be permitted: zones of conduct.
What about harm to self? Do we have a right to legislate against that? If we do, we are by definition engaging in Paternalism. Seat-belt laws are a good example. Paternalism not confined to the legal realm: parents are paternalistic; teachers can be; friends too.
You can be paternalistic towards yourself: go on a diet, put a timer lock on your fridge! We can have multiple parties involved, some indirectly: Father A tells older son B “Don’t smoke in the house, you’re a bad example for your little brother [C]!”
A common example: regulating prescriptions. “A” state tells “B” pharmacist not to dispense w/o prescription to protect “C” patient/consumer.
These examples are a can of worms! Why make a law about seat belts, for example? Why not just inform people that they save lives? Well, most people would ignore. But by what right does the state interfere with that impulse?
Hold that question: but for now, consider what other mechanisms state can use to accomplish paternalism? Answer: Default Rules. By default, you’re in Social Security, so you will have some savings in your old age, whether you want that or not. Industry does this too with pensions, but they give you the option to opt out. But the default is to be enrolled and have money deducted.
Libertarianism is the opposite of Paternalism.
Direct Paternalism examples:
recreational drug laws
regulation of minors’ activities
truancy laws
mandatory healthcare requirement [which suggests that Paternalism and Consequentialism are closely linked]
gambling laws
Indirect Paternalism examples:
doctor assisted suicide regulations
teacher licensing [most forms of licensing???]
mandatory curriculum
censorship of songs, movies
safety regulations for employers
Marmor: why go through these example? Because they’re problematic!
For each paternalistic law, we can find other rationales. E.g. seat belts: we don’t care about the driver, we care about social costs of accidents! That’s our justification!
Healthcare law: paternalistic, but truer justification is social justice: making young people subsidize the older, which is also reciprocal justice.
Hence, paternalistic justifications are unconvincing; they lose credibility--even when they’re legitimate. That’s a problem for society, as is wrong understanding. [“In order for the state to be well-governed, we first need to call everything by its right name” Confucius]
We still don’t have a justification of paternalism!
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