Paternalism: A Flawed Basis for Liberty-limiting Policies?

This article discusses coercive paternalism, a concept of liberty-limitations that has gained significant attention in recent decades. In opposition to the libertarian type of paternalism proposed by the well-known ‘Nudgers’ Richard H. Thaler and Cass R. Sunstein (2008), Sarah Conly (2013) advocates coercive interventions in Against Autonomy: Justifying Coercive Paternalism. Her influential work serves as a basis for scrutinizing the validity of coercive paternalism’s presuppositions as well as the internal coherence of the concept. Following the fundamental groundwork of especially Joel Feinberg and Gerald Dworkin, arguments against coercive paternalism are evaluated. They include the reciprocal (rather than unilateral) relationship between the ‘present self’ and the ‘future self’ in the paternalist’s account, the questionable legitimacy of punishment for self-harming behaviour and of coercion in general, the challenges of so-called ‘perfectionism’ and slippery-slopes, as well as a misconception about the alleged lack of rationality that serves as a justification for coercive paternalism. The article concludes by suggesting that – given the flaws of the concept – it may be reasonable to favour soft paternalism à la John Stuart Mill based on the harm principle over Conly’s proposal for a more extensive form of coercive paternalism.

Drug Policy, Paternalism and the Limits of Government Intervention

Gerald Dworkin provides an insightful starting point for determining acceptable paternalism through his commitment to protecting our future autonomy and health from lasting damage. Dworkin grounds his argument in an appeal to inherent goods, which this paper argues is best considered as a commitment to human flourishing. However, socialconnectedness is also fundamental to human flourishing and an important consideration when determining the just limits of paternalistic drug controls, a point missing from Dworkin’ essay. For British philosopher Thomas Hill Green, regulation of alcohol sales emerged from the social ideal. Green argued that policy interventions, including restricted opening hours and locations, improved the conditions for humans to flourish. Green offers a compelling political vision but fails to account for the fact pleasure is also an inherent good. He focused excessively on our social nature, excluding our more pleasure-seeking and egoistic characteristics. In contrast, a more realistic and complete vision of human flourishing can be found in an amended version of Gerald’s Dworkin’s arguments. In conclusion, this paper argues drug policy makers should remain committed to the harm principle as applied to criminal law whereby a person should never be criminalized for self-harm. Such a limit on paternalistic interventions is deemed necessary when eudaimonia is the end of government action. In practical terms, this means that the criminalization of drug use, as opposed to drug production, is always unjust.

Personal responsibility for health: the impact of digitalisation

Fostering the personal responsibility of patients is often considered a potential remedy for the problem of resource allocation in health care systems. In political and ethical debates, systems of rewards and punishments based on personal responsibility have proved very divisive. However, regardless of the controversies it has sparked, the implementation of personal responsibility in concrete policies has always encountered the problem of practical enforceability, i.e.how causally relevant behaviour can be tracked, allowing policies of this kind to be applied in a fine-grained, economically viable and accurate fashion. In this paper, we show how this hurdle can be seemingly overcome with the advent of digitalisation in health and delineate the potential impact of digitalisation on personal responsibility for health. We discuss how digitalisation – by datafying health and making patients transparent – promises to close the loophole of practical enforceability by allowing to trace health-related lifestyle choices of individuals as well as their exposure to avoidable risk factors. Digitalisation in health care thereby reinforces what Gerald Dworkin has called the causal aspect of personal responsibility and strengthens the implicit syllogism that – since exposure to risk factors happens at the individual level – responsibility for health should be ascribed to the individual. We conclude by addressing the limitations of this approach and suggest that there are other ways in which the potential of digitalisation can help with the allocation of resources in health care.

AUTONOMÍA PERSONAL Y REFLEXIÓN: UN ANÁLISIS DE LAS IDEAS DE HARRY FRANKFURT Y GERALD DWORKIN

Argumento en contra de una concepción de la autonomía personal centrada en la identificación entre deseos de primer y segundo orden -aquí denominada concepción empírica de las metapreferencias - y a favor de una concepción con eje en la idea de reflexión - la concepción normativa de las metapreferencias. Ambas, sostengo, son lecturas posibles de las tesis que respecto de la autonomía personal sostienen Harry Frankfurt y Gerald Dworkin. Por su vinculación con la concepción empírica rechazo un liberalismo radical tal que implique la obligación del estado de respetar cualquier plan de vida con que el agente se identifique. En virtud de su conexión con la concepción normativa sugiero, en cambio, la viabilidad de un perfeccionismo liberal donde el valor de la autonomía personal justifique la intervención estatal en los planes de vida que la amenazan.

Hierarchical analysis of personal authonomy and the problem of manipulation

In the first part of the paper I investigate a hierarchical analysis of personal autonomy which is developed through Harry Frankfurt?s theory of free will and Gerald Dworkin?s theory of personal autonomy. Hierarchical analysis of personal autonomy considers person autonomous regarding desire A if he has the desire to have desire A. One of the main advantages of hierarchical analysis of autonomy is that it does not require a person to have any specific values to be considered autonomous. In spite of this and other advantages, hierarchical analysis of personal autonomy is facing the problem of manipulation which I will discuss in the second part of paper. Frankfurt`s theory is purely structural and ahistoric because it does not take in consideration a way of acquiring second order desires or desire to desire or not desire A. That allows the possibility of influences on a person that would diminish their autonomy. On another hand, Dworkin apparently avoids the problem of manipulation by introducing a requirement for procedural independence which protects a person from influences which are paradigmatic cases of violating of autonomy. However, Dworkin`s contribution is not theoretically satisfying because it is not enough for acceptable analysis of autonomy to just list few intuitive examples of constraining personal autonomy, but it is necessary to propose a reason why that kind of influences is considered dangerous for personal autonomy viz to establish some kind of criteria. Such criteria will enable us to evaluate borderline cases about which people have different intuitions according to it. That is the reason why the final goal of this paper is to contribute to the definition of criteria on which procedural independence will be based, through a systemic approach to the problem of manipulation.

Paternalismo Jurídico-Penal, Autonomia e Vulnerabilidade: Critérios de Legitimação de Intervenções Paternalistas sobre a Autonomia Individual em Matéria Penal

O trabalho que se apresenta tem como objetivo questionar a legitimidade das intervenções paternalistas estatais sobre a autonomia individual por meio de mecanismos penalísticos institucionais. Neste sentido, o trabalho buscará compreender em que casos está o Estado autorizado a exercer ingerência na vida particular dos indivíduos sob a justificativa de promover-lhes um bem ou evitar-lhes um mal e, da mesma forma, em quais hipóteses tal ingerência é abusiva da liberdade individual de autodeterminação. Para tanto, serão estudados os conceitos correntes de paternalismo, a classificação doutrinária das intervenções paternalistas que têm a utilidade de demonstrar espécies admissíveis e inadmissíveis de paternalismo e as doutrinas antipaternalistas de Joel Feinberg e Gerald Dworkin. Em seguida, o tema será analisado em cotejo com a consideração dos bens jurídico-penais envolvidos nos conflitos entre autonomia, vulnerabilidades humanas e paternalismo, especialmente quanto à (in)disponibilidade desses bens. Ao final, pretende-se traçar critérios para a legitimação dos atos paternalistas esculpidos em leis penais que se sobrepõem ao exercício da autonomia individual, tendo-se em mira a harmonização entre os valores constitucionais de respeito à autonomia, proteção de sujeitos vulneráveis e a função do Direito Penal de exclusiva proteção de bens jurídicos.

International paternalism and humanitarian governance

This article argues that paternalism is an organizing principle of the international humanitarian order. The international community is increasingly organized to preserve, protect, and promote human life, reflecting an ethics of care and impulse to intervene for the greater good. This mixture of care and control is captured by the concept of paternalism, which Gerald Dworkin famously defined as ‘the interference with a person’s liberty of action justified by reasons referring exclusively to the welfare, good, happiness, needs, interests or values of the person being coerced’. Paternalism is either present or dormant in many (if not nearly all) interventions that are designed for the betterment of people and the good of humanity. This article has four goals: 1) to reassess and examine the analytical power of this much maligned and misunderstood concept; 2) to consider the dimensions upon which paternalism varies in order to develop the concept’s value for empirical analysis; 3) to speculate how and why paternalism’s form has moved from ‘strong’ to ‘weak’ over the last hundred years; and, 4) to consider whether, why, and when paternalism might be legitimate.

AUTONOMY, DURESS, AND COERCION

For the past three decades philosophical discussions of both personal autonomy and what it is for a person to “identify” with her desires have been dominated by the “hierarchical” analyses of these concepts developed by Gerald Dworkin and Harry Frankfurt. The longevity of these analyses is owed, in part, to the intuitive appeal of their shared claim that the concepts of autonomy and identification are to be analyzed in terms of hierarchies of desires, such that it is a necessary condition for a person to be autonomous with respect to (to identify with) a desire that moves her to act, that she desires that this desire so move her. (Conversely, on these analyses, a person will not be autonomous with respect to a desire that she is moved by, she will not identify with it, if she does not want to be so moved.) Despite the intuitive appeal of these analyses, however, Irving Thalberg has argued that they should be rejected. This is because, he argues, a person who is forced to perform an action by being subjected to duress of a certain degree of harshness will desire to be moved by her desire to submit. Thus, he continues, the proponents of hierarchical analyses of autonomy and identification will be forced to hold that such a person acted willingly, and did not suffer from any impairment in her autonomy. This, Thalberg concludes, is so counterintuitive as to justify rejecting hierarchical analyses.

What's Wrong with Selling Yourself into Slavery? Paternalism and Deep Autonomy

Such thinkers as John Stuart Mill, Gerald Dworkin, and Richard Doerflinger have appealed to the value of freedom to explain both what is wrong with slavery and what is wrong with selling oneself into slavery. Practical ethicists, including Dworkin and Doerflinger, sometimes use selling oneself into slavery in analogies intended to illustrate justifiable forms of paternalism. I argue that these thinkers have misunderstood the moral problem with slavery. Instead of being a central value in itself, I argue that freedom is a means of serving the real value of autonomy. Moreover, I argue that autonomy is ambiguous. In cases of conflict, autonomous choice, here called "shallow autonomy", can justifiably be limited to serve "deep autonomy", or self-rule. I use these notions to give a better understanding of the problem with selling oneself into slavery, and argue that the work of Dworkin has to be seriously revised, and Doerflinger's position has to be given up altogether.