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.

International Criminal Justice and Expressivist Theory

The origins of expressivism lie in sociology (e.g. Emile Durkheim) and communicative theories of criminal law (e.g. Joel Feinberg, Antony Duff). These ideas have been developed in contemporary criminal law doctrine (e.g. Günther Jakobs, Andrew von Hirsch, Tatjana Hörnle, Claus Roxin), transitional justice (e.g. Mark Osiel, Pablo de Greiff), and international criminal law. The chapter develops a contemporary theory of expressivism. It argues that expressivism is rooted in a communicative cycle between norms as messages, crimes as messages, and judicial responses. This triad provides an explanation for the functioning of expressivism. It can be divided into norm expression and diverse types of agent-related expression. Their application involves different tensions: empirics versus faith, power-related critiques, instrumentalism, and mediation of messages.

Rights and Demands

This book is the first extended treatment of demand-rights, a class of rights apt to be considered rights par excellence. Centrally, to have a demand-right is to have the standing or authority to demand a particular action from another person, who has a correlative obligation to the right-holder. How are demand-rights possible? Linking its response to central themes and positions within rights theory, Rights and Demands argues for two main theses. First, joint commitment, in a sense that is explained, is a ground of demand-rights. Second, it may well be their only ground. The first thesis is developed with special reference to agreements and promises, generally understood to ground demand-rights. It argues that both of these phenomena are constituted by joint commitments, and that this is true of many other central social phenomena also. In relation to the second thesis it considers the possibility of demand-rights whose existence can be demonstrated by moral argument without appeal to any joint commitment, and the possibility of accruing demand-rights through the existence of a given legal system or other institution construed without any such appeal. The relevance of the book’s conclusions to our understanding of human rights is then explained. Classic and contemporary rights theorists whose work is discussed include Wesley Hohfeld, H. L. A. Hart, Joel Feinberg, Immanuel Kant, Thomas Scanlon, Judith Thomson, Joseph Raz, and Stephen Darwall.

Demand-Rights—and the Demand-Right Problem

Starting with some important remarks of Hohfeld’s on legal claims, this chapter introduces and focuses on rights of the kind accrued by the parties to informal agreements, among others, which it labels “demand-rights.” One with a demand-right has, centrally, the standing to demand an action from the right’s addressee. This point is clarified as, among other things, demands are distinguished from requests and commands. H. L. A. Hart’s discussion of a promisee’s rights is reviewed, and demand-rights are further characterized by means of a series of equivalences of Hohfeld’s type. Some possible further equivalences, including one suggested by remarks of Joel Feinberg, are considered. An argument for the primacy of demand-rights is sketched and the demand-right problem is raised: how are demand-rights possible?

Würde am Ende der Autonomie

With reference to Joel Feinberg and Stephen Darwall, this paper develops a concept of human dignity which considers dignity as a fragile and vulnerable quality that can be lost and violated in specific situations. In contrast to holistic approaches to dignity, it requires the recognition of others as a source for a person’s normative authority about his or her life. Pre-forms of this concept are also relevant in the organisation of dementia care. In order to maintain the normative authority about the lives of dementia patients, care-givers are encouraged to respect their expressive actions and responses. Ignoring these expressions constitutes a violation of the dignity of dementia sufferers.

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.

6. Crime and punishment

This chapter explores some of the most important arguments that have been advanced in the philosophical debate over crime and punishment. More specifically, it examines the question of what justifies the alleged right of states to punish their citizens. Without a convincing answer to this question, the radical conclusion that the criminal justice system should be abolished deserves a consideration. The chapter first explains what we mean by ‘punishment’ before discussing a range of approaches to the justification of punishment, including consequentialism, retribution, and mixed approaches. A case study on international crimes is presented, along with Key Thinkers boxes featuring Joel Feinberg and R. A. Duff.