In this paper, I critique one aspect of Simester and von Hirsch’s, Crimes, Harms, and Wrongs—their recognition of harm and offence principles, but failure to construct a paternalistic principle, despite their willingness to countenance some small measure of criminal paternalism. Construction of such a principle would have clarified the problems of as well as the limits to criminalising paternalism.

When, if ever, is paternalism justified? I defend the principle that paternalism is justified only if it is neutral, that is, the motivation for it is compatible with all conceptions of the good life. Three other principles of paternalism are examined. The balancing view says that we must balance the values of liberty and well-being against each other and that paternalism is justified only if well-being outweighs liberty. The consent principle says that paternalism is justified only if consented (...) to. The voluntariness principle says that intervention is justified only when the conduct in question is substantially nonvoluntary. These three views are either implausible, plausible only if they are supplemented with the neutrality principle, or plausible only because they already presuppose that principle. (shrink)

Is it ethical for doctors or courts to prevent patients from making choices that will cause significant harm to themselves in the future? According to an important liberal principle the only justification for infringing the liberty of an individual is to prevent harm to others; harm to the self does not suffice.In this paper, I explore Derek Parfit’s arguments that blur the sharp line between harm to self and others. I analyse cases of treatment refusal by capacitous patients and (...) describe different forms of paternalism arising from a reductionist view of personal identity. I outline an Identity Relative Paternalistic Intervention Principle for determining when we should disallow refusal of treatment where the harm will be accrued by a future self, and consider objections including vagueness and non-identity.Identity relative paternalism does not always justify intervention to prevent harm to future selves. However, there is a stronger ethical case for doing so than is often recognised. (shrink)

Mill’s proscription that ‘the only purpose for which power can be rightfully exercised over any member of a civilised community, against his will, is to prevent harm to others’ has become almost axiomatic in bioethics. 1 Bolstered by the rise of patient autonomy during the mid-20th century, Millian conceptions of freedom have become so embedded in bioethical theory, that attempts to justify paternalism have typically involved making one of two claims. Either, they have involved refuting the significance of autonomy as (...) an ethical principle, and questioning whether it should always be taken to outweigh other ethical principles. Or, they have sought to cast doubt on the autonomous quality of specific decisions, challenging them as non-autonomous in some important way. Both approaches are readily apparent in discussions about the moral authority of advance directives, where people have questioned both whether precedent autonomy should always outweigh the person’s current best... (shrink)

I take as my starting point the “one very simple principle” proclaimed by Mill in On Liberty … “That principle is, that the sole end for which mankind are warranted, individually or collectively, in interfering with the liberty of action of any of their number, is self-protection. That the only purpose for which power can be rightfully exercised over any member of a civilized community, against his will, is to prevent harm to others. He cannot rightfully be compelled (...) to do or forbear because it will be better for him to do so, because it will make him happier, because, in the opinion of others, to do so would be wise, or even right.”. (shrink)

The principle of legal paternalism justifies state coercion to protect individuals from self-inflicted harm, or in its extreme version, to guide them, whether they like it or not, toward their own good. Parents can be expected to justify their interference in the lives of their children on the ground that “daddy knows best.” legal paternalism seems to imply that since the state often can know the interests of individual citizens better than the citizens know them themselves, it stands as (...) a permanent guardian of those interests in loco parentis. Put in this blunt way, paternalism seems a preposterous doctrine. If adults are treated as children they will come in time to be like children. Deprived of the right to choose for themselves, they will soon lose the power of rational judgment and decision. Even children, after a certain point, had better not be “treated as children,” else they will never acquire the outlook and capability of responsible adults. (shrink)

Toleration is one of the fundamental principles that inform the design of a democratic and liberal society. Unfortunately, its adoption seems inconsistent with the adoption of paternalistically benevolent policies, which represent a valuable mechanism to improve individuals’ well-being. In this paper, I refer to this tension as the dilemma of toleration. The dilemma is not new. It arises when an agent A would like to be tolerant and respectful towards another agent B’s choices but, at the same time, A is (...) altruistically concerned that a particular course of action would harm, or at least not improve, B’s well-being, so A would also like to be helpful and seeks to ensure that B does not pursue such course of action, for B’s sake and even against B’s consent. In the article, I clarify the specific nature of the dilemma and show that several forms of paternalism, including those based on ethics by design and structural nudging, may not be suitable to resolve it. I then argue that one form of paternalism, based on pro-ethical design, can be compatible with toleration and hence with the respect for B’s choices, by operating only at the informational and not at the structural level of a choice architecture. This provides a successful resolution of the dilemma, showing that tolerant paternalism is not an oxymoron but a viable approach to the design of a democratic and liberal society. (shrink)

Ebejer and Morden (Paternalism in the Marketplace: Should a Salesman Be His Buyer's Keeper?, Journal of Business Ethics 7, 1988) propose limited paternalism as a sufficient regulative condition for a professional ethic of sales. Although the principle is immediately appealing, its application can lead to a counter-productive ethical quandary I call the Pontius Pilate Plight. This quandary is the assumption that ethical agents' hands are clean in certain situations even if they have done something they condemn as immoral. Since (...) limited paternalism can give rise to this queer conclusion in the salesperson/buyer relationship, the principle is suspect. It may be a necessary condition for ethical sales, but is not sufficient. This discussion concludes by suggesting two additional criteria which, when complemented by the limited paternalism principle, are jointly sufficient. (shrink)

BackgroundPatient autonomy is a fundamental, yet challenging, principle of professional medical ethics. The idea that individual patients should have the freedom to make choices about their lives, including medical matters, has become increasingly prominent in current literature. However, this has not always been the case, especially in communist countries where paternalistic attitudes have been interwoven into all relationships including medical ones. Patients’ expectations and the role of the doctor in the patient-physician relationship are changing. Croatia, as a transitional (...) country, is currently undergoing this particular process.MethodsQualitative research was conducted by means of six focus group discussions held in the years 2012 and 2013 in Croatia. Focus groups were held separately with each of the following: first year and final year medical students, physicians engaged in medical ethics education, physicians practicing in a clinical hospital, family medicine residents and individuals representing patients with chronic disease. This research specifically addresses issues related to patient autonomy, in particular, the principles of truth telling, confidentiality, and informed consent. All focus group discussions were audio taped and then transcribed verbatim and systematized according to acknowledged qualitative analysis methods.Results and discussionPatient autonomy is much more than a simple notion defined as the patient’s right to make treatment decisions independently. It has to be understood in context of the broader socio-cultural setting. At present, both patients and medical doctors in Croatia are increasingly appreciating the importance of promoting the principle of autonomy in medical decision-making. However, the current views of medical students, physicians and patients reveal inconsistencies.Conclusions Knowing how to respect the various facets of patients’ autonomy should be part of physician’s professional duties, and also be reflected in his or her core clinical competencies. For this reason greater importance should be dedicated to patient autonomy issues in medical education in Croatia. (shrink)

Paternalistic behaviour directed towards a person’s informed and competent decisions is often thought to be morally impermissible. This view is supported by what we can call the Anti-Paternalism Principle. While APP might seem plausible when employed to show the wrongness of paternalism by the state, there are some cases of paternalistic behaviour between private, informed, and competent individuals where APP seems mistaken. This raises a difficulty for supporters of APP. Either they need to reject APP to accommodate (...) our intuitions in these cases, or provide grounds for thinking that paternalistic behaviour between certain private individuals is different in a morally relevant sense. In this paper, I explore several possible morally relevant differences, and find all of them unsatisfactory as grounds for maintaining the plausibility of APP. (shrink)

Medical clinicians – doctors, nurses, nurse practitioners etc. – are charged to act for the good of their patients. But not all ways of acting for a patient's good are on par: some are paternalistic; others are not. What does it mean to act paternalistically, both in general and specifically in a medical context? And when, if ever, is it permissible for a clinician to act paternalistically? In Medical Paternalism Part 1, I answered the first question. This paper answers (...) the second. The place of paternalism in clinical medicine is best understood, I argue, in terms of the potential for conflict between the autonomy principle and the beneficence principle. The first enjoins clinicians to respect the decisions of patients with respect to their (the patients') own care. The second enjoins clinicians to act for the good of their patients. Clinicians act paternalistically, I argue, when they act on the beneficence principle to the exclusion of the autonomy principle. Understanding just what these principles amount to (particularly the autonomy principle) reveals that the autonomy principle defeasibly trumps the beneficence principle and that, as a result, acting paternalistically (at least when it comes to competent patients) is presumptively impermissible. (shrink)

324 "we should impose a single legal restriction that would effectively eliminate boxing's main medical risk: a complete ban on blows to the head" against Mill's harm principle, is not possible to justify paternalism requires other paternalistic arguments 325 "the entire paternalism v. respect for autonomy debate as it applied to boxing is cast in nonconsequentialist terms" do we have any reason to suppose that boxers' decisions to enter the profession are lacking in autonomy? many fail the first (...) hurdle: "having adequate information" - unlikely to know the medical facts 326 liberal view would state we need better education, not paternalism stronger paternalism = "an autonomous decision must flow from the agent's own values, without undue pressure from other people or external circumstances." otherwise is coercive and precludes autonomous action "since boxers often come from severely disadvantaged backgrounds and may see boxing as their only means of escaping from dangerous, povery-stricken neighborhoods, their decision to become boxers may reflect their desperation, rather than an authentic desire that flows from their own considered values". (shrink)

Good corporate governance requires that managers promote shareholder interests but it cannot be assumed they will act in this manner. Though this is an observation most managers would acknowledge, many argue they should be free of external regulatory intervention because regulations designed to protect shareholders are necessarily a form of paternalism that take from shareholders decisions that are rightly theirs to make. We question this perspective by showing that regulations founded on paternalist principles are compatible with a liberal economy and (...) social relations. We identify when a paternal approach to decision making is justified and add substance to our argument by responding to claims that the Principles of Good Governance1 promulgated by the Australian Stock Exchange (ASX) are an unacceptable infringement on managers’ right to govern their enterprises because they are supposedly paternalist. We reject this argument and suggest that while the current ASX principles are not paternalistic there is a case for ensuring shareholder protection is informed by paternalist principles. (shrink)

Wherever a government or state is concerned with the welfare of its citizens, there will probably also exist policies which compel the individual citizen to undertake or abstain from activities which affect that citizen alone. The set of theories behind such policies is collectively known as ‘paternalism’. It is not hard to understand why this term has developed strong pejorative overtones. Policies of this type appear to offend a fundamental tenet of liberal societies: namely, that the individual is best placed (...) to know what is in his or her interests. Paternalistic policies imply, and are concerned with correcting, failures of precisely this kind of judgement. And yet, at the same time, there is a popular consensus that compelling people to wear a seat belt when driving a car is a reasonable restriction of personal liberty. Paternalism may be difficult to accept in principle, but it is equally difficult to avoid in practice. Not surprisingly, the literature reveals a long heritage of debate in a wide range of academic disciplines. This debate reveals a failure to make progress in two areas in particular. First, analyses of paternalism often confuse policies which are actually concerned with correcting failures of market exchange — in particular, those concerned with insufficient or imperfect information — with those which are genuinely paternalistic. One objective of this paper will be to clarify the difference between these two kinds of policy. (shrink)

Different ideas of the normative relevance of autonomy can give rise to profoundly different action-guiding principles in healthcare. If autonomy is seen as a value rather than as a right, it can be argued that patients’ decisions should sometimes be overruled in order to protect or promote their own autonomy. We refer to this as paternalism in the name of autonomy. In this paper, we discuss different elements of autonomy (decision-making capacity, efficiency, and authenticity) and arguments in favor of paternalism (...) for the sake of autonomy that have been proposed in the bioethical debate. We argue that if autonomy is valuable, then paternalism for the sake of autonomy may be justified. However, policies allowing paternalism in the name of autonomy may be self-defeating. (shrink)

This essay argues that Dworkin, Feinberg and others who claim exceptions against the principle of paternalism for the sake of preventing seroius physical harm are forced to treat mature adults as mental incompetents and that they are forced to do so by the prevailing concept of paternalism itself. The essay then shows how we can get around this dilemma by re-thinking paternalism as part of distinctly paternal relationships of domination and inequality.

_ Source: _Page Count 24 Seat belt mandates seem like a paradigmatic case of justified paternalism. Even those who generally object to paternalism often concede that seat belt laws are justified. Against this near-consensus in favor of mandates, I argue that seat belt laws are unjust and public officials should not enforce them. The most plausible exceptions to a principle of anti-paternalism do not justify seat belt mandates. Some argue that seat belt mandates are not paternalistic because unbelted (...) riders are not fully autonomous. Others claim that the decision to ride unbelted harms other people. Yet these attempts to defend seat belt mandates on non-paternalistic grounds cannot overcome the case against seat belt mandates. I therefore conclude that _even_ seat belt mandates are unjust. With this comprehensive case against seat belt mandates, I demonstrate the more general difficulties in justifying any form of coercive paternalism. (shrink)

A principle of paternalism must be able to answer three questions. Who are the persons who are the proper object of paternalism? Which actions should we prevent persons from doing or induce them to perform? What should our goals be when acting paternalistically toward these persons? A satisfactory principle will also be reasonably precise in distinguishing appropriate from inappropriate instances of paternalism, and it will be comprehensive, speaking to most potential cases, including suicide. My purpose is not to (...) reach a conclusion about the acceptability of paternalistic restrictions on suicide. Rather, because such a conclusion will follow from the way in which a principle of paternalism is formulated, I want to examine several liberal attempts at formulation and the theoretical background underlying these attempts. (shrink)

The practice of paternalism has changed along with developments in medicine, philosophy, law, sociology and psychology. Physicians have learned that a patient's values are a factor in determining what is best for that patient. Modern paternalism continues to be guided by the principle that the physician decides what is best for the patient and pursues that course of action, taking into account the values and interests of the patient. In the autonomy model of the doctor-patient relationship, patient values are (...) decisive. In the paternalistic model, they are but one among several factors the physician must consider in making a medical decision. Although difficult to practise because of limitations in empathising with another person, modern paternalism remains a way to achieve maximum patient benefit. (shrink)

Seat belt mandates seem like a paradigmatic case of justified paternalism. Even those who generally object to paternalism often concede that seat belt laws are justified. Against this near-consensus in favor of mandates, I argue that seat belt laws are unjust and public officials should not enforce them. The most plausible exceptions to a principle of anti-paternalism do not justify seat belt mandates. Some argue that seat belt mandates are not paternalistic because unbelted riders are not fully autonomous. (...) Others claim that the decision to ride unbelted harms other people. Yet these attempts to defend seat belt mandates on non-paternalistic grounds cannot overcome the case against seat belt mandates. I therefore conclude that even seat belt mandates are unjust. With this comprehensive case against seat belt mandates, I demonstrate the more general difficulties in justifying any form of coercive paternalism. (shrink)

This paper argues that the concept of paternalism is currently overextended to include a variety of actions that, while resembling paternalistic actions, are importantly different. I use the example of Japanese physicians’ non-disclosures of cancer diagnoses directly to patients, arguing that the concept of maternalism better captures these actions. To act paternalistically is to substitute one's own judgement for that of another person and decide in place of that person for his/her best interest. By contrast, to act maternalistically is (...) to decide for another person based on a reasonable understanding of that person's own preferences. The concept of maternalism allows for a more thorough assessment of the moral justification of these types of actions. I conclude that it is possible, at least in principle, to justify Japanese physicians’ non-disclosures, and that this justification must be based on an understanding of these actions as maternalistic. (shrink)

In this paper, I argue against the commonly held view that paternalism is all things considered wrong when it interferes with a person’s autonomy. I begin by noting that the plausibility of this view rests on the assumption that there is a morally relevant difference in the normative reasons concerning an intervention in a person’s self-regarding actions and an intervention in his other-regarding actions. I demonstrate that this assumption cannot be grounded by wellbeing reasons, and that autonomy-based reasons of non-interference (...) also cannot adequately explain the difference. Following this, I propose that the difference in the reasons related to an intervention in a person’s self-regarding actions and an intervention in his other-regarding actions can be explained by the value of holding a person responsible for his choices. Nonetheless, this does not result in paternalistic behavior that interferes with autonomy being all things considered wrong. Instead, I show that the reason to hold a person responsible for a diminution of his wellbeing does not necessarily defeat the wellbeing reasons that count in favor of paternalistic behavior. (shrink)

Paternalism has attracted new defenders in recent years. Such defenders typically either downplay the normative significance of autonomy or deny that we are sufficiently rational for paternalistic interventions to be objectionable.1 Both of these argumentative strategies constitute challenges to John Stuart Mill’s influential anti-paternalistic ‘harm principle’, which states that coercive interference with the liberty of competent adults is justifiable only if such interference prevents harm to non-consenting third parties (Mill, p. 23).2 In this journal, Wilkinson has provided (...) a novel, provocative defence of paternalism in the medical context—one that (provisionally) accepts rather than challenges Mill’s harm principle.3 Wilkinson’s argument is complex. But he begins with Parfit’s influential account of personal identity.4 According to Parfit, Alice at T1 can be the same person as Alice at T2, but the extent to which Alice at T1 and Alice at T2 are similar depends on the extent to which there are ‘chains’ of strong psychological connections between Alice at T1 and Alice at T2. Strong psychological connections, in turn, are mental states such as intentions or beliefs, or psychological traits. For example, if Alice at T2 remembers very little about herself the day before, and the day before that, all the way to Alice at T1, Alice at T2 has completely different psychological traits than Alice at T1—for example, Alice at T1 was courageous, whereas Alice at T2 is cowardly—then Alice at T1 and Alice at T2 are distinct persons. If the harm principle is correct and Alice is autonomous, it is permissible to interfere with Alice’s liberty only if it prevents harm to some non-consenting third party. But if we accept Parfit’s view on personal identity, then a novel defence of paternalistic intervention emerges: Alice at T2 may well be a distinct person from Alice at T1. So, …. (shrink)

Among fundamental, widely shared values, there are two which often come into conflict, creating a serious moral dilemma, viz., the value of individual well-being and the value of individual self-direction. These values issue in two fundamental moral principles, one which prescribes the protection of others from harm, and one which proscribes interfering with a person's right to direct his own life and actions. When an individual is doing or choosing something which subjects him to harm or significant risk of harm, (...) the question of paternalistic interference arises.Since John Stuart Mill's On Liberty, there have been a number of attempts to say when such protective interference with adults is morally acceptable. (shrink)

Cass Sunstein and Richard Thaler have been arguing for what they named libertarian paternalism (henceforth LP). Their proposal generated extensive debate as to how and whether LP might lead down a full-blown paternalistic slippery slope. LP has the indubitable merit of having hardwired the best of the empirical psychological and sociological evidence into public and private policy making. It is unclear, though, to what extent the implementation of policies so constructed could enhance the capability for the exercise of an (...) autonomous citizenship. Sunstein and Thaler submit it that in most of the cases in which one is confronted with a set of choices, some default option must be picked out. In those cases whoever devises the features of the set of options ought to rank them according to the moral principle of non-maleficence and possibly to that of beneficence. In this paper we argue that LP can be better implemented if there is a preliminary deliberative debate among the stakeholders that elicits their preferences, and makes it possible to rationally defend them. (shrink)

ABSTRACT If it could be shown that law is, in some sense, a moral system the apparent contradiction between (moral) autonomy and (legal) heteronomy might be challenged. In order to prepare for such a challenge this paper questions the prevailing view that law is not in the business of enforcing morals. That is done primarily by using decisions of the criminal courts to show that the law does not always criminalise conduct merely to prevent harm to others. Paternalism is distinguished (...) from the harm principle in order to show that the law (rightly or wrongly) sometimes seeks to secure that which is (thought to be) morally good, irrespective of the prevention of harm, at least overall harm. If such an insight is well founded there are consequences for legal theory in that neither of the ruling paradigms (naturalism and positivism) seems able adequately to accommodate the view of law which emerges. Consequently, an attempt is made in the essay to develop a middle theory of law, between naturalism and positivism, which is referred to as ‘normative positivism‘. The theory presented has, in turn, consequences for political practice. If law can be seen as community morality rather than as merely the morality of officials, then everyone has a stake in the moral content of law and there may be good moral reasons for disobeying official laws. Civil disobedience is the citizen's ultimate resort against the official morality that has appropriated to itself the eulogistic name of ‘law‘. That law may be seen as community morality also calls into question some ruling paradigms as to the nature of morality but, if the claim can be sustained, then the legal system may be seen as applied moral philosophy in action. (shrink)

Given that many people with disabilities have been excluded from political deliberation and subjected to infantilizing and degrading treatment from others, many members of the disability rights movement are understandably critical of policies and practices that speak on behalf of people with disabilities and presume to know what is really in their best interest. Yet, this analysis argues that a general principle of anti-paternalism is not desirable for disability politics. In particular, people with cognitive disabilities are sometimes unable to (...) make important decisions by themselves, and may require assistance from family members or more cognitively able and verbally fluent citizens to make their political voices and choices heard. Drawing from John Locke and Alasdair MacIntyre, this article reconsiders the relationship between paternalism and autonomy, suggesting that autonomous decisionmaking and expression are best thought of as collaborative processes undertaken between people with a range of capacities. (shrink)

Any paternalistic obligation a salesperson might have toward a client isnot, as was previously argued, determined or grounded in his/her being in a position of superior knowledge. Rather, the obligation stems first and most basically from the principle of non-maleficence. Beyond that, however, the particulars of any such obligation: who is vulnerable to being harmed, the harm(s) that might occur and even the kinds of actions that can reasonably be taken to protect a client from such harm, all (...) flow from the fact that the salesperson-client relationship is fundamentally one of dependency and trust.Various reasons are given to support this view and to indicate both the comprehensiveness and the fruitfulness of this way of perceiving the sales situation. In particular, the argument rules out of consideration what would, on analysis, be self-defeating or contradictory behavior on the part of the client and it helps explain why a salesperson is not obligated to certain behaviors. (shrink)

Many discussions of J. S. Mill's concept of liberty focus too narrowly on On Liberty and fail to acknowledge that his treatment of related issues elsewhere may modify its leading doctrines. Mill and Paternalism demonstrates how a contextual reading suggests that in Principles of Political Economy, and also his writings on Ireland, India and on domestic issues like land reform, Mill proposed a substantially more interventionist account of the state than On Liberty seems to imply. This helps to explain Mill's (...) sympathies for socialism after 1848, as well as his Malthusianism and feminism, which, in conjunction with Harriet Taylor's views, are central to his later discussions of the family and marriage. Feminism, indeed, is shown to provide the answer to the problem which most agitated Mill, overpopulation. Thus Gregory Claeys sheds new lights on many of Mill's overarching preoccupations, including the theory of liberty at the heart of On Liberty. (shrink)

This paper attempts a defense of John Stuart Mill’s absolute ban against paternalistic restrictions on liberty. Mill’s principle looks more credible once we recognize that some instances of what are thought to be justified instances of paternalism are not instances of paternalism at all—e.g. anti-duelling laws. An interpretation of Mill’s argument is advanced which stresses his commitment to autonomy and his suggestion that exactly the same reasons which favor absolute freedom of speech also favor an absolute prohibition of (...) paternalism. Alternative expositions and appraisals of Mill by Gerald Dworkin and Joel Feiriberg are criticized. Finally, consideration is given to two arguments that render Mill’s principle trivial via the denial that there are any significant self-regarding actions. (shrink)

In a Swedish setting physicians are unlikely to give explicitly paternalistic reasons when asked about their attitudes towards patients’ involvement in decision-making. There is considerable risk that they will disguise their paternalism by giving ‘socially correct answers’. We suggest that disguised paternalism can be revealed with the help of indexes based on certain responses in postal questionnaires. The indexes were developed using material from a study examining attitudes of Swedish physicians to physician-assisted suicide (PAS). Apart from being asked about (...) their attitudes, they were asked to prioritise between different arguments for and against PAS. One argument for PAS was: “PAS should be permitted out of respect for patients’ autonomy”. One argument against PAS was: “PAS should not be permitted since the non-maleficence principle in this case takes precedence over respecting patients’ autonomy”. Responses to the latter argument formed the cornerstone of a disguised-paternalism index, while an autonomy index was based on answers to the former argument. Applying our indexes to data from the PAS survey, we found that female GPs, surgeons, and older male physicians were least paternalistic. Among female physicians one finds both the most autonomy-respecting groups (female surgeons and GPs) and the least autonomy-respecting groups (female oncologists and psychiatrists); together with older male physicians in general, female GPs are the group displaying least disguised paternalism. We suggest that questionnaires exploring paternalism might be improved by including case-specific questions or statements by which to explore disguised paternalism. Here our indexes might be useful tools. (shrink)

Moral reasoning in bioethics -- Bioethics and moral theories -- Paternalism and patient autonomy -- Truth-telling and confidentiality -- Informed consent -- Human research -- Abortion -- Reproductive technology -- Genetic choices -- Euthanasia and physician assisted suicide -- Dividing up health care resources.

Over the last quarter of a century, English medical law has taken an increasingly firm stand against medical paternalism. This is exemplified by cases such as Bolitho v City and Hackney Health Authority, Chester v Afshar, and Montgomery v Lanarkshire Health Board. In relation to decision-making on behalf of incapacitous adults, the actuating principle of the Mental Capacity Act 2005 is respect for patient autonomy. The only lawful acts in relation to an incapacitous person are acts which are in (...) the best interests of that person. The 2005 Act requires a holistic assessment of best interests. Best interests are wider than ‘medical best interests’. The 2018 judgment of the Supreme Court in An NHS Trust v Y from patients in prolonged disorders of consciousness ) risks reviving medical paternalism. The judgment, in its uncritical endorsement of guidelines from various medical organisations, may lend inappropriate authority to medical judgments of best interests and silence or render impotent non-medical contributions to the debate about best interests—so frustrating the 2005 Act. To minimise these dangers, a system of meditation should be instituted whenever it is proposed to withdraw life-sustaining CANH from patients with PDOC, and there needs to be a guarantee of access to the courts for families, carers and others who wish to challenge medical conclusions about withdrawal. This would entail proper public funding for such challenges. (shrink)

In a recent article, Wilkinson puts forward the notion of identity-relative paternalism. According to Wilkinson’s final formulation of this principle, ‘[i]ndividuals should be prevented from doing to future selves (where there are weakened prudential unity relations between the current and future self) what it would be justified to prevent them from doing to others’.1 In medical ethics, it is usually assumed that hard paternalism, that is, acting against a competent person’s wishes for their own benefit, is not justified. According (...) to Mill’s harm principle, we may only limit people’s freedom if they cause harm to others.2 Harm to self is not a sufficient reason for overriding competent persons’ decisions. Wilkinson, however, draws on Parfit’s reductionist view of personal identity to argue that sometimes, patients’ future selves are sufficiently disconnected from their present selves to treat future selves like different persons. If a competent person’s medical decision negatively affects a future self, this should be treated like a case of harm to others. Thus, overriding competent persons’ decisions in such cases—and treating them against their will—could be justified. In this commentary, I point out two problems with this approach. First, I demonstrate that the cases Wilkinson’s argument is based on are not examples of harm to others but rather cases of surrogate decision making gone wrong, …. (shrink)

This paper brings a fresh, epistemic perspective to bear on prominent Confucian philosophers’ arguments for a hybrid Deweyan-Confucian democracy, or for an illiberal democracy with “Confucian characteristics.” Reconstructing principles for epistemic elitism and paternalism from the pre-Qin 秦 Confucian thought that inspires these advocates for Confucian democracy, it finds two major problems with their proposals. For those who abandon or modify this epistemic elitism and paternalism in accordance with , the result is a philosophical syncretism that is either unconvincingly Confucian (...) or unconvincingly Deweyan. For those who retain it in accordance with , the result is a democratic proposal that will lack legitimacy in increasingly pluralistic East Asian societies. In the end, there is a need for thinking that appropriately synthesizes Eastern and Western philosophies in a politically changing East Asia, but it would benefit from being less “Confucian.”. (shrink)

What I wish to do in this paper is to look at a part of John Stuart Mill's ‘one very simple principle’ for determining the limits of state intervention. This principle is, you will remember, that ‘the only purpose for which power can be rightfully exercised over any member of a civilized community, against his will, is to prevent harm to others. His own good, either physical or moral, is not a sufficient warrant.’.

Background Interest in strengthening residents’ autonomy in nursing homes is intensifying and professional caregivers’ experience ethical dilemmas when the principles of beneficence and autonomy conflict. This increased focus requires expanded knowledge of how residents experience decision-making in nursing homes and how being subject to paternalism affects residents’ dignity. Research question/aim This study explored how residents experience paternalism in nursing homes. Research design This study involved a qualitative interpretive design with participant observations and semi-structured interviews. The interpretations were informed by Gadamer’s (...) hermeneutics. Participants and research context Eleven residents were interviewed after a period of participant observation in two nursing homes. Ethical considerations The study was performed in accordance with the Helsinki declaration. The Regional Ethics Committee (REK) permitted the researcher to perform participant observation in the nursing homes. The use of audio recordings of interviews was registered and supervised by Sikt - Norwegian Agency for Shared Services in Education and Research. The resident’s consent was assessed continuously. Three interviews were terminated for ethical reasons. Findings The resident interviews revealed that residents found it obvious for caregivers to possess the decision-making authority in nursing homes. When residents explained their views, three main themes emerged: (1) To be included even though caregivers make the decisions, (2) Surrender to dependency, and (3) Adherence to nursing home norms. Conclusions Residents submit to their caregivers and give caregivers the responsibility and function as leaders. Paternalism was experienced as dignifying in situations where it contributed to residents being able to live according to second order desires and values, and when it implied respect and appraisal of residents’ capabilities. Paternalism was experienced as debasing when residents felt left out, and when residents felt that their capabilities were underestimated. This also included their capability to withstand paternalistic influence. (shrink)

Human development is meant to be transformational in that it aims to improve people's lives by enhancing their capabilities. But who does it target: people as they are or the people they will become? This paper argues that the human development approach relies on an understanding of personal identity as dynamic rather than as static collections of preferences, and that this distinguishes human development from conventional approaches to development. Nevertheless, this dynamic understanding of personal identity is presently poorly conceptualized and (...) this has implications for development practice. We identify a danger of paternalism and propose institutionalizing two procedural principles as side constraints on development policies and projects: the principle of free prior informed consent and the principle of democratic development. -/- . (shrink)

Paternalism, understood as coercive intervention with the behavior of a person in order to prevent her from causing harm to herself, is a highly controversial issue, because it implies a departure from the widely recognized principle of harm to others. Some conceptual differences between legal paternalism and other forms of state coercion that also depart from the principle of harm to others will be indicated. This is followed by an analysis of the arguments that are usually brought forth (...) against legal paternalism. And finally, the possibility of determining ethically justifiable types of legal paternalism is explored. (shrink)

In the grand debate between the paternalist and the libertarian, VanDeVeer sides decidedly with the libertarian. Paternalistic intervention he regards as presumptively wrong, and so the question becomes whether there are countervailing, morally relevant considerations by which paternalistic intervention can be justified. In shifting the burden of justification to the paternalist, VanDeVeer is not being innovative. H. L. A. Hart broke that ground in his Law, Liberty, and Morality in 1963, and Ronald Dworkin used the technique effectively in (...) his 1966 Yale Law Journal essay "Lord Devlin and the Enforcement of Morals." VanDeVeer's contribution, however, is in the explanation he gives for laying the burden of justification on those who would defend paternalistic intervention. Whereas Hart's explanation spoke at the societal or governmental level, VanDeVeer's speaks at the level of the individual person. He rests his argument on the essence of the libertarian position: a principle of overarching individual human autonomy. Consistent with his individualistic focus, he avoids restricting his definitions of paternalistic intervention to activities at the societal or governmental level. VanDeVeer insists that there are moral bounds to paternalistic intervention on the part of private individuals, and it is, perhaps, both the strength and the weakness of the book that he by and large joins conceptually paternalistic intervention by the government and paternalistic intervention by private individuals. (shrink)

This article analyses the paternalistic justification of the world’s first mandatory tobacco plain packaging policy, which came into force in Australia in 2012. The policy is setting international precedence, with a range of developed and developing countries planning and implementing similar policies. Understanding the paternalistic dimension of the policy is therefore of imminent international importance. The policy meets important ethical benchmarks such as respect for citizens’ self-interests and protection of others against harm. However, plain packaging faces a number (...) of ethical challenges: the policy is a controversial type of paternalism; it runs partially against the harm principle; and it fails to meet key operational criteria. (shrink)

In his essay on paternalism and personal identity, Wilkinson draws on Derek Parfit’s Reasons and Persons (1984) to call for a reappraisal of the role of paternalism in healthcare decision-making in situations in which patients with capacity make decisions which are likely to have harmful consequences for themselves.1 The imperative to respect autonomy, coupled with JS Mill’s insistence that the state is justified in interfering with an individual’s liberty only in situations in which she harms or threatens to harm another (...) person, leaves clinicians with little room to constrain decisions in which a patient’s choice may seriously harm her. Parfit reduces personal identity to the continuity of psychological and physical traits across the lifecourse, and suggests that, since these sets of characteristics change significantly over time, it may make more sense to view a person at different time points as different ‘selves’, rather than as the same person. Parfit’s defence of paternalism involves arguing that, given this inevitable lack of continuity, causing harm to one’s future self is analogous to harming another person and that intervening to prevent this may be justifiable in accordance with the Harm Principle.2 The issue of personal identity has received considerable attention in the philosophical literature and it remains a vexed question. Parfit’s argument, along with the thought experiments on …. (shrink)

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. (shrink)

This paper challenges the view that bans on kidney sales are unjustifiably paternalistic, that is, that they unduly deny people the freedom to make decisions about their own bodies in order to protect them from harm. I argue that not even principled anti-paternalists need to reject such bans. This is because their rationale is not hard paternalism, which anti-paternalists repudiate, but soft paternalism, which they in principle accept. More precisely, I suggest that their rationale is what Franklin Miller (...) and Alan Wertheimer call ‘group soft paternalism’. Group soft paternalistic policies restrict the freedom of autonomous individuals, not for their own good (hard paternalism), but as an unavoidable consequence of seeking to protect other, non-autonomous individuals from harms that they have not voluntarily chosen (soft paternalism). Group soft paternalism supports prohibiting kidney sales on three conditions: (1) that such sales are potentially harmful to vendors, (2) that many vendors would suffer impaired autonomy, and (3) that distinguishing between autonomous and non-autonomous vendors and interfering only with the latter is unfeasible. I provide reasons for thinking that these conditions will often hold. (shrink)

In their excellent monograph, Crimes, Harms and Wrongs, Andrew Simester and Andreas von Hirsch argue for an account of legitimate criminalisation based on wrongfulness, the Harm Principle and the Offence Principle, while they reject an independent anti-paternalism principle. To put it at its simplest my aim in the present paper is to examine the relationship between ‘the harms’ and ‘the wrongs’ of the authors’ title. I begin by comparing the authors’ version of the Harm and Offence (...) class='Hi'>Principle with some other influential accounts. After examining the role wrongfulness plays in their work, I ask what there is left for their Harm and Offence Principles to do. In the light of the understanding and foundations of the Harm and Offence Principles proposed by the authors, I suggest that the answer is little or nothing. The wrongfulness constraint the authors place on their Offence Principle comes close to swallowing it up entirely. Furthermore the part of their Offence Principle that is not thus swallowed by wrongfulness leaves the account with a commitment that is probably best dropped. As far as their Harm Principle is concerned I suggest that the authors’ account of ‘harm’ is so broad that it lacks the resources to distinguish harm-based reasons from wrongfulness- or immorality-based reasons in any principled way. Among other things, I ask in this context, first, whether one can be harmed as one’s character deteriorates and, secondly, whether one is harmed by virtue of the serious wrong one does to another. What really drives the authors’ account of legitimate criminalisation, I believe, is wrongfulness together with an important, amorphous set of potential defeating conditions. They themselves accept such a picture so far as paternalism is concerned. I conclude that their account, which I think has considerable force, would lose little of any significance were their Harm and Offence Principles simply excised. More generally I suspect that a strong role for wrongfulness in an account of legitimate criminalisation is likely to put into serious question the plausibility of an independent principled role for harm and offence. (shrink)

In this paper I look at various ways that interpersonal and social relations can be seen as required for autonomy. I then consider cases where those dynamics might play out or not in potentially paternalistic situations. In particular, I consider cases of especially vulnerable persons who are attempting to reconstruct a sense of practical identity required for their autonomy and need the potential paternalist’s aid in doing so. I then draw out the implications for standard liberal principles of paternalism, (...) specifically in clinical or therapeutic situations. The picture of potential paternalism that emerges here is much more of a dynamic, interpersonal scenario rather than a case of two separate individuals making decisions independent of each other. (shrink)

One of the overriding interests of the literature on health care economics is to discover where personal choice in market economies end and corrective government intervention should begin. Our study addresses this question in the context of John Stuart Mill’s utilitarian principle of harm. Our primary objective is to determine whether public policy interventions concerning more than 35,000 online pharmacies worldwide are necessary and efficient compared to traditional market-oriented approaches. Secondly, we seek to determine whether government interference could enhance (...) personal utility maximization, despite its direct and indirect costs on medical e-commerce. This study finds that containing the negative externalities of medical e-commerce provides the most compelling raison d’etre of government interference. It asserts that autonomy and paternalism need not be mutually exclusive, despite their direct and indirect consequences on individual choice and decision-making processes. Valuable insights derived from Mill’s principle should enrich theory-building in health care economics and policy. (shrink)

Typically the justification of criminal statutes is based on "liberty-limiting principles" -- e.g., the Harm Principle, the Offense Principle, Legal Paternalism, Legal Moralism, etc. Two philosophers of the criminal law, however -- Richard J. Arneson and Cass R. Sunstein -- take an entirely different tack. Both countenance the use of the criminal law to foreclose one's future options, seeking to preserve one's "true self" from the temptations of one's baser desires. (For reasons which become clear, I call this (...) "community self-paternalism".) In this paper, I take a careful look at "community self paternalism"; scrutiny reveals that this proposed justification of criminalization is quite different from its initial appearance. Revealing its true character dispels much of its initial appeal. I then argue for its rejection; of necessity, "community self-paternalism" treats some individuals as means merely, and not as ends in themselves. (shrink)

This chapter contains sections titled: The Case for Restricting the Civil Liberties of the Cognitively Disabled Two Conceptions of Competence Further Topics Editor's Note.