Living in an era of technological innovations, we must understand and trust them to benefit from these new technologies. In this context, paternalism is renewed as the so-called “soft-” or “Libertarian paternalism”. How can we face it and ensure freedom in the vortex of wellmeaning advice and persuasion? This paper will discuss 1. the characteristics of freedom since the 18th century from the perspective of the Enlightenment discourse in Germany by Mendelssohn and Kant, 2. the conditions for (...) freedom in the contemporary age of accelerating technological innovation, and 3. from trans-modernism, rethinking the dichotomy between otherness and autonomy, coercion and freedom, by the idea of 融通無碍 Yuzu-Muge, tactfulness in 華厳学 Hua-Yan Philosophy. (shrink)

Many philosophers distinguish between "hard" paternalism, which supposedly violates autonomy, and "soft" paternalism, which does not. This chapter begins by critically assessing Joel Feinberg's account of the distinction, according to which hard paternalism interferes with voluntary self-regarding choices while soft paternalism interferes with substantially nonvoluntary self-regarding choices. It then considers several other ways to draw the hard/soft distinction. Ultimately, the chapter concludes that although the hard/soft distinction is a crucially important component of (...) most antipaternalist views, it is surprisingly difficult to draw in a satisfying way. (shrink)

Legal restrictions of the right to self-determination increasingly pretend to be compatible with the liberal concept of autonomy: they act upon a ‘soft’ or autonomy-orientated paternalistic rationale. Conventional liberal critique of paternalism turns out to be insensitive to the intricate normative problems following from ‘soft’ or ‘libertarian’ paternalism. In fact, these autonomy-oriented forms of paternalism could actually be even more problematic and may infringe liberty rights even more intensely than hard paternalistic regulation. This paper contributes (...) to the systematic differentiation of soft and hard paternalism by discussing the (legal) concept of autonomy and elaborates the moral and legal limits of autonomy-orientated paternalism. (shrink)

My thanks to Professors Hawkins and Szmukler for their thoughtful commentaries; I am particularly glad to see these scholars' valuable expertise directed toward what raises pressing issues not only for psychiatry but for contemporary society.Prof. Hawkins reasons that the use of forced feeding with some anorexia is justified, while emphasizing that this will occur rarely. She and I are in agreement that a mere handful of cases may be affected by our debate, since anecdotal evidence from clinical settings as well (...) as the studies Hawkins cites suggest that forced feeding will often be contraindicated. Still, the matter can equally well be cast hypothetically, as I implied in my earlier discussion. If forced feeding... (shrink)

According to rational will views of paternalism, the wrongmaking feature of paternalism is that paternalists disregard or fail to respect the rational will of the paternalized, in effect substituting their own presumably superior judgments about what ends the paternalized ought to pursue or how they ought to pursue them. Here I defend a version of the rational will view appealing to three rational powers that constitute rational agency, which I call recognition, discrimination, and satisfaction. By appealing to these (...) powers, my version of the rational will view can rank the wrongfulness of paternalistic acts in terms of the extent to which such acts (a) amount to supplanting the paternalized individual’s identity as a rational agent with that of the paternalist, and (b) the degree of mistrust the paternalistic act shows in the paternalized individual’s rational agency. My rational powers account thus provides a more complete account of why paternalism is a powerful, but not decisive or absolute, objection to an act or policy. My rational powers account also provides powerful explanations of why rational suasion deflects charges of paternalism; why consenting to intercessions in one’s rational agency negates paternalism; why we ordinarily believe that strong paternalism is more objectionable than weak paternalism; and why we ordinarily believe that hard paternalism is more objectionable than soft paternalism. (shrink)

Most anti-paternalists claim that informed and competent self-regarding choices are protected by autonomy, while ill-informed or impaired self-regarding choices are not. Joel Feinberg, among many others, argues that we can in this way distinguish impermissible “hard” paternalism from permissible “soft” paternalism. I argue that this view confronts two related problems in its treatment of ill-informed decision-makers. First, it faces a dilemma when applied to decision-makers who are responsible for their ignorance: it either permits too much, or else (...) too little, intervention to satisfy its proponents. Second, the most promising rationales in favor of the view ignore the distinction between an agent’s voluntarily bringing about some state of affairs, on the one hand, and an agent’s voluntarily assuming a risk, on the other. I conclude that a decision-maker’s ignorance is irrelevant to the permissibility of intervention on her behalf. If it is permissible to intervene in a given ill-informed choice, it would be permissible to intervene in an otherwise similar but informed choice, at least provided that intervention would produce similar benefits in both cases. This shows that we should sometimes accept straightforwardly paternalistic rationales. (shrink)

Erik Malmqvist defends the prohibition on kidney sales as a justifiable measure to protect individuals from harms they have not autonomously chosen. This appeal to ‘group soft paternalism’ requires that three conditions be met. It must be shown that some vendors will be harmed, that some will be subject to undue pressure to vend, and that we cannot feasibly distinguish between the autonomous and the non-autonomous. I argue that Malmqvist fails to demonstrate that any of these conditions are (...) likely to obtain. His argument involves two common errors. First, he, like many, proceeds on a mistaken understanding of how to assess harm. What matters is not the balance of costs and benefits of vending, but a comparison of potential vendors’ welfare across two possible courses of action. Second, Malmqvist's concerns about third-party pressure are predicated on an empirically unrealistic understanding of the operation of a regulated market. A widely underappreciated fact is that kidney sales will be relatively rare, and most who try to vend will be unable to. Because pressure on another to vend will not result in the desired outcome, few will exert it. (shrink)

The ethical standards that regulate clinical research have multiple rationales. Among them is the need to protect potential subjects from making imprudent decisions, which extends beyond the soft paternalistic concern to protect people from making uninformed decisions to participate in trials. This article argues that a plausible risk/benefit restriction on clinical trials is presumptively justified by hard paternalism, which in turn is supported by a deeper fairness-based rationale. This presumptive case for hard paternalism in research is not (...) defeated by the alleged right to participate in clinical trials, by concerns about insult or status, by the need to conduct early phase trials that promise little to no benefit to participants, or by the recognition that some potential subjects are altruistically motivated. (shrink)

Erik Malmqvist defends the prohibition on kidney sales as a justifiable measure to protect individuals from harms they have not autonomously chosen. This appeal to ‘group soft paternalism’ requires that three conditions be met. It must be shown that some vendors will be harmed, that some will be subject to undue pressure to vend, and that we cannot feasibly distinguish between the autonomous and the non-autonomous. I argue that Malmqvist fails to demonstrate that any of these conditions are (...) likely to obtain. His argument involves two common errors. First, he, like many, proceeds on a mistaken understanding of how to assess harm. What matters is not the balance of costs and benefits of vending, but a comparison of potential vendors’ welfare across two possible courses of action. Second, Malmqvist's concerns about third-party pressure are predicated on an empirically unrealistic understanding of the operation of a regulated market. A widely underappreciated fact is that kidney sales will be relatively rare, and most who try to vend will be unable to. Because pressure on another to vend will not result in the desired outcome, few will exert it. (shrink)

Cases of paternalism usually involve disagreement between the paternalist and the paternalized subject. But not all the disagreements that give rise to paternalism are of the same kind and, as a result, not all instances of paternalism are morally on a par. There is, in other words, a moral difference between different kinds of paternalism, which can be explained in terms of the nature of the disagreements that give rise to the paternalism in the first (...) place. This paper offers a novel account of how to characterize the nature of these disagreements such that we can explain this moral difference. (shrink)

I argue that libertarian paternalism is in fact paternalism, or hard paternalism, rather than a form of soft paternalism. I do so on the basis of an analysis of the paternalist act according to which the paternalist act needn’t violate the will of the agent who is the target of that act and the paternalist actor need only suspect that her action may improve the welfare of that target. The paper considers and rejects interpretations of (...) libertarian paternalism as soft paternalism. I then provide an outline as to how libertarian paternalism may be reformed in light of the finding that current libertarian paternalism is hard paternalism. The proposal is to require that the enactment of libertarian paternalist policies be conditional on opinion polling indicating support for those policies from the agents they target. (shrink)

Sarah Conly defends paternalistic public health policies, such as New York City’s soft drink ban, on the grounds that they promote values that people accept but have difficulty realizing, owing to their cognitive biases. In this commentary, I criticize Conly’s defense of the soft drink ban and offer my own view of the justification for paternalistic food and beverage policies. I propose that paternalistic government restrictions on food and beverage choices should address a significant health problem pertaining to (...) a specific type or class of food or beverage. There should also be substantial evidence that the restrictions are likely to be effective at dealing with the problem and that alternative ways of dealing with it, which do not involve coercion, are likely to be ineffective. (shrink)

In 1989, the Cold War abruptly ended and it seemed as if the world was at last safe for democracy. But a spirit of uneasiness, discontent, and world-weariness soon arose and has persisted in Europe, in America, and elsewhere for two decades. To discern the meaning of this malaise we must investigate the nature of liberal democracy, says the author of this provocative book, and he undertakes to do so through a detailed investigation of the thinking of Montesquieu, Rousseau, and (...) Tocqueville. Paul A. Rahe argues that these political thinkers anticipated the modern liberal republic's propensity to drift in the direction of “soft despotism”—a condition that arises within a democracy when paternalistic state power expands and gradually undermines the spirit of self-government. Such an eventuality, feared by Tocqueville in the nineteenth century, has now become a reality throughout the European Union, Canada, Australia, New Zealand, and the United States. So Rahe asserts, and he explains what must be done to reverse this unfortunate trend. (shrink)

I introduce a new distinction between two types of paternalism, which I call ‘internal’ and ‘external’ paternalism. The distinction pertains to the question of whether the paternalized subject’s current evaluative judgments are mistaken relative to a standard of correctness that is internal to her evaluative point of view—which includes her ‘true’ or ‘ideal’ self—as opposed to one that is wholly external. I argue that this distinction has important implications for (a) the distinction between weak and strong paternalism; (...) (b) the distinction between soft and hard paternalism; and (c) medical practice, where internal paternalism can, and probably often does, occur. (shrink)

In this article we examine Classical Confucian political thinking through the lens of paternalism. We situate Confucianism amid contemporary models of paternalism to show that Confucianism can be understood as a soft form of paternalism regarding its method. Confucianism stresses cultivation of the people by moral exemplars to guide the people to act in ways that are in their own best interests. This is in contrast to use of law and punishment as a deterrent of unwanted (...) behaviours of the people. We demonstrate that Confucian paternalism does not advocate for a static top-down structure of governance that is incapable of reform, underscoring its non-authoritarian ideal. We do this by stressing the vital upward momentum constituted in general cultivation of the wider population utilizing li. The picture that emerges from an examination of Confucian political thought through the lens of paternalism is what we name “exemplary paternalism.”. (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)

BackgroundWe aim to further develop an index for detecting disguised paternalism, which might influence physicians’ evaluations of whether or not a patient is decision-competent at the end of life. Disguised paternalism can be actualized when physicians transform hard paternalism into soft paternalism by questioning the patient’s decision-making competence. MethodsA previously presented index, based on a cross-sectional study, was further developed to make it possible to distinguish between high and low degrees of disguised paternalism using (...) the average index of the whole sample. We recalculated the results from a 2007 study for comparison to a new study conducted in 2020. Both studies are about physicians’ attitudes towards, and arguments for or against, physician-assisted suicide. ResultsThe 2020 study showed that geriatricians, palliativists, and middle-aged physicians (46–60 years old) had indices indicating disguised paternalism, in contrast with the results from the 2007 study, which showed that all specialties (apart from GPs and surgeons) had indices indicating high degrees of disguised paternalism.ConclusionsThe proposed index for identifying disguised paternalism reflects the attitude of a group towards physician assisted suicide. The indices make it possible to compare the various medical specialties and age groups from the 2007 study with the 2020 study. Because disguised paternalism might have clinical consequences for the rights of competent patients to participate in decision-making, it is important to reveal disguised hard paternalism, which could masquerade as soft paternalism and thereby manifest in practice. Methods for improving measures of disguised paternalism are worthy of further development. (shrink)

This paper analyses J.S. Mill's theory on the relationships between individual autonomy and State powers. It will be argued that there is a significant discrepancy between Mill's general liberal statements aimed to secure individual largest possible autonomy and the specific examples which provide the government with quite wide latitude for interference in the public and private spheres. The paper outlines the boundaries of government interference in the Millian theory. Subsequently it describes Mill's elastic paternalism designed to prevent people from (...) inflicting harm upon others as well as upon themselves, from soft paternalism on issues like compulsory education to hard paternalism on very private matters such as marriage, having children, and divorce by consent. (shrink)

Some disability rights (DR) advocates oppose physician-assisted suicide (PAS) laws like Oregon’s on the grounds that they reflect ableist prejudice: how else can their limit on PAS eligibility to the terminally ill be explained? The paper answers this DR objection. It concedes that the limit in question cannot be defended on soft paternalist grounds, and offers a hard paternalist defense of it. The DR objection makes two mistakes: it overlooks the possibility of a hard paternalist defense of the limit, (...) and it confuses terminal illness, which is at best one type of disability, with disability itself. (shrink)

The use of tanning beds has been identified as being among the most significant causes of melanoma and non-melanoma skin cancer. Accordingly, the activity is properly seen as one that involves profound harm to self. The article examines paternalistic reasons for restricting sunbed usage. We argue that both so-called soft and hard paternalistic arguments support prohibiting the use of sunbeds. We make the following three arguments: an argument from oppressive patterns of socialization suggesting that the autonomous nature of the (...) conduct in question is questionable; an argument from so-called evaluative delusions in which individuals attach incorrect weights to some of their values; a strictly hard paternalistic argument appealing to the harm in itself pertaining to the use of sunbeds. (shrink)

Proponents of permitting living kidney sales often argue as follows. Many jobs involve significant risks; people are and should be free to take these risks in exchange for money; the risks involved in giving up a kidney are no greater than the risks involved in acceptable hazardous jobs; so people should be free to give up a kidney for money, too. This paper examines this frequently invoked but rarely analysed analogy. Two objections are raised. First, it is far from clear (...) that kidney sales and dangerous jobs involve comparable risks on an appropriately broad comparison. Second, and more importantly, even if they do involve comparable risks it does not follow that kidney sales must be permitted because dangerous jobs are. The analogy assumes that kidney sales are banned for paternalistic reasons. But there may be other, non-paternalistic reasons for the ban. And paternalists, too, can consistently defend the ban even if kidney sales are no riskier than occupations that they find acceptable. Soft paternalists may want to protect would-be vendors from harms that they have not voluntarily chosen. Egalitarian hard paternalists may want to protect already badly off vendors from further worsening their situation. For neither species of paternalist is the size of the risk prevented decisive. I conclude that the analogy with dangerous jobs, while rhetorically powerful, pulls little real argumentative weight. Future debates on living kidney sales should therefore proceed without it. (shrink)

This chapter analyses the behavioural economist Matthew Rabin's work on biases in decision-making. Rabin argues that these biases cause self-harm and that we should tax individuals to ensure that they do not give in to these biases. The chapter's core question is whether there is a soft-paternalistic justification for these taxes. The answer is nuanced. It argues that Rabin’s description of these biases as “irrational” is not always appropriate—sometimes, for example, they are merely a form of preference change. When (...) they are due to the latter, the behaviour is fully voluntary, and there exists no soft-paternalistic justification for coercive intervention. It also argues that even when these biases do lead to substantially non-voluntary choices, we should prefer policies that improve self-knowledge and self-control to taxes. However, the paper notes that Rabin’s analysis reveals circumstances under which these autonomy-enhancing strategies will not be effective. In such cases, and only in such cases, Rabin’s taxes have a soft paternalistic justification. (shrink)

What I call ‘the standard view’ claims that IRBs should not regard financial payment as a benefit to subjects for the purpose of risk/benefit assessment. Although the standard view is universally accepted, there is little defense of that view in the canonical documents of research ethics or the scholarly literature. This paper claims that insofar as IRBs should be concerned with the interests and autonomy of research subjects, they should reject the standard view and adopt ‘the incorporation view.’ The incorporation (...) view is more consistent with the underlying soft-paternalist justification for risk-benefit assessment and demonstrates respect for the autonomy of prospective subjects. Adoption of the standard view precludes protocols that advance the interests of subjects, investigators, and society. After considering several objections to the argument, I consider several arguments for the standard view that do not appeal to the interests and autonomy of research subjects. (shrink)

When are we morally obligated as a society to help the homeless, and is coercive interference justified when help is not asked for, even refused? To answer this question, we propose a comprehensive taxonomy of different types of homelessness and argue that different levels of autonomy allow for interventions with varying degrees of pressure to accept help. There are only two categories, however, where paternalism proper is allowed, be it heavily qualified. The first case is the homeless person with (...) severely diminished autonomy as a result of mental illness, and the second case is the homeless person who runs a risk of serious and imminent harm to self. In the first case, namely, that of soft paternalism, we argue that coercive intervention in the case of a refusal to accept help should be focused on the provision of housing that meets basic needs—needs that we outline in the article. In the case of imminent and severe harm to self, the case of hard paternalism, we argue that forced intervention can only be allowed if it is temporary and local, namely focused on getting someone out of harm’s way. (shrink)

When new drugs are approved by the Food and Drug Administration, the default assumption is that they will be available by prescription only, safe for use exclusively under clinical supervision. The paternalism underlying this default must be interrogated in order to ensure appropriate respect for patient autonomy. Upon closer inspection, prescription requirements are justified when nonprescription status would risk harm to third parties and when a large segment of the population would struggle to exercise their autonomy in using a (...) drug safely and effectively on their own. Although these justifications can support prescription status for many drugs, we propose that reversing the FDA's current default to instead begin with a presumption in favor of over‐the‐counter status is the best way to avoid interference with valid claims of patient autonomy. Under this approach, a range of drug products could be considered for an OTC switch, including oral contraceptives, statins, and HIV‐prevention drugs. (shrink)

This chapter discusses (in German) John Stuart Mill's position on paternalism and how it relates to his book 'The Subjection of Women'. It is argued that Mill's claim (in On Liberty) that one should not be allowed to sell oneself into slavery is making reference to the Victorian marriage contract through which women essentially become slaves of their husbands. As argued in Subjection, women do not freely develop the desire to get married, the social circumstances do not leave them (...) any other options. Necessarily unaware of what married life is like, the decision to get married is like crossing an unsafe bridge without knowing it is unsafe. It is not paternalist, as Mill argues, to alert them to the condition of the bridge and put them in the position to decide for themselves whether they want to cross it (or turn back half way, e.g. by divorcing). (shrink)

On the standard view we assess a person’s competence by considering her relevant abilities without reference to the actual decision she is about to make. If she is deemed to satisfy certain threshold conditions of competence, it is still an open question whether her decision could ever be overruled on account of its harmful consequences for her (‘hard paternalism’). In practice, however, one normally uses a variable, risk dependent conception of competence, which really means that in considering whether or (...) not to respect a person’s decision-making authority we weigh her decision on several relevant dimensions at the same time: its harmful consequences, its importance in terms of the person’s own relevant values, the infringement of her autonomy involved in overruling it, and her decision-making abilities. I argue that we should openly recognize the multi-dimensional nature of this judgment. This implies rejecting both the threshold conception of competence and the categorical distinction between hard and soft paternalism. (shrink)

This paper presents four arguments in favour of respecting Ulysses Contracts in the case of individuals who suffer with severe chronic episodic mental illnesses, and who have experienced spiralling and relapse before. First, competence comes in degrees. As such, even if a person meets the usual standard for competence at the point when they wish to refuse treatment, they may still be less competent than they were when they signed the Ulysses Contract. As such, even if competent at time 1 (...) and time 2, there can still be a disparity between the levels of competence at each time. Second, Ulysses Contracts are important to protect people’s most meaningful concerns. Third, on the approach defended, the restrictions to people’s liberty would be temporary, and would be consistent with soft paternalism, rather than hard paternalism: the contracts would be designed in such a way that individuals would be free to change their minds, and to change or cancel their Ulysses Contracts later. Finally, even if one rejects the equivalence thesis, this is still consistent with the claim that, in particular cases, it can be as wrong to allow a harm as to do a harm. Nevertheless, controversies remain. This paper also highlights several safeguards to minimise risks. Ultimately, we argue that people who are vulnerable to spiralling deserve a way to protect their autonomy as far as possible, using Ulysses Contracts when necessary. (shrink)

Does respect for autonomy imply respect for precedent autonomy? The principle of respect for autonomy requires us to respect a competent patient’s treatment preference, but not everyone agrees that it requires us to respect preferences formed earlier by a now‐incapacitated patient, such as those expressed in an advance directive. The concept of precedent autonomy, which concerns just such preferences, is problematic because it is not clear that we can still attribute to a now‐incapacitated patient a preference which that patient never (...) disaffirmed but can no longer understand. If we cannot make that attribution, then perhaps we should not respect precedent autonomy – after all, how can you respect patient autonomy by giving patients what they no longer want, even if they never disaffirmed those wants? I argue that whether an earlier preference can still be attributed to a now‐incapacitated patient depends on the reasons behind the preference, for a preference includes (and is not merely supported by) the reasons behind it. When the considerations that served as reasons no longer exist, neither does the preference which included those reasons. In particular, if the considerations that served as reasons for the patient exist only under conditions where the patient retains full mental capacity, then once that capacity is lost, so are those reasons and the preference based upon them. I use this analysis of precedent autonomy to ascertain the merits of various approaches to advance medical decisionmaking, including Nancy Rhoden’s approach, approaches based on a Parfitian personal identity analysis, approaches based on soft paternalism, and approaches based on the stability and longevity of preferences. Despite the apparent absurdity of respecting patient autonomy by giving patients what they no longer prefer but have never disaffirmed, I conclude with some programmatic remarks on when and why respect for (precedent) autonomy nonetheless requires us to respect former preferences. (shrink)

ABSTRACT This paper compares two alternative answers to the question ?Who is the addressee of welfare economics?? These answers correspond with different understandings of the status of the normative conclusions of welfare economics and have different implications for how welfare economics should be adapted in the light of the findings of behavioural economics. The conventional welfarist answer is that welfare economics is addressed to a ?social planner?, whose objective is to maximize the overall well-being of society; the planner is imagined (...) as a benevolent despot, receptive to the economist's advice. The alternative contractarian answer is that welfare economics is addressed to individuals who are seeking mutually beneficial agreements; a contractarian recommendation has the form ?It is in the interests of each of you separately that all of you together agree to do x?. Each of these answers should be understood as a literary convention that uses a highly simplified model of politics. I defend the contractarian approach and show that it is less supportive of ?soft paternalism? than is the welfarist approach. (shrink)

An axiom of medical research ethics is that a protocol is moral only if it has a “favorable risk-benefit ratio”. This axiom is usually interpreted in the following way: a medical research protocol is moral only if it has a positive expected value -- that is, if it is likely to do more good (to both subjects and society) than harm. I argue that, thus interpreted, the axiom has two problems. First, it is unusable, because it requires us to know (...) more about the potential outcomes of research than we ever could. Second, it is false, because it conflicts with the so-called “soft paternalist” principles of liberal democracy. In place of this flawed rule I propose a new way of making risk-benefit assessments, one that does comport with the principles of liberalism. I argue that a protocol is moral only if it would be entered into by competent subjects who are informed about the protocol. The new rule this eschews all pseudo-utilitarian calculation about the protocol’s likely harms and benefits. (shrink)

Disability rights (DR) advocates have consistently opposed the legalization of physician-assisted dying (PAD) on the grounds that it wrongly discriminates against the disabled. This chapter distinguishes three variants of this objection. The first and perhaps primary one, based on “soft paternalism,” claims that PAD should not be legalized for the sake of those who might choose it. The second alleges that the laws harm all disabled people by encouraging support for PAD as the cheaper alternative to providing the (...) disabled more social support and protection from discrimination. The third alleges that legalized PAD harms all disabled people by expressing the denigrating message that their lives are less valuable than those of the able. The chapter finds that whatever the merits of the first two objections, DR advocates cannot consistently accept them while maintaining support for a legal right to reject unwanted treatment. It also finds grounds to doubt the cogency of the third objection. (shrink)

The view from inside improves our understanding on market failure and regulation failure in financial market. The EMH fails to understand the causes of financial bubbles and crashes. Behavioral finance introduces insight from psychology. The heuristic and biases approach studied behavioral asymmetry in static environment that leads to market irrationality and information distortion. The fast and frugal thinking in decision-making further explore more complex situation under changing environment. They argue that soft-paternalistic regulation is needed under information overload. The most (...) critical issue is information uncertainty and complexity. Lacking information in frequency domain is the main barrier in managing business cycles. Data form inside reveals current limitations of financial data mainly in the short-term price changes. Microstructure studies show that pricing process is shaped by trading rules. Quantitative analysis reveals severe instability in high frequency trading and derivative market. Feasible regulation should aim to encourage new technology and sustainable growth, rather than protect obsolete technology and short-term speculation. The most fundamental challenge to sustainable economic order is the excessive size of the derivative markets that crowding out investment in real economy. This is a more severe issue than the climate change. (shrink)

The concept of dignity has occasioned a robust conversation in recent healthcare scholarship. When viewed as a whole, research on dignity in healthcare has engaged each of the four bioethical principles popularized by Beauchamp and Childress, but has paid the least attention to beneficence. In this paper, we look at dignity and beneficence. We focus on the dignity promotion component of a model of dignity derived from a grounded theory study. After describing the study and presenting a précis of the (...) resulting model, we review the principle of beneficence and look at the ways in which the notion of dignity promotion can be used to complement our understanding of this principle. Specifically, we explore what we can learn from dignity promotion about the relational nature of beneficence in healthcare and how dignity promotion can be marshaled to help address the epistemological quandary of soft paternalism. (shrink)

Critics frequently argue that nudges are more covert, less transparent, and more difficult to monitor than traditional regulatory tools. Edward Glaeser, for example, argues that “[p]ublic monitoring of soft paternalism is much more difficult than public monitoring of hard paternalism”. As one of the leading proponents of soft paternalism, Cass Sunstein, acknowledges, while “[m]andates and commands are highly visible”, soft paternalism, “and some nudges in particular[,] may be invisible”. In response to this challenge, (...) proponents of nudging argue that invisibility for any given individual in a particular choice environment is compatible with “careful public scrutiny” of the nudge. This paper offers the first of its kind experimental evidence that tests whether nudges are, in fact, compatible with “careful public scrutiny”. Using three sets of experiments, the paper argues that, even when entirely visible, nudges attract less scrutiny than their “hard law” counterparts. (shrink)

Incidental findings and secondary findings, being results that are unrelated to the diagnostic question, are the subject of an important debate in the practice of clinical genomic medicine. Arguments for reporting these results or not doing so typically relate to the principles of autonomy, non-maleficence and beneficence. However, these principles frequently conflict and are insufficient by themselves to come to a conclusion. This study investigates empirically how ethical principles are considered when actually reporting IFs or SFs and how value conflicts (...) are weighed. A qualitative focus group study has been undertaken, including a multidisciplinary group of professionals from Belgian centres for medical genetics. The data were analysed thematically. All eight Belgian centres participated in this study. Ethical values were frequently referred to for disclosure policies on IFs and SFs. Participants invoked respect for patient autonomy to support the disclosure of IFs and opt-out options for IFs and SFs, non-maleficence for the professional delineation of reportable IFs and opt-out options for IFs and SFs and beneficence for the mandatory reporting of actionable IFs, the delineation of reportable IFs and a current decline of actively pursued SFs. Professional assumptions about patients’ genetic literacy were an important factor in the weighing of values. In line with the traditional bioethical discourse, the mandatory reporting of actionable IFs might be interpreted as a “technological, soft paternalism”. Restricting patients’ choices might be acceptable, but then its motives should be valid and its beneficent outcomes highly plausible. Hence, the presuppositions of technological, soft paternalism - patients’ inability to make informed decisions, normative rationality, the efficacy of beneficent outcomes and the delineated spectrum of beneficence - should be approached critically. Moreover, distributive justice should be considered an important value in the delineation of the current scope of the ethical debate on IFs and SFs. This study of guiding values may stimulate the debate on the ethical grounds for a solid policy on IFs and SFs internationally. (shrink)

The US federal research regulations prohibit informed consent, whether written or oral, from including provisions in which human subjects waive or appear to waive legal rights. We argue that policies that prevent human subjects from waiving legal rights in research can be ethically justified under the rationale of group, soft paternalism. These policies protect competent adults from making adverse decisions about health and legal matters that they may not understand fully. However, this rationale is less defensible if there (...) is a comprehensive compensation for injury programme available in which subjects are asked to waive some legal rights in order to participate in the programme. In this situation, subjects should be allowed to waive some legal rights to obtain the benefits of the programme. (shrink)

The theme of this issue of Ethical Perspectives is the French tradition in liberal thought, and the unique contribution that this tradition can make to debates in contemporary liberalism. It is inspired by a colloquium held at the Katholieke Universiteit Leuven in December of 2008 entitled “In Search of a Lost Liberalism: Constant, Tocqueville, and the singularity of French Liberalism.” This colloquium was held in conjunction with the retirement of Leuven professor and former Dean of the Institute of Philosophy, André (...) Van de Putte, who found much inspiration in this tradition. A revised version of his valedictory lecture from the conference serves as the final contribution to this issue. Much contemporary liberal political philosophy is currently done in conversation with a line of liberal thinkers starting with John Locke, running through Immanuel Kant and John Stuart Mill, and culminating in the work of John Rawls and his followers. The reasons for the enormous appeal of this philosophical tradition are, among other things, the combination of the central role of the intuitively appealing value of individual liberty with a strong rationalistic, universalistic, and normative character. The thread running through most of these liberal theories is a commitment to what the French liberal Benjamin Constant referred to as “the liberty of the moderns,” that is, liberty in a negative sense, as a lack of interference in one’s activity from others and from government. This focus has expanded over time to include a richer body of civil, political, social, economic and cultural rights, for instance, in the work of liberal thinkers who have tried to integrate the insights of communitarian thought and discourse ethics in their work. However, the emphasis on individual liberty in the negative sense continues to be the normative and theoretical touchstone and default position for many contemporary liberal theories. The limitation of the canon of liberal thought to the aforementioned authors and themes deprives the contemporary debate of a rich source of ideas: the French liberal tradition. Montesquieu, considered to be the father of this tradition, provides a good example of how it can enrich current debates in liberal theory. Montesquieu’s work evinces a keen eye for the dynamics of power relations and the limitations of the power of the better rational argument. His insight that power can sometimes only be checked by an equal and opposing power, so that a system of separation and balance of powers is necessary in order to preserve liberty, is reflected in the foundations of most modern democracies. Montesquieu also argues that contingent environmental, historical, social and economic conditions play a dramatic role in determining what kind of government is appropriate for a particular society. On his view, ignoring these facts when framing a government can inadvertently end in despotism. Montesquieu’s observations challenge us to reexamine some of contemporary liberalism’s universalist and rationalist claims. Benjamin Constant is most famous for his distinction between two kinds of liberty: the liberty of the ancients and the liberty of the moderns. The ancient form of liberty manifested itself in the active political participation of citizens in the ancient republic. While this form of government and decision-making was suitable for small, homogeneous city-states, Constant argues that it is impracticable for large modern nation-states. Hence, the concept of modern liberty shifts to an emphasis on the rule of law and the non-interference of the state in private matters. This form of liberty is familiar to us from contemporary liberalism – and Constant cherishes this form of freedom as much as any liberal does today. However, his position is complex: he also argues that the liberty of the ancients should not be neglected. Active political participation is needed to ensure that the government is executing its duty of preserving the modern form of liberty by publicly pointing out violations. The contemporary relevance of Constant’s work is clear when we consider the alleged “democratic deficit” that plagues the EU and international institutions such as the UN, the IMF, and the World Bank. Not only does this democratic deficit threaten the modern form of liberty by placing decision-making processes out of sight of the people, it also threatens citizens’ sense of self-respect derived from self-governance. Constant’s argument for the necessity of combining the liberty of the ancients with that of the moderns provides a fruitful resource for confronting these contemporary issues. Tocqueville’s work on liberalism benefits from his opportunity to observe a society founded on liberal democratic principles – the United States of America – in action. In his Democracy in America, he examines the social consequences, both intended and unintended, of building a society on ‘the equality of conditions’, as he defines ‘democracy’. Tocqueville sees a tension between the democratic value of equality and the aristocratic value of the rule of the best. He observes that democratic societies do not necessarily choose the best leaders and instead promote mediocrity instead of virtue, talent, and excellence. Democracy also confronts citizens with the threat of ‘soft despotism’, where a government that preserves the outer signs of the liberty of the moderns nevertheless controls the behavior of its citizens in minute detail through a system of detailed rules ostensibly aimed at their welfare. This paternalism is an even more insidious threat to liberal values than the hard variety of despotism, since it is so difficult to detect and done in the name of liberal values themselves. Taking Tocqueville’s observations seriously would add complexity to attempts to theorize about the modern social-democratic welfare state. The contributions to this issue supplement and critique mainstream liberal thought and its relation to contemporary issues through a serious engagement with the French liberal tradition. Annelien De Dijn’s contribution discusses Bertrand de Jouvenel, a lesser-known 20th Century representative of the French political tradition she terms ‘aristocratic liberalism’. This tradition has its roots in the work of Montesquieu, and emphasizes the importance of intermediary bodies, most importantly the aristocracy, in providing a check to the top-down power of despotic state authorities and the bottom-up power of revolutionary leveling tendencies, both of which threaten liberty. De Dijn situates Jouvenel in this tradition, but then indicates an important difference between his thought and that of his predecessors: his most significant work, On Power, is not only on French history, but on European history. Pointing to the enthusiastic reception of this work in the Anglophone world, she suggests that the rise of totalitarianism in Europe gave the anti-totalitarian features of aristocratic liberalism a broader appeal. Valentino Lumowa’s paper concerns Constant’s classic text, The Liberty of the Ancients Compared with that of the Moderns. Lumowa argues that in order to understand Constant’s piece, we must be aware that its two parts were written under different historical circumstances and decipher the argumentative thrust inherent in the text. Following Stephen Holmes, he argues that to understand the shift Constant made in the second part of the text, we should read it within the context of the increasing influence of the ultra-Royalists in the legislature during the Bourbon Restoration. However, in contrast to Holmes, he contends that the spirit of both civic and individual freedom, which enlivens representative system, is the backbone of the text in its unity. Demin Duan’s essay investigates an apparent ambivalence between liberal and imperialist tendencies in the work of Alexis de Tocqueville, which has already drawn some attention from Tocquevillian scholars. These interpretations of Tocqueville and his writings on empire generally agree that Tocqueville stands in a recognized tradition of liberalism, which is characterized by respect for human rights, individual freedom and a sense of universal humanism. On this standard view, Tocqueville’s support of imperialism represents nothing but an unfortunate breach of his own otherwise consistent liberal thinking. Duan’s article questions this standard position. By questioning the assumption of Tocqueville’s liberalism in the first place, he tries to gauge the influence of both the old republican tradition and the new liberal perspective on his thinking. In conclusion, he argues that Tocqueville’s overall thought, especially his notion of freedom, is very much informed by an old republican tradition. His support of French imperialism could be better understood from this perspective rather than be rendered simply as a deviation from liberal norms. Pawel Marczewski’s contribution is an attempt to show that Tocqueville’s conception of liberty transcends the divisions between negative and positive aspects of freedom. He begins by juxtaposing this conception with the opposition drawn by Constant between liberty of the ancients and liberty of the moderns. While Tocqueville and Constant shared a concern for the preservation of individual rights, Tocqueville was much more reluctant to accept the modern loss of the communal dimension of liberty. He did not accept the view that jouissances privées, private pleasures, are the main compensation that the modern world has to offer for the lost ancient treasure of political participation. The essay then looks into the relevance of Tocqueville’s standpoint for current debates between liberal defenders of negative freedom and republican advocates of freedom as non-domination. Participants on both sides of the debate seem to be so devoted to showing that their particular approach provides the best guarantees against actual and possible threats to liberty that they overlook the fact that their definitions of freedom remain significantly similar. By arguing that ‘to be free is to be guided by one’s own will’, contemporary republicans, as well as their liberal counterparts, move along the lines drawn by Constant towards private pleasures. By questioning the inevitability of this turn, Tocqueville provides us with a valuable contribution to these discussions in contemporary political philosophy. Finally, André Van de Putte’s contribution, an adaptation of his emeritus speech that closed the conference on French Liberalism, appeals to Tocqueville in order to draw attention to the importance of intermediary, dialogical bodies in mitigating the implicit despotic tendencies of the democratic drive to equality. In Tocqueville’s view, the transition from the feudal corporate inequality to democratic individual equality was not a clean break. Rather, this transition is a continual process of democratization that is driven by a desire for equality, or egalité des conditions. This dissolution of distinctions of estate, class and status has the unintended consequence of concentrating the diffuse power of these entities into a centralized state, which is responsible for ensuring the equality of all under the law. This process leaves increasingly isolated and atomized individuals to face the power of a monolithic state in defense of their freedom, and moves toward a soft, paternalistic despotism. Constant’s freedom of the moderns is not sufficient to protect individuals from this centralized power. Democracy also requires the political freedom of the ancients. Van de Putte argues for a system in which atomized individuals organize themselves into intermediary bodies that, in a Montesquieuian balance of powers, can enter into dialogue with each other and the state on more equitable terms. Van de Putte’s contribution closes with a plea for a conception of democracy as a regime of dialogue. (shrink)

Effective altruists aim to do the most good that they can do with the resources available to them, without causing themselves or their dependents significant harm thereby. The argument presented in this paper demonstrates that there are no morally relevant dissimilarities between living kidney donation and living kidney selling for effective altruistic reasons. Thus, since the former is allowed, the latter ought to be allowed as well. And, there are important moral differences between living kidney selling for effective altruistic reasons (...) and other reasons for kidney vending, such that standard objections against markets in human kidneys do not attach to those markets designed around principles of effective altruism. The reasonable conclusion to draw from this is that eligible effective altruist kidney donors ought to be allowed to sell their kidneys to others in need, if they so desire. Because of this, law and policy ought to be changed to allow for this exceptional case: current laws that ban kidney selling for everyone, irrespective of their reason for selling, are unjustified. (shrink)

Agro-ecological innovations aim at promoting sustainable agricultural practices that have long term benefits. However, farmers rarely adopt beneficial innovations in agro-ecology despite expressing an understanding of the benefits and a desire to do so. It has been argued that the farmers lack sufficient knowledge to implement complex innovations. We believe that in many cases such knowledge is necessary, but is ultimately insufficient for complex innovation adoption. We argue that in addition to knowledge and a desire to adopt an innovation, many (...) farmers require a collaborative relation with an ally. We call this method the Alliance Approach to innovation. This approach is modeled after the therapeutic Alliance Approach at work in cognitive and behavioral sciences. We argue that using the Alliance Approach will not only prove effective in helping farmers adopt complex agro-ecology innovations, but also a better fit for the human centered development of capability approach human development, as it is likely to enhance both the well-being and agency of the farmers. (shrink)

Healthy volunteers in biomedical research often face significant risks in studies that offer them no medical benefits. The U.S. federal research regulations and laws adopted by other countries place no limits on the risks that these participants face. In this essay, I argue that there should be some limits on the risks for biomedical research involving healthy volunteers. Limits on risk are necessary to protect human participants, institutions, and the scientific community from harm. With the exception of self-experimentation, limits on (...) research risks faced by healthy volunteers constitute a type of soft, impure paternalism because participants usually do not fully understand the risks they are taking. I consider some approaches to limiting research risks and propose that healthy volunteers in biomedical research should not be exposed to greater than a 1% chance of serious harm, such as death, permanent disability, or severe illness or injury. While this guideline would restrict research risks, the limits would not be so low that they would prevent investigators from conducting valuable research. They would, however, set a clear upper boundary for investigators and signal to the scientific community and the public that there are limits on the risks that healthy participants may face in research. This standard provides guidance for decisions made by oversight bodies, but it is not an absolute rule. Investigators can enroll healthy volunteers in studies involving a greater than 1% chance of serious harm if they show that the research addresses a compelling public health or social problem and that the risk of serious harm is only slightly more than 1%. The committee reviewing the research should use outside experts to assess these risks. (shrink)

Cardiff Law School, Museum Avenue, Cardiff CF10 3AX, UK. Tel: +44(0)2920875447, Fax: +44(0)2920874097; Email: Holms{at}cardiff.ac.uk ' + u + '@' + d + ' '//--> Abstract The paper presents a brief overview of current knowledge about (i) the link between parental behaviour and lifestyle and childhood obesity, (ii) the many other factors influencing overweight and obesity rates in children and (iii) the effectiveness of interventions in children who are already overweight and obese. On the basis of this, it is analysed (...) to what extent it is meaningful to attribute causal and moral responsibility to parents in theory and in practice. It is argued that although there is a sense in which many parents are causally and morally responsible for the obesity of their children, most parents are not blameworthy and the attribution of parental responsibility in most cases does not justify intervention in the family context by society on behalf of the children. In the analysis of the possible justification of more general interventions, parallels are drawn to the distinction between hard and soft forms of paternalism. Train up a child in the way he should go; and when he is old, he will not depart from it. (Proverbs 22: 6) For I have told him that I will judge his house for ever for the iniquity which he knoweth; because his sons made themselves vile, and he restrained them not. 1. (Samuel 3: 13) CiteULike Connotea Del.icio.us What's this? (shrink)

In Liberalism with Excellence, Matthew Kramer makes an argument for how excellence may enter in into liberalism, despite liberalism’s strong commitment to neutrality. Kramer seeks to challenge not only the uncompromising rejection of this position by liberals such a Jonathan Quong, but also the so-called “blended” approach of “soft-perfectionist” scholars such as Joseph Raz and George Sher. In this essay, I do not so much challenge Kramer’s approach as offer an alternative for accomplishing the same thing. Under my proposal, (...) certain forms of excellence and neutrality can both be accommodated as long as state support for the form of excellence at issue is proportional to the support for such a form of excellence within the relevant polity, competing forms of excellence are non-rivalrous, and no one is forced to embrace a form of excellence with which they disagree. My proposal is therefore not what Ronald Dworkin derogatively characterized as “a checkerboard solution.” Rather than allowing the state to support contrary moral positions at one and the same time, it is a solution that takes morally compatible but nevertheless competing conceptions of excellence seriously, and exhibits neutrality by giving them proportional rather than full support. This neither forces anyone to pursue the particular forms of excellence the state supports nor prevents them from pursuing some other form of excellence entirely or, if they wish, no form of excellence at all. (shrink)

Today, bioethics experts have an increasing role in public life. However, the question arises: what does bioethics expertise really mean? Can there be such a thing in our globalised world characterised by ethical pluralism? I will argue that bioethics as a discipline represents the transformation of ethics expertise from a hard to a soft form of it. Bioethics was born as a reaction to the growing awareness of ethical pluralism, and it denied the hard form of normative–prescriptive ethics expertise, (...) particularly in its medical ethics form. In contrast, the traditional medical ethics model, and pre-modern societies in general, believed in hard normative ethics expertise. From this followed the characteristic paternalism of traditional medical practice: if physicians were experts in moral matters as well, if they knew what the right course of action to choose was, then they had a right to benevolently force this course of action on their patients. The remnants of this doctrine, although rarely stated explicitly, still can often be seen in clinical practice. The whole bioethics movement can be seen as a radical denial of the doctrine of physician's hard expertise in moral matters. Bioethics, however, represents a type of soft ethics expertise. Hence follows the seeming paradox of bioethics expertise: bioethics is both a denial of ethics expertise as well as a type of ethics expertise. (shrink)

Over recent years, a number of behavioural economic-informed policy frameworks have been developed, ranging from soft and hard forms of paternalism, to regulation against negative externalities, the so-called nudge, shove and budge approaches. This article considers these different frameworks as applied to some of the challenges posed by the social care needs of contemporary societies. It is argued that all of the frameworks are worthy of serious consideration in this policy domain, in that they offer food for thought (...) on how financial contributions to pay for social care might be increased, and how the quality of social care provision may be improved given available resources. (shrink)

UK general practitioners (GPs) are self-employed entrepreneurs running small businesses with commercial considerations. In this situation there is no clear distinction between information, self-promotion and advertising. In response to the growing public demand for more information about medical services, the medical profession should voluntarily accept the notion of soft self-promotion in the form of 'notices' or 'announcements' placed in newspapers. Newspapers are the most effective way of giving easy access to information. The resistance to newspapers may be more concerned (...) with preserving certain medical traditions than consideration of the public interest. The General Medical Council's (GMC's) arguments against soft self-promotion are seen as misguided paternalism, inconsistent and irrational. (shrink)