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Risking One’s Life: ‘Soft Paternalism’ and Feinberg’s Account of Legal Liberalism

Published online by Cambridge University Press:  09 June 2015

Ian Hunt
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Extract

In his The Moral Limits of the Criminal Law: Harm To Self, one volume in what is arguably the most impressive and thorough statement of liberal political philosophy to date, Joel Feinberg claims that there is a problem of reconciling the reasonableness of our concern for people who endanger themselves with our repugnance for paternalism:

preventable personal harm (setback interest) is universally thought to be a great evil, and... such harm is no less harmful when self-caused... If society can substantially diminish the net amount of harm to interests from all sources, that would be a great social gain. If that prospect provides the moral basis underlying the harm to others principle, why should it not have application as well to self-caused harm and thus support equally the principle of legal paternalism?... On the other hand, we are challenged to reconcile, somehow, our legitimate concern with diminishing overall harm with the threatened proliferation of criminal prohibitions enforcing a “Spartan like regime” of imposed prudence

Type
Research Article
Information
Canadian Journal of Law & Jurisprudence , Volume 8 , Issue 2 , July 1995 , pp. 311 - 324
Copyright
Copyright © Canadian Journal of Law and Jurisprudence 1995

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References

For their helpful comments, I would like to thank Robert Young and the contributors to a discussion of an earlier version of this paper read at the annual Australasian Association of Philosophy Conference held in July 1994 at the Australian National University, Canberra

1. Feinberg, Joel The Moral Limits of the Criminal Law: Harm To Self (Oxford: Oxford University Press, 1986) at 25.Google Scholar

2. See Nozick, R. Anarchy State and Utopia (New York: Basic Books, 1974)ch. 3.Google Scholar

3. Stuart Mill, John On Liberty and Other Essays, ed. with introduction by John Gray (Oxford: Oxford University Press, 1991)at 14.Google Scholar

4. Ibid, at 109.

5. Ibid, at 94–95. It is interesting that the reason Mill gives for rejecting attempts to suppress offenses to religion by force is that we would protest against the injustice of such attempts applied to ourselves.

6. IbidThus, some argue for the wider interpretation of the principle which thus legitimates attempts to deter refusals to offer help, while others argue for the narrower interpretation, which then renders illegitimate attempts by society to force any of its number to act as a Good Samaritan.

7. Feinberg, Joel The Moral Limits of the Criminal Law: Harm to Others (Oxford: Oxford University Press, 1984)at 10.Google Scholar

8. The Offense Principle, which Feinberg also defends, can be stated as follows: To prevent serious offense to persons other than the actor is always a good reason for prohibiting an action, provided the prohibition is effective and necessary. Cf. , The Moral Limits of the Criminal Law: Offence to Others (Oxford: Oxford University Press, 1985) at 1.Google Scholar

9. See Feinberg,supra, note 7 at 26–27.

10. Ibid, at 26.

11. Ibid, at 105.

12. Ibid, at 35.1 take up this aspect of what might count as wrongfully set-back interests below.

13. These welfare interests must be qualified as ‘normal’ since wealth, for example, is of no interest to an ascetic and good health may matter little to a dedicated dissolute.

14. Feinberg, supra note 1 at 10–12. Feinberg is, of course, entitled to make the necessary terminological shift. My ultimate point, however, is that a less confusing, more transparent terminology would better serve the formulation of the doctrine of Legal Liberalism.

15. Feinberg,supra note 1 ch. 21 and ch. 23.

16. The maxim asserts that one cannot be injured by what one accepts of one’s own volition. For a discussion of it and its implications, see Feinberg, supra note 7 at 115–25.

17. See, for example, Feinberg, ibid, at 26–27.

18. Feinberg,supra note 1 at 26.

19. Ibid, at 126.

20. Ibid, at 14–15.

21. Ibid, at 11.

22. Feinberg,supra note 1 at 26.Thus, this formulation of the Harm to Self principle would accommodate John Kleinig’s position, which is by no means a fulsome endorsement of paternalism, but goes further in that direction than Feinberg would allow. See Kleinig, John Paternalism (Totowa NJ: Rowman & Allanheld, 1983).Google Scholar

23. Feinberg,supra note 1 at 25–26.

24. See supra note 7 at 174–75.

25. Ibid, at 175.

26. Ibid, at 21.

27. C. Harris, as quoted in Feinberg,supra note 1 at 137.

28. Ibid, at 137–38.

29. Ibid, at 141.

30. Ibid. Feinberg notes that his position is unlike Gerald Dworkin’s, who would accept the prohibition on paternalistic grounds if all else failed.

31. Kleinig,supra note 22 at 67–77. Also, Robert Young argues that paternalism can be justified when we infringe on ‘occurrent’ autonomy to protect ‘dispositional’ autonomy.See Young, Robert Personal Autonomy: Beyond Negative and Positive Liberty, (New York: St Martin’s Press, 1986).at 65–70.Google Scholar

32. See Mackie, John Ethics: Inventing Right and Wrong, (Harmondsworth: Penguin, 1977).Google Scholar