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  • Chapter 2 - Penal paternalism

  • Edited by Christian Coons, Bowling Green State University, Ohio, Michael Weber, Bowling Green State University, Ohio
  • Book:
    Paternalism
    Published online:
    05 February 2013
    Print publication:
    14 February 2013, pp 39-55

  • Summary

    This chapter discusses the special problems that pertain to penal paternalism. The author's theory of criminalization consists in six constraints that must be satisfied before a penal law, any penal law, may be enacted and enforced. First, all criminal laws must be designed to prevent harm. Second, the conduct proscribed by the criminal law must be wrongful. Third, persons must deserve punishment for violating the criminal law. Fourth, the state must have a substantial interest in proscribing the conduct banned by a criminal law. Fifth, the law must actually promote that state interest. Sixth, the law must be no more extensive than necessary to accomplish its purpose. The chapter describes several problems in efforts to show that a given instance of penal paternalism satisfies them. The problem facing paternalists is to decide whether the wrongs involved in failures to take care of oneself are public or private.