Document Type

Article

Publication Date

2004

Publication Information

20 Georgia State University Law Review 659 (2004)

Abstract

n his classic 1897 essay, The Path of the Law, Oliver Wendell Holmes Jr. warned against blind imitation of the past and called for "enlightened skepticism" toward the law. He described the first step of this critical examination as getting "the dragon out of his cave and on to the plain and in the daylight" so that "you can count his teeth and claws and see just what is his strength." Over the past thirty years, disagreements over the appropriate definition of "paternalism" have often masked further disputes over the circumstances under which the restriction of substantially autonomous self-regarding conduct is permissible. Holmes' dragon, hard paternalism in this case, has remained hidden in its cave.

In this article, I pull the dragon out of its cave so that we can get a good look at him. I address the conceptual problems surrounding paternalism by rigorously defending a definition of "hard paternalism" containing logically individually necessary and jointly sufficient conditions. Moreover, the benefits of a clear and comprehensive definition are not only conceptual. Defining hard paternalism with an adequate degree of precision will enable more useful normative dialogue about the conditions under which hard paternalistic restrictions are justifiable.

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