Document Type

Article

Publication Date

2005

Publication Information

73 UMKC Law Review 681 (2005

Abstract

Restricting a person's substantially voluntary, self-regarding conduct primarily for the sake of that person is hard paternalism. Particularly in the public health context, scholars, legislators, and judges are devoting increasing attention to discussing the conditions and circumstances under which hard paternalism is justified. One popular type of argument for the justifiability of hard paternalism takes its normative warrant from the consent of the restricted person.

In this Article, I argue that scholars and policymakers should abandon consent-based arguments for the justifiability of hard paternalism. Such arguments are torn between incoherence and lacking moral force. Very few consent-based arguments successfully resolve this tension. But even these arguments appeal, at bottom, to a notion of beneficence for their justificatory force.

Policymakers should not make strained efforts to demonstrate that the subject of hard paternalism has "consented" to the limitation of liberty. They should, instead, calibrate the moral scales to ascertain the circumstances under which restricting liberty achieves benefits of sufficient weight to justify overriding individual liberty. A balancing framework reveals the tradeoffs at issue. And using such a framework will lead to clearer, more consistent, and more legitimate public policy.

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