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Paternalistic Laws: Term Definition Essay (Critical Writing)

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Updated: Oct 18th, 2021

Introduction

Paternalism refers to the age-old replica of making decisions for other individuals without their consent purportedly in their own best interest known as paternalism. The Latin word “patter” refers to the father and it connotes to the patriarchal family model where the head of the family namely ‘father’ takes all important decisions, particularly when it comes to matters of their children. Paternalism can be defined as an approach of a government or an individual that how the subordinates should be contained in a fatherly manner for their good.

Thus, paternalism demands some kind of interference with or refusal to adhere to another individual’s wishes as regards his good.

Analysis

In health care industries, the principle of beneficence implies a moral duty to act for the advantage of others. In health care, the benefit of good in question is the restitution of the health of the patient. In accomplishing this duty of beneficence, the physician occasionally supersedes the patient’s desires or initiating action for the advantage of the patient. This is recognized as paternalism. It is an infringement of the principle of autonomy and hence there arises a conflict or tension between beneficence and autonomy.

The word ‘paternalism’ appears to include the manner a father would react towards his child, but the ethically appealing cases are those of actions aimed toward self-directed or formerly autonomous individuals against their spirit, but for their good.

Dworkin emphasized in his article “The theory and Practice of Autonomy”, there can be an infringement of autonomy for one to give treatment to another paternalistically. Dworkin reasserted the need to involve in the project of determining the justification for paternalism if any. Concisely it can be said that paternalism is bedeviled with flooding of moral issues begging for resolutions.

It may typically engross coercion or force on the one side, or lying, manipulation, deception of information, or nondisclosure of information on the other side. All paternalistic acts are designed to restrict one’s autonomy.

Kinds of paternalism

  • An individual paternalism refers to the intention of the paternalist is to benefit an individual.
  • A social paternalism refers to the benefit focused on either a class of individuals or a group.
  • An active paternalism refers to one when a paternalist performs to usher benefit despite the preference of non-intervention.
  • Passive paternalism implies when paternalists refrain from executing an individual’s preference.
  • A soft paternalism refers to benevolent control over the affairs of the people. Some examples of soft paternalism are warning labels, truthfulness, and enhancement in the social security system, etc.
  • A hard paternalism infringes an individual’s self-determination.
  • A weak paternalism is one where a physician takes no notice of the patient’s desires when the patients are senile, depressed, confused, or incapacitated in their capacities to make independent decisions. “Pure paternalism” which means the person whose good is being safeguarded is the same as the individual whose freedom is being controlled.

This is the type of paternalism that Mill was most concerned to prevent.

Mill’s anti –paternalism view

Mill’s vehemently argues for anti-paternalism:

  • Since control is an iniquity, the trouble is on those who recommend such restraint.
  • Since the behavior which is being regarded is simply self-regarding, the normal plea to safeguard the interests of others does not exist.
  • Therefore we have to think whether causes involving reference to the individual’s welfare, goodness, interests, or happiness is adequate to trounce the burden of justification.

We cannot push the preferences of the individual by coercion, or they try to do so involves immoralities that overshadow the good done. Therefore the encouragement of the individual’s happiness does not offer an adequate warrant for the use of craving. (p. 326):

But it is a pragmatic question whether an individual’s interests can be safeguarded better by compulsion than liberty, and it appears that in many cases we should permit that a person would be comfortable if contained than allowed total freedom of choice. There are many occasions where the evil of coercion is less than the evil person would do to themselves if left open.

Hence, utilitarianism only favors a conjecture in favor of freedom, not an absolute restriction on interference.

Dworkin emphasizes that there is a next, non-utilitarian filament in Mill’s philosophy, which treats free choice and autonomy as intrinsically precious. As per this approach of argument, we ought not to pressurize an individual for his own good irrespective of the consequences because such compulsion denies his rank as an independent agent.

According to Dworkin, “to be able to prefer is a good that is autonomous of the wisdom of what is selected.”

As per Mill, an individual’s “approach of laying out his survival is best, not because it is paramount in itself, but because it is his own approach.”

There is an assumption that free people decide what appears good to them. Free preference mirrors the values of the selector. Honoring a person needs to respect his values and the preferences in which they are represented.

On this scrutiny of free option, as a sovereign value, o might find bases to interfere with preferences now that would rigorously limit the capacity to make free preferences in the future. For instance, selling oneself into slavery, suicide, cult membership harmful addictive drug use, contracts of immigrants, and indulging in prostitution.

Medical paternalism always limits the patient’s independence and is always coercive.

California State law requires the drivers of two-wheelers to wear helmets compulsorily. Bikers protested the same on the ground that it infringes on their freedom of choice. Sikhs, an Asian community also protested to wear a helmet on the ground that wearing a helmet may hinder their freedom to have Durban as per their religious faith. However, legislators argue that it will protect the two-wheeler owners from grave injuries. Here, the decision of the lawmakers is tantamount to paternalism as the father takes decisions for his children on the footing that the father is aware of the best.

The doctrine of paternalistic law inspires a wide range of practices and laws and actions. Some of the paternalistic laws are:

  • A doctor who makes a decision on what is good for a patient
  • A cautious sign banning swimming without a lifeguard on duty
  • Laws prohibiting the use of marijuana, cocaine, heroin, and other drugs.
  • Laws against voluntary mercy killing (euthanasia )
  • Mandatory retirement savings scheme
  • Compulsory seat belt regulations
  • Mandatory to wear helmets for two-wheeler drivers
  • Laws relating to attempted suicide declaring it as illegal
  • Laws demanding people to have different kinds of insurance
  • Laws demanding subscriptions to schemes like EI and CPP
  • Laws relating to minimum wages, maximum interest rates on loans, or stipulating maximum working hours
  • Proscriptions on probable hazardous activities ( for instance operating vehicles without a license, drug use, gambling,dueling)
  • Procedures Civil commitment
  • Limitations on commercial actions, by enacting regulatory acts
  • Limitations on which contracts will be maintained or which protections will be permitted
  • Limitations on advertising of hazardous products

All the above laws are relating to paternalism and can be explained with an individual’s liberty for his good.

In all of the foregoing illustrations, individual right is controlled, in the interests of the individual who is being curbed. However, the hazard to the individual’s interests demands the energetic cooperation of the “victim” herself. Moreover, if intimidation is necessary to stop an individual from participating in the activity, it appears that it is fair that the restriction is planned to achieve is not considered as such by the individual for whom the good is meant. So paternalism appears to engross the substitution of one person’s decision about what is beneficial for a person, where the latter does not exchange that judgment.

Paternalism involves a conflict of two significant values: a) the value one gives on the liberty of individuals to make their preferences about how they will conduct their lives b) the value we accord on encouraging and safeguarding the well-being of others.

When individuals make their choice freely to act in ways that appear contrary to their issues, the subject of paternalism emanates.

Paternalism safeguards the individual from themselves as if their safety were more significant than their freedom. In opposition, the harm principle, notably advanced by Mill, maintains that restricting liberty can only be reasonable to stop harm to other people, not to put off self-harm. More exactly, coercion can only be rationalized to stop harm to unwilling others, not to stop harm to which the performers capably consent.

The common legal restraints of rape, arson, murder, and theft are not paternalistic, since these deeds harm unwilling others; for the same rationale, criminal legislation in these provinces is coherent with the harm principle. The harm principle and legal paternalism come into clash over (1) capable self-harm and peril of self-harm, (2) injury to consenting others, and (3) innocent acts. The harm doctrine warrants that we endure all the above three types of acts, but paternalists frequently wish to control them. If an ably agreeable person is not a victim, then these three categories of activity are victimless. Under the harm code, victimless crimes must be legalized and almost all paternalism over competent adults completed. The harm doctrine establishes a “precinct of seclusion” for consensual or “self-respecting” acts, within which persons may do what they desire and the state has no business to intervene, even with the compassionate intention of a paternalist.

In the case of young children, incompetents persons, retarded, the assent to self-harm is not proficient and need not be honored. However, even learned proponents of the code are far from conformity on (1) which activities hurt only the actor, (2) which assents are legitimate, and (3) which activities are harmless and (4) if “injury” is defined generally, or “valid assent” hardly, then even the harm code will fail to offer a meaningful sector of privacy or hurdle to paternalism.

According to Mill, every activity “impacts” everyone but only circuitously and remotely. A motorcycle rider who is willing to undertake the risks of riding without wearing a helmet, and who bears traumatic head injury, may hurt many individuals who did not assent. For instance, harm is made to his financial and emotional dependents, colleagues of his insurance pool, and taxpayers who support public hospitals, ambulance services, and highway patrols. This unique application of the harm doctrine is known as the “public charge argument” for intimidation. It cannot be considered to be paternalistic, since it is aimed against harm to unconsenting others, not against self-injury. If we can ban riding a motorcycle without a helmet because of the damaging “public charge” it throws a burden on unconsenting others, then we can ban eating fatty foods on the same footings. In a welfare government that changes costs to recompense those who harm themselves, practically all self-harm will be other-harm too; hence practically every corner of life could be regularized by law without breaching the harm principle, and nearly all paternalism would be justified.

Occasionally, a government may forbid an act while agreeing that the act can be undamaging and the consent is valid. For instance, sodomy is still outlawed by many governments even for agreeing to adults in private. Here, the subject is not harm or consent, or the consequence on the unconsenting public, but the ethics of the act as such. To forbid a harmless act exclusively on moral positions is a unique way of performing for people’s good and getting their approval is irrelevant. This constitutes an unusual form of paternalism. It is typically recognized as “legal moralism”.

Mentally incapacitated persons and Children are often handled paternalistically. Such action is permissible on the fundamental that they do not have the decision-making power essential to make preferences that are in their long-term interests. Parents typically have a better inspiration for their child’s interests and may correctly limit their behavior, for instance, by restricting their intake of junk food to support their health.

However, paternalistic interference in the case of skilled, proficient adults is more complex to justify. Adults are usually regarded to be responsible, autonomous, and rational beings. However, occasionally adults make preferences that are not neutrally in their interest, for instance choosing to gamble or smoke. Paternalism laments that if an adult individual makes an objectively unreasonable preference, the government is having every right to intervene to thwart that choice.

There are two main circumstances where an individual may be regarded to be acting illogically. Firstly, according to Dworkin, an individual may be considered to act irrationally when they are not aware of the possible outcomes of their actions. For instance, a person may be an addict to smoking, ignoring the truth that it will greatly augment their possibilities of developing many diseases. When government interferes by persuading and informing individuals of the probable harm that may come out of habit such as smoking, they are exercise “soft paternalism.” This kind of paternalism is reasonable since it does not forcefully limit the individual’s liberty, but rather permits the person to make a fully informed preference.

Secondly, an individual may have wants that are regarded to be irrational. If government forcefully limits them from acting on these preferences, they are practicing “hard paternalism.” Prohibitions on the use of marijuana, cocaine are examples of hard paternalism. The urge to consume such drugs is regarded as irrational due to the potentially irreversible, serious consequences that may come out of such actions. Hard paternalism is more complicated to rationalize than soft paternalism, as it involves giving away individual freedom for outwardly inflicted concepts of ‘well-being.’ The central principle of paternalism is that the government is aware of an individual’s preferences better than the individual. This is because the government is outstripped from the background in which the individual makes personal preferences. Uninjured by any physical or emotional desires, the government can as a result make more balanced judgments about an individual’s long-term preferences.

The trouble with such an intention outstripped judgment is that it may be too far away to recognize scenarios in which obligatory prohibitions may damage a minority. Society consists of a great diversity of religious, social, and cultural values. However, compulsory restrictions do not differentiate between individuals or their significances, and if hastily imposed, may thus have a destructive consequence on minorities and a homogenizing consequence on society.

Conclusion

In this world of globalization, where cultures are becoming progressively more interlaced and national values more assorted, the idea of collective, impartially determinable interests is implausible at best. In the circumstances of such pluralism of values, the most efficient way for the government to avert decisions that may hurt individuals is through encouraging individual freedom mainly through information campaigns or instead, through influence. Limiting an individual’s behavior can be rationalized where the harm prevented is considerable and freedom that is given up is insignificant. However, society’s multiplicity renders any efforts to achieve universal welfare through the systematic control of freedoms an ineffective exercise.

Bibliography

  1. Besharov, Douglas J., and Karen N. Gardiner. “Paternalism and Welfare Reform.” Public Interest, 1996, 70+.
  2. Farnsworth, E. Allan. “Promises and Paternalism.” William and Mary Law Review 41, no. 2 (2000): 385.
  3. Häyry, Heta. The Limits of Medical Paternalism. New York: Routledge, 1991.
  4. Kelsen, Hans. Introduction to the Problems of Legal Theory. Translated by Paulson, Bonnie Litschewski and Stanley L. Paulson. Oxford: Clarendon Press, 1992
  5. Miller, Franklin G., and Alan Wertheimer.”Facing Up to Paternalism in Research Ethics.” The Hastings Center Report 37, no. 3 (2007): 24+.
  6. Murphy, Jeffrie G., and Jules L. Coleman. Philosophy of Law: An Introduction to Jurisprudence. Revised ed. Boulder, CO: Westview Press, 1990.
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