LEGAL PATERNALISM: BETWEEN NEUTRALITY AND PERFECTION

1. Introduction

In Joel Feinberg's classification of the liberty-limiting principles

which might provide a moral basis for the structure and scope of the

criminal law, the principle named legal paternalism is defined as the

criminalization of conduct by government solely in order to prevent

competent adults from harming themselves1. Certain elements in that

definition require clarification.

Firstly, legal paternalism is a type of governmental activity. The

question of the justifiability of legal paternalism is separate,

though related, to the wider question of the justifiability of

paternalistic interferences by non-state actors such as parents,

private employers, teachers and friends.

Secondly, legal paternalism is a specific kind of government

paternalism, not government paternalism tout court. The concern of this

paper is to examine the extent to which criminal law can legitimately

include offences the aim of which is to prevent competent adults from

harming themselves. It is therefore an examination of one of the moral

limits on the purpose and scope of the criminal law. Legal paternalism

involves coercive interference with people's liberty. Some types of

government paternalism do not involve coercing agents (for example, a

government body structuring a welfare program by providing goods in

1 Feinberg (1984) p.26

1

specie rather than the money to acquire them on the grounds that the

money might be spent in ways that would harm the recipient). At a high

enough level of generality all kinds of government paternalism employ

a common means of protecting people from harming themselves –

namely, by reducing or eliminating an agent's harmful options .

However, legal paternalism is the attempt to eliminate harmful options

by criminal prohibition and that involves the making of a conditional

threat to the agent that punishment will follow if he engages in the

proscribed conduct.

Thirdly, legal paternalism is what Feinberg2 labels “hard paternalism”:

it is the policy of enacting criminal laws in order to protect

competent adults from the harmful consequences of their voluntary choices3.

Feinberg sets out a precise account of a perfectly voluntary choice4.

Such a choice is one where:

• The chooser is competent, i.e. not an infant, insane or severely

retarded;

• The choice is not made under coercion or duress;

• The choice is not made under more subtle manipulation (such as

posthypnotic or subliminal suggestion);

• The choice is not made because of ignorance or mistaken belief

2 Feinberg (1986) p.12 3 As opposed to the soft paternalism which may be justifiable in cases of

doubt about whether a person who may bring harmful consequences upon himself armful is acting voluntarily and with adequate knowledge of the risks: cf. J.S. Mill's example of a person about to walk across a damaged bridge, where an onlooker doubts whether the person understands warning signs that have been posted.

4 Feinberg (1986) p.115

2

about the factual circumstances or likely consequences of that

choice; and

• The chooser does not choose in circumstances that are temporarily

distorting (on impulse, while excessively fatigued, under the

influence of a powerful passion or emotion, under the influence

of mind numbing drugs).

Almost all choices fall short of this standard of perfect

voluntariness to some extent. However, voluntariness is a spectrum

with perfectly voluntary decisions at one end and completely

involuntary movements (being pushed) at the other. Fully voluntary

choices come close to the perfect end of the spectrum, while non-

voluntary choices fall substantially short of the ideal. In this

essay, I will address the issue of whether government can be justified

in using criminal laws to interfere with adults’ fully (although not

necessarily perfectly) voluntary choices in order to prevent them

harming themselves.

Fourthly, something needs to be said about how to understand the word

harm. Harm to a person connotes a negative impact on a person’s well-

being or welfare5. The philosophical literature contains a plethora of

5 In defining the harm principle and offence principle as candidate principles for justifying criminal law, Feinberg identifies harm as the setback to welfare which is wrongful (a violation of a duty owed to the person harmed), while admitting that this departs from ordinary usage (Feinberg (1990) pp. xxvi-xxvii). His motivation for adding the wrongfulness condition is to ensure that conduct which is required or permissible – killing in self-defense, competitive economic action etc. - may not be criminalized (under his version of the harm principle). In defining legal paternalism (which operates with the concept of harm to self), he dispenses with the requirement that the set-back to welfare must be wrongful – see Feinberg (1986) pp. 10-12.

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conceptions of well-being, of when and why well-being is enhanced or

set back. For the most part, this essay does not try to decide between

the different conceptions. Note, however, that if the inquiry into the

justifiability of legal paternalism is to get off the ground, it is

necessary to assume that some subjective accounts of well-being are

wrong. Take for instance, a radically subjective account of well-being

according to which a person’s well-being cannot be harmed by her fully

voluntary choices or their consequences. In order for the question

whether legal paternalism is ever justifiable to be an intelligible

question, such an account of well-being must be assumed to be false

without further ado. It makes no sense to ask whether a criminal

prohibition which is designed to protect a person from harm in a given

situation is justified when there is no harm to be prevented.

The issue addressed in this paper is whether and if so, when, legal

paternalism is justified when a person is in fact harmed. Consequently, I will

largely assume the falsity of radically or basically subjectivist

accounts of well-being which make a person's faring well depend solely

on the satisfaction of (some set) of his actually held preferences or

desires. In the same spirit, the essay makes few commitments about the

types of harm that a person can suffer. It seems uncontroversial that

a person can suffer physical, economic and psychological harm as a

consequence of his fully voluntary choices. More controversial is the

intelligibility of the idea that a person can be harmed his own

immoral activities, at least when he considers those activities to be

valuable or not immoral. Some theorists doubt that a person can suffer

moral harm on the grounds that only actions which harm people other

than the agent himself can be immoral or because they hold that the

person's immorality can cast only an impersonal stain if the person

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believes (wrongly) that the activity is valuable6; it may make the

person's character worse or the world worse etc., but is not worse for

the person. In this essay these doubts will be largely bracketed.

Finally, it is worth emphasizing the trite point that legal

paternalism is criminally prohibiting conduct for a particular reason,

namely, that the prohibition will protect people from harming

themselves and thereby serve their well-being. The basis for the

justification of paternalistic criminal laws is not that they improve

the person's character or make him a better person, or the world a

better place (although these may be welcome side effects) but that

they can be good for the person, by improving their well-being. Whether

this claim about the justifiability of legal paternalism is always true,

and if not, when it is true will be examined in this paper. We will

not examine whether criminal laws which in fact protect people from

harming themselves, but are not passed for that reason, can be

justified. According to the definition of legal paternalism the reason

why government's enacts these criminal laws is the prevention of self-

harm, and like all actions, government's enactment of laws can't be

justified by reasons which were not also the reasons that motivated it to

pass those laws.7

2. The logic of justification

6 Cite to R. Dworkin (2003).7 For a defence of this claim, see “Justifications and Reasons” in Gardner

(2007). The proposition that a justified action is an action performed for ajustifying reason (rather than an action performed in circumstances in which a justifying reason exists, irrespective of whether the action is performed for that reason) is a part of the English criminal law of self-defence and, perhaps, the justificatory defences generally: see R v Dadson (1850) 2 Den 85.

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The question whether legal paternalism is ever justifiable, and if so

when, implicitly assumes that legal paternalism is the kind of thing

that needs to be justified. Why? The answer must be that legal

paternalism is wrongful because only wrongful acts require

justification. To be precise, legal paternalism need only be prima facie

wrongful because at present it is an open question whether it can be

justified. [Elaborate distinction between wrong and wrongful – cf

Gardner in Justifications and Reasons]

Why might legal paternalism be a wrong? Since the purpose of this

section of the essay is to explain the formal requirements for

successful justification of an action, at this stage we will simply

note that legal paternalism is objectionable because criminal laws

interfere with people's liberty. That does not tell us whether what is

specifically objectionable about paternalistic criminal laws consists

in the interference with a person's liberty to do what harms him, or

whether it lies in the interference with his liberty to do other

things, apart from the activity that is harmful. Nor, does it tell us

why interfering with those liberties makes legal paternalism

objectionable. Identifying precisely what might be wrong with legal

paternalism is a large part of the task of determining whether and

when it is justifiable. Arguments about what precisely is wrong with

coercing someone through the criminal law are considered in sections 3

and 6.

6

According to Gardner's account of the logic of justification of

action8:

Person A, is justified in performing action Ø if, and only if, A Øs for at least one valid

reason to Ø and that reason is an undefeated reason to Ø.

Certain terms in the account require elaboration. There are two

different ways in which some reason for A to Ø may be defeated: (i) A

has a reason not to act for that reason to Ø or (ii) A has reasons not

to Ø which outweigh the reason for A to Ø.

These two ways in which a valid reason for A to Ø can be defeated are

logically different. In the first case, A’s reason to Ø is defeated

because it is pre-empted from consideration by A in advance of any

conflict with reasons for A not to Ø. It is possible that A’s reason

to Ø has greater weight than A’s reasons not to Ø, so that if the

reason not to Ø was not also combined with an exclusionary reason for

A not to act for the reasons to Ø, A would have an undefeated reason

to Ø. But since there is an exclusionary reason for A not to Ø, he may

not treat the reason to Ø as relevant in deciding whether to Ø. By

contrast, a reason to Ø is defeated in the second sense not because A

may not consider it, but simply because it is not as telling or

salient a consideration as the reason or reasons for A not to Ø.

Put into less formal terms, and applied to legal paternalism, we can

say the following:

8 See Gardner (2007) supra

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Government is justified in passing a paternalistic criminal law if, and only if, there is at

least one good reason for government to pass that law, which is neither excluded from

the range of reasons that government may act on, nor outweighed by reasons against

passing that law.

So put, we can identify three possible forms of argument that a

paternalistic criminal law is not justified:

(i) there is no valid reason to pass the criminal law;

(ii) there is a valid reason to pass the criminal law but

government may not act for that reason (a “type (ii)

argument”); or

(iii) there is a valid reason for government to pass the law but

the reason is outweighed by a reason or reasons for

government not to pass it (a “type (iii) argument”).

We have already encountered in passing a type (i) argument about the

justification of legal paternalism. Recall that some accounts of well-

being hold that all or some of the fully voluntary choices of

competent adults simply cannot harm those people. Such accounts, if

true, argue that (always or sometimes) there is no valid reason for

government to enact a paternalistic criminal law because there is no

harm to prevent. As we mentioned in section 1, the paper will not

discuss these accounts of well-being.

Are there any other type (i) arguments which do not amount to a denial

that there is harm? Yes: arguments that the criminal law would be

ineffective to prevent the harms they are designed to avoid. So, for

example, imposing a requirement that people take regular exercise on

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pain of punishment is unjustified if it is unlikely to make people

healthier because they will still eat fatty foods. Similarly, if a

criminal prohibition cannot be reliably enforced (because violations

are difficult to detect) or if the fact that certain harmful conduct

is prohibited will be taken as a reason to engage in it9, then the use

of the criminal law will normally be unjustified.

However, arguments about the ineffectiveness of paternalistic criminal

laws to prevent harm usually involve empirical predictions about how

people who would otherwise harm themselves will respond to criminal

prohibitions of particular harmful conduct. Although they do set

practical limits on the justification of legal paternalism, such arguments

do not bear on the justifiability of legal paternalism in principle10. I

9 This is what Freud called “pale criminality”. The allure of cigarettes and alcohol for under-age teenagers is perhaps partially explained by this phenomenon. For discussion of it in connection with the limits of the criminal law, see Stanton-Ife (2006)

10 This claim about type (i) ineffectiveness arguments might be doubted. A well-known objection to paternalistic criminal laws is that they often failto improve the well-being of the person paternalized. That argument, if correct, implies that a lot of legal paternalism is unjustified. Is it a type (i) argument? It is certainly a type (i) argument if it involves the claim that there is often no harm to the person to be prevented. But the argument need not be, and is not naturally, read that way. Instead the argument might be that criminal prohibition can prevent a real harm but that often or always it will cause as much or more harm in the process. Would that make it a type (i) argument? No.

The view that the criminal prohibition sometimes or always fails to improvethe paternalized person's well-being is an all things considered rather than prima facie judgment: a certain harm is prevented (and pro tanto the person's well-being improves) but given the other negative effects of the criminal prohibition, there is (always or sometimes) no net improvement in the person’s well-being. A type (i) argument denies that there are even prima facie reasons to enact a criminal prohibition to prevent citizens from harming themselves. A type (iii) argument denies that that all things considered, there are undefeated reasons to enact the criminal prohibition.

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note, only in passing, that R. Dworkin has made an argument from

ineffectiveness which purports to have the consequence, if valid, that

all criminal prohibitions designed to prevent moral harm to a

competent adult arising from his fully voluntary choices are

unjustified11. This essay does not address that argument.

The remainder of this paper will be taken with examination of type

(ii) arguments. In Sections 4 and 5 we will consider whether a

particular type (ii) argument – the neutrality argument – rules out

all or much legal paternalism. What happens if we eschew type (ii)

arguments and, embracing the doctrine of political authority known as

“perfectionism”, use only type (iii) arguments? Must we hold legal

paternalism to be justifiable in a wider range of cases? I address

that topic in a related paper.

3. Neutrality, perfectionism and legal paternalism: the claim

The type (ii) argument I want to consider is based on a doctrine about

the limits of legitimate governmental authority known as “neutrality”

or “anti-perfectionism”. That is the idea that government must act

neutrally in some or all domains of its activity.

For our purposes, neutrality means that government may not act for the

reason that a citizen’s vision of the good life is better or worse,

right or wrong. It is not that government must ensure that its

conduct has neutral impact – does not make the realization of some

visions of the good life easier or harder, more or less likely – but

11 Cite to R. Dworkin (2003).

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that it does not act for reason that citizens’ beliefs about what

serves their well-being are true or false. The doctrine of neutrality

can take wider and narrower forms. In its widest form, associated with

Robert Nozick, government may not act at all12 in order to promote or

discourage conduct which it believes adds to or reduces the quality of

its citizens' lives. The narrower form, espoused by Joel Feinberg13 and

others, holds that government is forbidden from passing criminal laws

for the excluded reason although it is not so restricted in other

domains of its activity.

A more precise statement of the neutrality principle as it applies to

the criminal law is as follows:

Government may not enact any criminal prohibition for a reason which presupposes the

truth or falsity of a proposition about what makes a person’s life better or worse.

Note first that the reasons for passing criminal laws which are

forbidden by this principle must be based on a proposition about what

makes a person's life fare well or badly. Secondly, since the

principle applies to the criminal prohibition of conduct, the excluded

reasons will rest on a negative judgment – that the conduct prohibited

does not make for a good life for the person who is subject to the

prohibition. Thirdly, part of what is objectionable about the state

enacting crimes for the excluded reason is that it typically involves

12 The exclusion of reasons applies not only to government's enacting criminallaws but also to other laws and policies backed by state coercion (setting and raising taxes, private law generally) and those which have no direct link to coercion: official statements, setting education policy, designating public holidays and so on.

13 Feinberg (1990) p.278

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a denial of a citizen's own judgment that the conduct prohibited will

contribute to his well-being. This point will be elaborated shortly.

Refined in these ways, the neutrality principle tells us that in order

to decide whether a candidate reason (such as harm prevention) is

excluded, it is necessary to consider whether the reason entails a

denial of the truth of a citizen's view that an activity serves his

own well-being.

Our concern is not with whether the neutrality principle is valid but

with what it entails for the justifiability of legal paternalism.

However, in order to understand the implications of the neutrality

principle, it is necessary to understand its appeal. Why is it claimed

that government is excluded from acting on such reasons, in enacting

criminal laws or more widely? The common answer is that the

prohibition is entailed by government’s duty of respect14. No doubt

government does have a duty to respect the governed as persons. Why

think that that duty is a reason not to act for reasons which conflict

with citizens' own views about what makes their life go well?

One argument is that personhood is constituted by the capacity for

rational self-direction. To respect a person is to respect her

possession of this capacity. Roughly, this capacity is (i) the first-

order capacity to act in light of one's beliefs about what is valuable

and to select activities, relationships etc. which they believe will

instantiate that value and (ii) the second-order capacity to

14 See Metz (2001)

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deliberate about what is valuable and to revise their first order

beliefs about what is value, as a result15.

On this argument, then, if the state acts to discourage a freely

chosen activity which risks harm to the agent, it thereby treats him

as if he lacks the capacity for rational self-direction16. His

personhood is not respected. Merely denying the soundness of a

person's judgment about what contributes to his well-being is usually

not sufficient. If you are my friend and think that playing

tiddlywinks is a pointless activity and advise me to give it up

because there are better things to do, that need not disrespect me. A

further, necessary condition for expressing disrespect comes from the

type of conduct by which this view is expressed. For those who would

apply the neutrality principle to the criminal law only, enacting a

paternalistic criminal prohibition is a distinctively disrespectful

denial of the soundness of a person's judgment about what makes for a

good life. Why so? In part because by making coercive threats, the

state provides citizens with reasons to conform which by-pass

citizens' distinctive capacities to reason (and amend their views)

about what is worth doing. Instead of providing reasons to persuade

the citizen that his judgment is awry, he is treated as a being to be

manipulated into conformity because he cannot be trusted to reason

correctly about what is valuable.

15 At the end of section 5, various component capacities such as capacitiesto form justified factual beliefs supported by evidence, a minimal facilitywith logic, to conceive of oneself as extended across time and to recognizevaluable aspects of the world are separated out.

16 A sample quote from R. Dworkin (1977) p.43 : “...laws that constrain one man, on the sole ground that he is incompetent to decide what is right for himself are profoundly insulting to him....”.

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The neutrality principle is controversial. According to the family of

views about political authority known as perfectionism, although the

state does indeed have a duty to respect its citizens, the duty of

respect does not require restricting the reasons for which government

may act. As Raz has put it,

“The suggestion that it does have this implication confuses

respect for people because they have rational powers with

respecting their currently held views.”17

Peoples' rational capacities include the capacity to form beliefs

about what is worth doing and to choose options in light of those

beliefs. To respect people as rational agents is to respect that they

want to do what is in fact worthwhile. If people’s beliefs about the

worth of an activity are incorrect, and they come to realize this,

they regret having engaged in it. So, the argument goes, the state

fails to respect people if it respects their mistaken belief in the

validity of an invalid ideal. Positively, perfectionism holds that the

duty to respect persons requires that states should do what they can

to assist citizens to lead successful and worthwhile lives. Far from

being an excluded reason, the state should use the means at its

disposal to encourage citizens to engage in activities which

contribute to having a good life and discourage them from pursuits

which damage their well-being.

17 Raz (1998) p.43

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The issue we will consider in this paper is whether acceptance of the

neutrality principle or the doctrine of perfectionism makes a

difference to whether one must regard legal paternalism as justified,

and if so, how much. In particular, we will examine the following

claims, explicit or implicit in the writings of some commentators:

(1) acceptance of the neutrality principle entails that legal

paternalism is never justifiable; and

(2) acceptance of perfectionism about political authority entails

that legal paternalism is often justifiable18.

The basic argument for the first claim is a type (ii) argument, namely

that government is enjoined from passing a criminal law for the reason

that it will protect competent adults from harming themselves because

the government’s duty of respect for citizens prohibits it from

enacting criminal laws for that reason.

The basic argument for the second claim is a type (iii) argument,

namely that since the state should act to improve its citizens' lives,

and since citizens' fully voluntary choices may depart from what is

good for them, the fact that a criminal law can prevent a harm to a

citizen is always a good reason government to enact it, even if that

harm arises from his fully voluntary choices. The idea is that, for

perfectionism, the respect owed by government to a citizen’s fully

voluntary choice in deciding whether to pass a paternalism criminal

law is conditional whether that choice serves the citizen's own good.

18 Buckley (2005) pp.102-103

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In the remainder of this paper, we will consider the soundness of the

first claim. In a related paper, I address the soundness of the second

claim by examining Joseph Raz's account of perfectionism and whether,

properly understood, it must hold much legal paternalism to be

justifiable.

4. Neutrality and legal paternalism

The claim that the neutrality principle rules out as unjustifiable any

legal paternalism is based on the following argument (or something

like it):

(i) Every fully voluntary action is an intentional action

(premiss)

(ii) An intentional action is one that the agent believes will

realize some good (premiss)

(iii) In every voluntary action P, the agent believes not only that

P will realize some good but also that all things considered P

will be better for him than the other options available to him

(premiss) [change this to deal with incommensurable options; cf Raz – Engaging

Reason]

(iv) If the state criminalizes an action, P, for the reason that

the prohibition will protect the agent from harm that he would

otherwise suffering by engaging in P, it does so because it

believes that P will not serve the agent’s well-being

(premiss)

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Therefore (by (iii) and (iv))

(v) The states reason for criminalizing the conduct denies the

truth of the agent’s belief that the action serve his well-

being better than the available alternatives (conclusion)

(vi) The neutrality principle forbids the state from criminalizing

conduct on the ground that an agent’s belief that the conduct

serves his well-being is false (premiss)

Therefore (by (v) and (vi))

(vii) The state's reason for criminalizing the conduct is excluded

by the neutrality principle (conclusion)

(viii) Legal paternalism is always unjustifiable (QED).

The question is whether this argument is valid19.

19 It seems clear that premiss (iii) is sometimes false. In cases of weaknessof the will, a person acts intentionally but does not believe that, all things considered, the action serves his well-being best among the alternatives, or even at all. Furthermore, not all cases of weakness of thewill are cases in which the agent’s choice is less than fully voluntary in Feinberg’s sense. [Consider whether true. Are all cases of weakness of willsubsumable under Feinberg’s categories – a powerful distorting emotion; impulse? Probably not. Perhaps this is a verbal distraction best avoided?]

Therefore, there must be a class of cases in which the action is performed due to weakness of the will and yet the action is fully voluntary. In that class of cases, it seems that a paternalistic criminal law designed to prevent the citizen making a weak willed, but voluntary choice to engage ina risky activity (such a smoking) would not be ruled out by any interpretation of the neutrality principle. This argument cannot be pursuedhere.

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A challenge to the argument starts with the thought that, as a rule of

thumb, there are certain goods like continued life, bodily vigour,

health, mental acuity and material resources which must be satisfied

or protected to some degree in order for people to be able to pursue

activities they regard as valuable for their own sake, whatever they

may be. For most people, most of the time, actions which harm these

basic goods either endanger their pursuit of activities they regard as

valuable for their own sake or, if that is not quite accurate (because

they regard the potentially harmful action as realizing some intrinsic

value), endanger their pursuit of activities they regard as more

valuable than the disvalue of action which poses the risk of harm.

Consider three situations.

1. A person chooses to take a drug because that the pleasures to be

gained the drug outweigh any injurious effect it might have on her

mental health. That judgment is based on a false beliefs about the

level of risk posed by the drug.

2. A person chooses to smoke although she is aware of the most recent

information about the chances that she will develop a life threatening

illness given the amount she smokes. She does not want to develop a

life threatening illness. However, whenever she decides to buy

cigarettes and to smoke, she fails to realize that she is running the

risk of becoming gravely ill.

3. A person chooses to drive a motorcycle without wearing a seat-belt,

despite having the most up-to-date information about the risk of

serious injury associated with accidents involving helmet-less

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drivers. She is aware that she is running the risk when she rides

without a helmet. She chooses not to wear a helmet because thinks that

the values realized by riding without a helmet are greater than the

(discounted) disvalue of being involved in a catastrophic accident.

Adherents of the neutrality principle20 say that, other things being

equal, paternalistic criminal laws in situations 1 and 2 can be

justified. This follows, they say, because legal paternalism is the

criminal prohibition of fully voluntary choices by adults and in

situations 1 and 2, the person’s choice is not fully voluntary.

Some neutralists provide a more complex answer to whether legal

paternalism can properly be directed at persons in situation 321. They

draw a time- and world- indexed distinction between the judgments a

person may make in that situation. At time t1 when the person decides

to get on her motorbike helmet-less, aware of the risk of injury, she

assigns the injury a certain (dis)value in her decision22 but judges

that the value of riding without a helmet outweighs that disvalue.

Neutralists then imagine a counterfactual possible world, which is not

the actual world, in which the person23 has made the same decision for

the same reasons at t1 but in which at time t2 (some time instants

after time t1) the person suffers a terrible injury while riding,

which would have been prevented by wearing a helmet. In deciding

20 Notably J. Feinberg.21 G. Dworkin (1972); Rawls (1971) at pp.248-250.22 Discounted for the less than 1 probability that the risk will eventuate. 23 The counterfactual world being the same as the actual world, except for

the occurrence of injury at t2 in the counterfactual world and the events which cause it.

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whether a paternalistic helmet law could be justifiably applied to a

person in situation 3, neutralists such as Gerald Dworkin and John

Rawls think that the crucial datum is whether at t2 in the

counterfactual world, a person who in fact chose to ride helmet-less

at time t1 would regret their decision if the risked injury occurred at

t2, would wish that they had not valued riding helmet-less so highly at

t1, would concede that they were mistaken to do so. If the person would

not have such regrets, paternalistic criminal helmet-wearing laws

cannot be justifiably applied to them. If, however, a person at time

t2 would revise their valuation at time t1, then criminal laws can

legitimately require them to wear helmets.

Of course, there are epistemic difficulties in ever applying this

test. However, our question here is whether in type 3 situations,

legal paternalism is justifiable in principle, if one is an anti-

perfectionist, never mind whether one can know if legal paternalism in

justified in a given case. This involves evaluating Dworkin’s test for

distinguishing legitimate from illegitimate criminalization in type 3

situations, namely: whether the person who engaged in the risky

conduct at time t1 would regret their decision if, counterfactually the

risked injury eventuated at t2. Why think that this is an appropriate

test to determine whether a paternalistic criminal law could be

justifiably applied to a person in a type 3 situation?

Here is a plausible answer. Asking the hypothetical question enables

us to weed out a certain kind of irrationality that may be involved in

a person’s decision in a type 3 situation, but which is not always

involved. Where the fully informed person engages in risky conduct X

at t1 because she values the engaging in X more than she disvalues the

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harm that may result from X (discounted for the chance that the harm

will occur), but counterfactually at time t2, when that harm occurs,

would regret having engaged in X at time t1, this shows that at t1 she

irrationally attributed too much value to X or else undervalued the

negative value of X. In other words, the answer to the question shows

whether the person irrationally weighed the values she recognizes as

relevant in her decision to engage in X. More specifically, the answer

shows whether at t1 the person irrationally applied too great a

discount factor to the disvalue of X to register the chance that the

injury risked would not occur.

Can the neutralist accept this test for distinguishing legitimate from

illegitimate legal paternalism in a type 3 situation? The concept of

irrationality employed in the test is a purely formal one: an agent is

irrational in performing an action if, and only if, a proposition

expressing her (actual) evaluation of the reasons for and against

performing the action (at t1) is inconsistent with a proposition

expressing her (hypothetical) evaluation of the reasons for and

against performing the action (at t2). The form of irrationality which

is alleged by G. Dworkin, among others, to make the difference is not

just any defect in the agent’s reasoning about what to do.

Irrationality of this sort is to be distinguished from defective

reasoning about what to do which is caused by an incorrect factual

belief of the agent. It is also to be distinguished from defective

reasoning about action which is caused by an incorrect belief that an

activity has value (moral or other), when it does not.

The question that we must consider now is whether according to the

neutrality principle, this feature – an irrational weighing of values

21

in deciding what to do - permits the state to pass criminal laws

designed to prevent her from harming herself by engaging in that

action.

5. Neutrality and the exception for irrational weighting of value

To recall, the neutrality principle says that government may not enact

a criminal law for a reason which entails a denial of a citizen’s

judgment about which activities serve his well-being. On a natural

reading of this principle, we are supposed to focus on a citizen’s

actual judgments about what serves his well-being and to ask whether

in passing a criminal law government (implicitly) denies the truth of

those judgments.

We should recall, that the argument made at the start of Section 4 has

as (I would submit, plausible) premises (I – III), that all

intentional action is action for a reason and that all fully voluntary

action is action taken for the reason that the action will serve the

agent’s well-being. If premises I – III are sound, it follows that an

agent’s fully voluntary actions reflect his actual judgments about

what will serve his well-being. These are judgments that, according

to the neutrality principle, the state must not contradict when

passing criminal laws.

The proposition described at the end of the Section 4 is that the

state may pass a criminal law that denies the truth of a citizen’s

judgment about the value of the action he voluntary chooses if, in the

hypothetical situation in which the risk of harm posed by that action

is realized, the citizen would recognize that he weighed the value and

22

disvalue of the activity incorrectly. In other words, it seems to

state that the state may pass a criminal law which denies the truth of

a citizen’s actual judgment about well-being if it does not deny his

(relevant) hypothetical judgment. This seems to contradict the

neutrality principle. Prima facie, our conclusion must be that the

neutrality principle does not permit the state to pass criminal laws

designed to protect citizens from their voluntary choices to engage in

some risky activity where those choices are based on an irrational

weighting of values.

Let us consider whether there are plausible ways of challenging this

prima facie conclusion.

1. Challenge the distinction between actual and hypothetical judgments

about well-being

Possible arguments

One response to the prima conclusion is to argue that a person who (fully

voluntarily) chooses to ride a motorbike without a helmet because she

(irrationally) values the convenience of not wearing seat more than

the (discounted) disvalue of suffering terrible injury if she crashes

but would regret her weighting of values if the risked harm were to

eventuate, does not “really” value convenience more than the

(discounted) disvalue of injury. In reality, it might be said, she

judges that a life of riding motorcycles with a helmet is better than

a life of riding helmet-less in which she suffers a terrible injury

that would have been avoided had she worn a helmet. Therefore, it

might be said, a paternalistic criminal law requiring riders to wear

helmets, which is scrupulously addressed only to those riders who

23

irrationally over-value convenience, does not deny that truth of those

riders’ judgments about what will serve their own well-being, so is

not ruled out as unjustifiable by the neutrality principle.

The problem with this argument is that it does not explain why in

cases of irrational weighing of values a person's hypothetical

judgment should sometimes be respected over her actual judgment.

Instead, it ignores the problem by equating her hypothetical judgment

with her actual judgment. Even if one could predict with perfect

certainty that a putative addressee of a paternalistic criminal law

who rides motor-bikes without helmets would judge, if she were to

suffer avoidable but terrible injury, that she had wrongly overvalued

convenience against the disvalue of terrible injury, that does not

mean that she actually makes that judgment when she rides her bike

helmet-less – only, perhaps, that she should. Equating actual and

hypothetical judgment, belief or consent is a conceptual error24 and

morally unsatisfactory25. [cite to Quine, On What There Is]

A variant of this response, which is subtler, is subject to basically

same objection. The variant says that the neutrality principle does

not require the state to abstain from denying the truth of citizen’s

present judgments about how to live their lives, provided that it does

not deny the truth of judgments about how to live their lives that

they will make in the future. The neutrality principle is either

24 Bishop Butler’s dictum that “everything is what it is and not another thing” catches the spirit of what’s wrong here, although I suppose that to apply strictly it would have to say “everything that is, is what it is and neither another thing that is, nor a thing that could be but isn’t”. Obviously, the reformulation lacks the same pithiness.

25 Feinberg (1986) at p.187 calls it a “sham and an outrage”.

24

uncommitted with regard to citizens’ present versus their future

judgments about well-being or it requires only that the state does not

deny the truth of a citizen’s future judgments about well-being where

those judgments conflict with her present judgments (we shall call

either version, the “temporally liberal neutrality principle”. The

response continues that since we are concerned only with the

justifiability in principle of legal paternalism, we can ignore the

epistemic problem of how we could know at or before time t1 that a

person at time t2 will regret her valuation of convenience that led

her to choose to ride a motorbike helmet-less at t1. At or before t1,

it is a fact that that at t2 the rider will regret her weighing of

values26 at t1. Therefore, the temporally liberal neutrality principle

is satisfied in such cases – in passing the paternalistic criminal

law, government is not denying the truth of the judgment the helmet-

less rider will make in the future (at t2) about her well-being, only

the truth of the judgment that she makes now (at t1).

There are a number of problems with this variant, but it suffices to

identify only one. A paternalistic criminal law is justifiable only if

it can be effective to prevent the self-harm that it is aimed at. The

type 3 situation under consideration is one where the agent would

regret her evaluation of the activity undertaken at t1 if (but only

if) the injury risked eventuates at t2. The argument just stated above

asserts that, assuming epistemic infallibility, we know, at or before

t1, of any citizen who is a candidate for inclusion within the

26 The argument presupposes actualism about future-tense propositions. According to actualism, future-tense propositions are either true or false,but are not (i) neither true nor false; nor (ii) not yet true and not yet false. This thesis is controversial, particularly when asserted of future-tense propositions about what an agent will do. See Wallace (2010).

25

paternalistic criminal law, that at t2 either she will or will not

regret the evaluation of the risky activity she made at t1. But since

a candidate citizen will only regret her valuation if she suffers the

injury risked by the activity, those who (at or before t1) will regret

at t2 their relative weighting of convenience against the risk of

injury that led them to choose driving helmet-less at t1, are those

who will suffer the injury at t2. Even if the (temporally liberal)

neutrality principle does not rule out paternalistic criminal laws

being applied to those who will regret at t2 their evaluation of a

risky activity undertaken at t1, the effectiveness condition does. The

variant response is self-defeating.

In short, we cannot say of a candidate for inclusion in the scope of a

paternalistic criminal law that she will revise her weighting (at t1) of

values in the future (at t2) because this violates the effectiveness

condition on the justifiability of legal paternalism. In order to meet

the effectiveness condition, it can only be said that she would revise

her weighing of values if the risked harm were to eventuate. We are

not entitled to change the modality which applies to the citizen’s

judgment of the weight of conflicting values from would (modality of

possibility) to will (temporal modality).

Since we cannot equate a citizen’s hypothetical judgment with her

actual judgment (Feinberg’s “sham”) or with her future judgment (self-

defeatingness), we are again left looking for an argument that the

neutrality principle is consistent the paternalistic prohibition of

fully voluntary choices to engage in risky conduct which register an

irrational weighting of values.

Why this kind of argument won’t work

26

The responses to the prima facie conclusion canvassed so far attempt

to buy the compatibility of the neutrality principle with legal

paternalism in the irrational weighing case at the price of denying

that the irrationality at stake is a conflict between a citizen’s

actual evaluation of the risky activity and the hypothetical judgment

that he would make if that risk were realized. Instead of explaining

why a neutralist should regard that kind of conflict as licensing

legal paternalism, the arguments reconstruct the conflict as one

between “real” and “inauthentic” judgments or between present and the

future judgments. This kind of reconstructive strategy is not only

unprofitable but may well disguise what the conflict is about at a

fundamental level – a conflict between a person’s judgment about his

own well-being and what (in fact) serves his well-being27.

There is a more natural way of accounting for the intuition that legal

paternalism may be justifiable in situations where a person

voluntarily chooses to engage in a risky activity but would regret her

evaluation of the competing values if the risked injury occurred. That

is to say that the person’s hypothetical regret indicates that her

well-being would be set back, and she would suffer harm, if she is

injured by engaging in the risky activity28. The hypothetical regret

27 At this stage, we neither affirm nor deny that the conflict is really between an actual judgment and well-being, since if it is, legal paternalism in situation 3 type cases cannot be justified according to neutralism, and that is the proposition that we are questioning at the moment.

28 It is necessary to be quite precise to avoid terminological confusion here. Depending on our purposes, we might well say of someone who knowingly risked serious injury and who suffered the risked injury that she has been harmed by the injury, even though she does not regret engaging in the activity. In that case, the lack of regret does

27

simply operates as a heuristic or a rule of thumb. It indicates that

the person’s life would fare better were he not to engage in the

activity at all, despite his actual judgment at t1 that his life is

better for engaging in the activity. Hypothetical regret is a reason

for the state to enact a criminal prohibition because avoiding harm to a

citizen’s well-being is a reason for the state to enact a criminal

prohibition, even if the citizen disagrees. However, passing a

criminal law to prohibit a person from engaging an activity for the

reason that the person’s well-being will be better served if he

abstains from the activity (because he will not then suffer harm) in

the face of the person’s contrary judgment is forbidden by the

neutrality principle.

2. Reinterpret the neutrality principle

A different response to the prima facie conclusion starts from the

opposite end. Instead of struggling to interpret hypothetical

judgments about the weight of conflicting values as actual judgments,

which must be respected according the neutrality principle, this

response refines the neutrality principle.

So far we have adopted a natural interpretation of the neutrality

principle according to which it enjoins the state from denying the

truth of a citizen’s actual29 judgment about what will serve his well-

not make us withdraw the attribution of harm. See Appendix 1 for an explanation.

29 Use of “actual” is freighted with philosophical baggage. Here I employ “actual” to designate “the world we live in, whether past, present or future” as opposed to “possible worlds which are not our world, whether past, present or future”.

28

being. One way to accommodate the Dworkin cases of irrational weighing

of values within the scope of legitimate paternalistic criminal laws,

consistently with the neutrality principle, is to reinterpret the

neutrality principle.

The reinterpreted neutrality principle will have to state something

like the following:

Government may not enact any criminal prohibition for a reason:

(i) which presupposes the falsity of a citizen’s actual judgment about whether the

activity serves his well-being; or

(ii) which presupposes the falsity of the citizen’s hypothetical judgment about the

value of that activity, where the citizen’s actual judgment about whether the

activity serves his well-being conflicts with the judgment about the activity’s

value that the citizen would make if the harm risked by that activity were to

occur.

Suitably refined, the reinterpreted neutrality would make room for

legitimate criminal prohibition of self-injurious action chosen due to

an irrational weighing of values. However, should a neutralist agree

to this reinterpretation of the principle? Is such a reinterpretation

consistent with that principle’s animating concerns?

The neutrality principle is a derivative, rather than ultimate, principle

about the limits of government authority over citizens. It takes its

shape and content from the deeper value which (according to its

adherents) underlies and justifies it, namely the duty of government

29

to respect citizens as persons. As has already been noted in Section 3

above, the anti-perfectionist commonly holds that the duty of respect

has it that government can only respect its citizens if, other things

being equal, it does not contradict citizens’ actual judgments about

what is good for them. This is because a denial of the correctness an

adult citizen’s actual judgment about his good expresses a denial that

he possesses the rational capacities distinctive of personhood, so treats

him as less than a person.

We might try to justify the reinterpretation of the neutrality

principle by arguing that the duty of respect for persons is not as

uniform as this. Perhaps we can say that in certain cases where a

citizen’s choice is distorted by an irrational weighing of value,

denial by the state of citizen’s actual judgment about what will serve

her own good does not entail a denial of her capacity for rational self-

direction. Perhaps we can say that in those cases, the criminal law

aimed at protecting her from some self-injurious conduct merely denies

that she has actually exercised her rationality soundly on this occasion,

without implying anything about her capacity for rational self-

direction.

In my view, this is exactly what the consistent neutralist must say

about government’s duty of respect for citizens if he is to allow for

legal paternalism in the situation 3 type cases which exhibit an

irrational weighing of values. However, finessing the interpretation

of government’s duty of respect in order to make ground for a

reinterpretation of the principle of neutrality can only be a partial

response to the prima facie conclusion. It begs the question: why,

according to a neutralist, government does not disrespect its citizens

30

when it passes criminal laws designed to protect adults from self-

injurious choices, which are based on an irrational weighing of values

but does disrespect its citizens if it passes paternalistic criminal

laws to protect harmful choices which are based on other defects of

reasoning – such as errors in recognizing what is valuable?

3. Finessing government’s duty of respect

[TBC]

THE PROPOSITION: (1) WHERE A PERSON CHOOSES A HARMFUL OPTION DUE TO AN INCORRECT

FACTUAL BELIEF OR INSUFFICIENT SELF-CONTROL, THE LAW DOES NOT ALWAYS DISRESPECT HER BY

CRIMINALIZING IT; (2) THE LAW EXPRESS DISRESPECT IF CRIMINALIZES AN OPTION TO PROTECT A

PERSON FROM THE HARM OF CHOOSING MORALLY BAD OR VALUELESS OPTIONS. THAT IS BECAUSE

DENYING THE TRUTH OF THE PERSON’S JUDGMENTS ABOUT WHAT ACTIVITIES ARE VALUABLE

INVOLVES DENIAL OF A PERSON’S RATIONAL CAPACITIES

THE PUZZLE: WHAT BASIS IS THERE TO DISTINGUISH? WHY DOES THE PROHIBITION DENY A

PERSON’S RATIONAL CAPACITIES IN (2) BUT NOT (1)?

TWO POSSIBLE ANSWERS TO THE PUZZLE.

RESPONSE ONE

1. NO REGRET IN THE CASE OF MORAL HARM.

2. THE RELEVANCE OF REGRET: INDEPENDENCE IN MAKING VALUE JUDGMENTS;

3. NO VALUE JUDGMENTS BEING IMPOSED

TWO DOUBTS ABOUT THE SOUNDNESS OF THIS ARGUMENT

31

1. THE HYPOTHETICAL VALUE JUDGMENT IS NOT THE JUDGMENT THE PERSON ACTUALLY

MAKES WHEN SHE ACTS.

2. THE ARGUMENT ASSUMES THAT THE ACTUAL VALUE JUDGMENT CANNOT BE ATTRIBUTED

TO THE PERSON

EXAMINATION OF CONDITIONS OF ATTRIBUTING BELIEF OR JUDGMENT OF VALUE TO A

PERSON Cf. FRANKFURT (1988) – IDENTIFICATION AND EXTERNALITY

RESPONSE TWO WHETHER BEHAVIOUR EXPRESSES DISRESPECT FOR A PERSON IS NOT DETERMINED

BY ANALYSIS OF THE CONCEPT OF RESPECT BUT BY SOCIAL CONVENTION.

A POSSIBLE NEUTRALIST CLAIM: THERE IS A SOCIAL CONVENTION ACCORDING TO WHICH CRIMINAL

LAWS PASSED TO PROTECT PEOPLE FROM SELF-INJURING ACTIONS WHICH ARE CHOSEN AS A RESULT

OF FALSE FACTUAL BELIEFS OR DUE TO AN IRRATIONAL WEIGHING OF VALUES DO NOT EXPRESS

DISRESPECT. BUT LAWS WHICH AIM TO PROTECT COMPETENT ADULTS FROM MORALLY HARMING

THEMSELVES DO EXPRESS DISRESPECT.

ASSUMING THAT THERE IS SUCH A CONVENTION, WOULD THAT MAKE LEGAL PATERNALISM TO

PREVENT MORAL HARM UNJUSTIFIABLE IN PRINCIPLE?

1. THE LINK BETWEEN RESPECT AND SELF-RESPECT

2. THE SOCIAL BASES OF SELF-RESPECT IN SOME NEUTRALIST THEORIES – CF RAWLS

3. TO FIGURE IN AN ARGUMENT AGAINST THE JUSTIFIABILITY OF SOME LEGAL

PATERNALISM MUST THE CONVENTION GOVERNING EXPRESSION OF RESPECT ITSELF BE

REASONABLE?

a. No – if the overall argument is perfectionist.

b. Less clear if the overall argument is neutralist. Can one ask the question: does

this behavior truly disrespect X?

c. The social forms of respect and concept of respect (cf RAZ, VALUE, REASON &

ATTACHMENT)

32

APPENDIX 1 – Well-being and baselines

Judging a person’s well-being to be better or worse always requires a baseline

for comparison.

One can compare different periods of a person’s life, and judge them to be

better or worse for him. One can also compare a person’s entire life with the

way that life might have been but was not. There are other possible baselines

and the appropriateness of whichever baseline is selected will depend on the

purpose for which the judgment about well-being is to be used.

Harm is a set-back to a person’s well-being relative to the baseline that is

selected. It is common and appropriate to say of a mountaineer who voluntarily

runs the risks of injury in attempting to climb Everest, and who after

suffering frostbite which requires amputation of a limb, does not regret

having done so, that he was harmed. When we say this, we are using a temporal

baseline: his life at or after time t2 (the amputation) is worse than it was

at t1 before the amputation.

However, for the purpose of reasoning whether the state may justifiably enact

paternalistic criminal laws, we ought to evaluate well-being (and therefore

harm) over person’s entire life and select as the baseline the person’s life

as it would be absent the paternalistic criminal law. A form of paternalism

which advocates using criminal law to protect a person from a risked injury

even though his life would fare better if he engaged in the risky activity and

suffered the risked injury, would be much harder to justify. In other words,

for this purpose it is sensible to say that a person has not been

harmed through suffering an injury requiring amputation of a

crucial limb as a result of some daring feat of mountaineering,

if his life is still better than it would have been if he had

never been mountaineering in the first place.

33

Works cited

F. Buckley (2005) Just Exchange: A Theory of Contract

G. Dworkin (1972)

Paternalism

The Monist 56 pp. 64-84

R. Dworkin (1977) Taking Rights Seriously

R. Dworkin (2002) Sovereign Virtue: The Theory and Practice of Equality

J. Feinberg (1984) The Moral Limits of the Criminal Law, Volume 1: Harm to Others

J. Feinberg (1986) The Moral Limits of the Criminal Law, Volume 3: Harm to Self

J. Feinberg (1990) The Moral Limits of the Criminal Law, Volume 4: Harmless

Wrongdoing

H. Frankfurt

(1988)

The Importance of What We Care About: Philosophical Essays

J. Gardner (2007) Offences and Defences: Selected Essays in the Philosophy of the

Criminal Law

W. Quine (1980) From a Logical Point of View: Nine Logico-Philosophical Essays

J. Rawls (1971) A Theory of Justice

J. Raz (1998) Disagreement in Politics

34

American Journal of Jurisprudence 43 pp. 25-52

J. Raz (2000) Engaging Reason: On The Theory of Value and Action

D. Richards (1981) Rights and Autonomy

Ethics 92 pp. 3-26

T. Metz (2001) Respect for Persons and Perfectionist Politics

Philosophy and Public Affairs 40 pp. 417-442

J. Stanton-Ife

(2006)

The Limits of Law

Stanford Encyclopedia of Philosophy

D. F. Wallace

(2010)

Fate, Time and Language: An Essay on Free Will

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