Counting the Dragon's Teeth and Claws: the Definition of Hard Paternalism

52 Pages Posted: 4 Apr 2003 Last revised: 6 Nov 2013

Thaddeus Mason Pope

Mitchell Hamline School of Law; Queensland University of Technology - Australian Health Law Research Center; Saint Georges University; Alden March Bioethics Institute

Abstract

In 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.

Keywords: paternalism, definition, Dworkin, Feinberg, autonomy

JEL Classification: I18, K10, K14, K30, K32

Suggested Citation

Pope, Thaddeus Mason, Counting the Dragon's Teeth and Claws: the Definition of Hard Paternalism. Georgia State University Law Review, Vol. 20, No. 3, Spring 2004 . Available at SSRN: https://ssrn.com/abstract=387361

Thaddeus Mason Pope (Contact Author)

Mitchell Hamline School of Law ( email )

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HOME PAGE: http://www.thaddeuspope.com

Queensland University of Technology - Australian Health Law Research Center ( email )

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Brisbane, Queensland 4000
Australia

Saint Georges University ( email )

West Indies
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HOME PAGE: http://www.thaddeuspope.com

Alden March Bioethics Institute ( email )

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MC 153
Albany, NY 12208
United States

HOME PAGE: http://www.thaddeuspope.com

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