Is Public Health Paternalism Really Never Justified? A Response to Joel Feinberg

87 Pages Posted: 8 Sep 2006 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 the preeminent scholarly legal treatise on paternalism, The Moral Limits of the Criminal Law: Harm to Self, Joel Feinberg argues that hard paternalism is never justified because it is superfluous; all reasonable restriction of self-regarding conduct can be justified on (more palatable) soft paternalistic grounds.

In this article, I argue that Feinberg's strategy seems to work only because he "stretches" soft paternalism to justify liberty limitation that is properly described as hard paternalism. I expose Feinberg's strained appeals, and argue for honesty and transparency regarding the bases for paternalistic liberty limitation. If the rationale for public health restrictions on liberty is hard paternalism, then that normative appeal should not be masked. Rather it should be made explicit so that it can be subjected to constructive criticism and debate.

Keywords: paternalism, public health, Feinberg, liberty, autonomy

JEL Classification: I18, K32

Suggested Citation

Pope, Thaddeus Mason, Is Public Health Paternalism Really Never Justified? A Response to Joel Feinberg. Oklahoma City University Law Review, Vol. 30, pp. 121-207, 2005. Available at SSRN: https://ssrn.com/abstract=928884

Thaddeus Mason Pope (Contact Author)

Mitchell Hamline School of Law ( email )

875 Summit Avenue
Room 320
Saint Paul, MN 55105
United States
651-695-7661 (Phone)

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

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

2 George Street
Brisbane, Queensland 4000
Australia

Saint Georges University ( email )

West Indies
Grenada

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

Alden March Bioethics Institute ( email )

47 New Scotland Ave
MC 153
Albany, NY 12208
United States

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

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