Paternalism Essay ⋆ Criminal Justice Essay Examples ⋆ EssayEmpire

Paternalism describes a particular type of intervention in an individual’s life. As the name suggests it implies a caring, fatherly, parental relationship, in which the paternal authority carrying out the intervention is motivated by a sense of responsibility that echoes the relationship between parents and their offspring. From the perspective of the paternalist, the intervention is at least partly done in the best interests of the recipient. Critics argue that paternalism can be patronizing, condescending, overly moralistic, and far too unwilling to allow individuals to decide what is best for themselves. It is in this context that the term nanny state is invoked to criticize what is perceived to be an overbearing government. However, paternalism has become more widely accepted, and strong antipaternalistic sentiments have become correspondingly more marginal. This essay provides an overview of the different ways in which paternalism is debated and manifested within criminal justice contexts.

There is an assumption that paternalism involves government or state authority. However, paternalism also relates to softer forms of authority, such as university lecturers and administrators, health practitioners, and a whole array of recreation providers within civil society. Indeed, an important point made by John Stuart Mill in his 1859 publication On Liberty, is that people are compelled to act against their wishes as much, if not more, by tradition and popular will as they are by tyrannical government authorities or dictators. In this respect paternalism can be argued for both explicitly in relation to particular situations, but also implicitly as an underlying influence shaping relationships in society between those in a position of authority and individuals who fall under such authority.

Another consideration relates to varying degrees of paternalism. John Stuart Mill’s harm principle is explicitly antipaternalistic and deliberately excludes legitimizing interventions by authorities on moral grounds or on the basis that those in authority know what is best for the person whose liberty is being interfered with. Mill conceptualizes the individual as strong, independent, rational, and autonomous. Mill’s individual would undoubtedly find the majority of interventions into his or her life unwarranted, unnecessary, and unwanted. He or she would not wish to be seen as fragile or in need of help from anyone.

The weakness of Mill’s argument, for all its merits, is that his conceptualization of the individual seems out of kilter with reality. Very few actual individuals are as strong, independent, rational, or autonomous as Mill’s idealized individual. Real people are much more likely to need help and support, if not all the time then at least during times of crisis. Increasingly, over time, Mill’s harm principle has been challenged and the idealized conception of the individual has become someone who is weaker, more dependent on the support of others; their rationality is more tempered by emotion, spirituality and other forms of reasoning, and they are generally needier. The individual today is much more likely to appreciate victim support, rather than see it as an infringement as Mill’s individual undoubtedly would. Paternalism over time has become increasingly acceptable.

Different aspects of Mill’s antipaternalistic standpoint have been challenged and questioned. For example, to what extent can it be assumed that when adults consent to engage in immoral or dangerous activities that they understand fully to what are they consenting. Circumstantial misfortune can lead people to do all sorts of things that they would not choose to do in an ideal situation. Victims of domestic abuse do not “choose” to stay within violent relationships from a position of strength. They do so because they perceive it to be the best choice available to them.

Individuals have different opportunities in life and are endowed with different natural attributes. Consent is a relative concept and choice is always contextualized. To simply say that someone has chosen a particular lifestyle or that they have consented to engage in certain activities is to ignore the varying degrees of vulnerability that explains why this person, as opposed to that person, has “consented” to be a victim of abuse, is suicidal, or engages in prostitution. Increasingly, individuals with mental health problems populate U.S. prisons. These individuals clearly do not fit Mill’s conception.

It is very difficult for a person to break out of certain lifestyles. Heroin users, for example, might start taking narcotics as fully rational individuals but over time become driven much more by their addiction than by their capacity to reason. Paternalism is promoted in such scenarios as a short-term denial of individual freedom in order to reestablish the individual’s long-term capacity to be free and autonomous.

There are clearly arguments in favor of protecting and supporting people in these situations, and even John Stuart Mill allowed for a degree of paternalism under certain circumstances. He uses the example of a man who is about to cross a bridge that is not safe. The man does not know that the bridge is unsafe. Mill acknowledges that it would be appropriate to prevent the man from using the bridge, against his will, until he understood the danger involved.

Such an intervention is a soft or weak form of paternalism that deals with an individual’s clear lack of perspective, understanding, and/or knowledge of facts that are pertinent to a particular scenario. Importantly, however, if the man replies that he is fully aware of the decrepit state of the bridge and crossing it is the means by which he intends to commit suicide, then a soft or weak form of paternalism would not prevent him from killing himself. Hard or strong forms of paternalism, on the other hand, state that a person should be prevented from doing something that is clearly harmful or immoral, irrespective of whether the person is fully aware of the harm and/or immorality of the act, and irrespective of the individual’s will.

Paternalism informs debates within criminal justice contexts in four important ways. First, it is concerned with the welfare and protection of the most vulnerable sections of society. Child protection is the most obvious, and least contentious, example in which paternalism is promoted. It also features within domestic violence contexts and in tackling racially motivated offenses. In each case a vulnerable community is identified and given additional protection through paternalistic measures. Second, paternalism is used on moral grounds to challenge behaviors that are deemed to be immoral. Prostitution, pornography, and recreational drug use can all fall under this category (although paternalistic interventions in these matters could also be driven by welfare concerns). Third, paternalism features prominently in “sanctity of life” issues, such as euthanasia, abortion, capital punishment, and suicide. This is a particular form of moral paternalism that emphasizes the intrinsic value of life. Finally, paternalism acts as an overarching influence underpinning all aspects of the criminal justice system and the way in which society approaches law and order matters. Paternalism in this respect supports legal moralism and a more general level of governmental intrusion into people’s lives.

Bibliography:

DeMarneffe, P. “Avoiding Paternalism.” Philosophy and Public Affairs, v.34 (2006).
Dworkin, G. “Moral Paternalism.” Law and Philosophy, v.24/3 (2005).
Husak, Douglas. “Legal Paternalism.” In The Oxford Handbook of Practical Ethics, Hugh LaFollette, ed. New York: Oxford University Press, 2003.
Kleinig, John. Paternalism. Totowa, NJ: Rowman & Allanheld, 1983.
Mill, J. S. On Liberty. Mineola, NY: Dover, 2002.

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