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


n 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\u27s strategy seems to work only because he stretches soft paternalism to justify liberty limitation that is properly described as hard paternalism. I expose Feinberg\u27s 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

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Mitchell Hamline School of Law

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