Liberalism's case against legal paternalism
Description
Any liberal theory needs at least a strong prima facie case against hard paternalism, but the contours of the precise connection between liberalism and anti-paternalism, and the types of paternalism it forbids, have not been explored in sufficient depth. I argue that an ultimately preferable form of liberalism must also have principled anti-paternalistic implications. I defend the moral requirement of all agents to justify their interferences with one another. This argument proceeds from the fundamental premise that agents conceive of themselves and one another as moral beings with normative commitments violation of which naturally elicits a sense of wrongfulness. One implication of this conception of moral agency is that we ought to justify our interferences with one another. I argue that interferences with a person's actions are justifiable if and only if that person is rationally committed to accepting the premises backing the interferences I then defend the superiority of Gerald Gaus's justificatory liberalism over the political liberalism of John Rawls. I elaborate on several of the latter view's major problems, two of which are: (1) it only allows reasonable comprehensive doctrines (not contestable beliefs) to serve as defeaters of competing considerations in public justification, and (2) it limits the public justificatory burden only to laws and policies pertinent to constitutional essentials but not to matters of ordinary legislation. Given political liberalism's limitation of justificatory burdens to comprehensive doctrines, I argue that no such reasonable comprehensive doctrine can function in an argument that blocks support for legal paternalism. In particular, political liberalism is susceptible to neutral paternalism as a viable candidate for liberal support. Justificatory liberalism can defeat the appeal to neutral paternalism. Given the strong version of justification and the need only for reasonable beliefs or principles to serve as defeaters of neutral paternalism, a rational agent can acknowledge that performing his action A is irrational, without that acknowledgment entailing that he is committed to accepting neutral paternalism in light of performing A. This is because the agent can appeal to self-responsibility, rather than deference to the paternalist, as a corrective for any irrational actions he might perform