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Paternalism means acting like seen from fathers or treating the other person as your child. In the current philosophy, it is defined as the act of a person to perform for the good of the other without their consent, just like the parents do for their children. However, the concept is controversial and ends in benevolence as the means are coercive (Mill, 2010). The idea of paternalism advances people's interests, for example in life, health, and safety, at the expense of them being liberal (Guttenplan, 1999). The paternalists have a notion that they can make some wise decisions for the people that they act upon. It is on that basis that the presumptions on the wisdom as well as the foolishness of people is dismissed sometimes. This is a temptation in every part of life where people have power over others. It is divisive in the criminal law and the state's concept of protecting the people and seeking their good. This is done coercively against their will through the criminal law.
Therefore, the harm principle allows the use of legal coercion where the individual actions are not confined to where the activities are not in confinement to their choices. Paternalism is applicable where the person's actions are limited. Paternal effects are the prima facie and done to the person with the reason that the work is right, even if the action is considered wrong or having a wrong aspect (Guttenplan, 1999). There is authorization by the principle of the paternalism of some of the use of coercive law that cannot be brought under the harm principle (Mill, 2010). In consideration of some cases, even if they are not necessarily legal, there are assumptions that the paternal intervention is justifiable. The most common cause is the case of children, which seems precise and legitimate.
When the children are caught doing some harmful actions, it is justifiable to use force, preventing them from harm. If one fails to avoid them, it may lead to a fatality, for instance, if one finds the child about to touch a live wire. A more problematic case is where the child is coerced to some benefits as required in their protection from harm. Some paternalism is, however, accepted here. The justification for paternalism coercion of the child is applicable because the children are not aware of the harm that may result or the potential benefits they are about to miss.
Paternalism offers protection to the people from themselves in a manner that their safety appears more important than their liberty. In contrast, the harm principle states that the limitation of freedom is only justifiable if there is the prevention of harm to other people and not on oneself. To be more precise, it states that the justification of coercion can only be in the prevention of injury to some unconsenting citizens and not prevention of damage where the person is contentful. The legal prohibitions are murder, rape, arson, and criminal legislation, which are areas that are consistent with the harm principle (Mill, 2010). The harm principle and legal paternalism differ in some ways. First is in the competent self-harm and the risk of self-harm. The other is in harm to consenting others as well as the harmless act. The harm principle calls for the toleration of the three acts while the paternalism calls for their regulation. If the consenting person does not fall victim, then the actions are considered victimless (Guttenplan, 1999). The harm principle requires that the victimless crimes be decriminalized, and all the paternalism are ended on the competent adults. There is a creation of a zone of privacy by the harm principle for the self-regarding acts where the people may do as they wish with no interference from the state even if the paternalist drives the motive.
The harm principle does not prevent all the paternalism. Still, it permits it on incompetence, for instance, in young children or mentally disabled individuals and those with the ability to decide being compromised by ignorance, deception, or having clouded faculties. In that instance, the consent to self-harm needs respect as it is not competent. In some cases, as will be illustrated, the harm principle allows the self-paternalism and the consensual paternalism. The legal system has paternalistic criminal prohibitions. Without that, the principal may never be allowed to operate in a country. For limiting the legal paternalism, harm principle leads the course. There is a need to agree on the harmful acts to the person, whether the consent is valid and the identification of simple actions.
Another case that we shall use as an example is the case where a person makes decisions or takes action under some emotional stress. For instance, John trying to slash the wrist after the son dies from an overdose on heroin, and the wife leaves, the house is burnt, and at the same time, he is fired from work. The example shows that he does that out of the stressful conditions that make him do some actions that he would not have made when sober (Mill, 2010). If the situation gets worse, then the paternalistic intervention can be justified. In this case, if the person's choices are compelled will provide other examples. If one is obligated to do an act that harmful to himself, then a person intervening may be justified in the prevention of the law. The compulsion is said to result from some sorts, from the brain malfunction through some neurotic pressures and great temptations.
An example of the case where a person is compelled to doing a harmful act when subject to undue influence is illustrated in the example of the South Rhodesian air hosted who was caned from the consent of the employer or lose her job for violating the company regulations. The lady would not consent to do such a thing, and she would subject to the threat of loss of pay. The employer, in this case, was convicted of assault. The motivation in the case was paternalistic.
Informed people often disagree on the instance when the act harms the actor only. For example, whether the valid consent of the recreational drug users will cater to the people that are damaged as a result of the drug use (Mill, 2010). For instance, if the motorcycle rider consents to the risk of riding without a helmet suffer a traumatic head injury, it may lead to harm of other people who had no consent, for instance, the financial dependency, the public hospital, and ambulance services as well as the highway patrol. The act may harm a third party as a result, which may lead to increased insurance fees (Guttenplan, 1999). The application is referred to as the public charge argument in coercion. It cannot be regarded as paternalistic as it is directed against harm to unconsenting others, and it is not against self-harm. This illustrates that every aspect of life should be regulated by law without the violation of the harm principle justifying all the paternalism.
The harm principle requires that the competent consents should be taken as a priority over the benevolent legislative limits on liberty. It is a paradox that entails the support that is referred to as consensual paternalism or what is referred to as self-paternalism. If a person can make a living out of their sound mind, being asked to get coerced for their good is a way of making them incompetent, and they would be paternalistic themselves (Mill, 2010). In the criminal law for democracies, paternalism is referred to as self-paternalism.
The legal paternalism consists of the restriction on freedom and the individual choices to offer protection to themselves. That is the special paternalism that comprises of interference with the people's freedom and is justified by the appeals. Paternalism is warranted by a call to the happiness and value of the person. That leads to the conception of the category of offenses that are justifications for the protection of individuals from injury or harm that is caused through behaviors constituting life threats and in physical integrity. The question of criminal paternalism is raised in the wonder of whether the fact prevents someone from causing harm themselves as a justification in the interference of the decisions and actions.
In conclusion, although the harm principle is justifiable in the restriction of freedom of the agents, many unresolved moral questions are left disputed. For instance, if there is an agreement that is reached disallowing the paternalism intended to the prevention of self-harm, the reason people are seen disagreeing on the constituted on self-harm and the valid consent. The reasonable disagreements remain a consented issue, as shown by contemporary debate. In liberal societies, paternalist policies are controversial (Mill, 2010). They challenge the fundamental principles stating that individuals should exercise sovereignty over the rest, in the judgment on the actions of their interest. They, however, have the potential to harm more than they can good.
It is, therefore, essential for the policies to undergo scrutiny when it comes to the legitimacy and efficacy of the application. For instance, if the legislator has a wish of prohibiting the riding of motorcycles without wearing a helmet, they may apply a paternalistic or non-paternalistic rationale. They become paternalistic if they believe that that the act is self-regarding, and they would be paternalistic if they accept the public charges in the argument. They then avoid paternalism and the actions that are under the harm principle. There are also many other ways we can do what the paternalists do without being paternalistic. That can be achieved by widening the definition of harm and narrowing the validity of consent. The fact, however, does not make an argument for or against the paternalism vacuous. The laws that protect the citizens may be made one non-representative function, class, block, or the electoral process and sometimes maybe an outcome of a distorted election process.
Guttenplan, D. D. (1999). Is a Holocaust Skeptic Fit to Be a Historian?. The New York Times, 26, B9.
Mill, J. S. (2010). The basic writings of John Stuart Mill: On liberty, the subjection of women, and utilitarianism. Modern Library.
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