This paper scrutinizes the tension between individuals’ rights and paternalism. I will argue that no normative account that includes rights of individuals can justify hard paternalism since the infringement of a right can only be justified with the right or interest of another person, which is never the case in hard paternalism. Justifications of hard paternalistic actions generally include a deviation from the very idea of having rights. The paper first introduces Tom Beauchamp as the most famous contemporary hard paternalist (...) by outlining his moral theory (principlism) and showing why it, as it stands, has to allow for hard paternalism. Secondly, the paper focuses on the notion of rights within principlism. I will employ traditional theories of rights to make sense of rights in principlism. Unfortunately, this attempt fails. In the third part, then, I claim that rights can only be limited with reference to the rights or interests of others. This structure is the very point of rights, it is their bite. I will argue for this claim and show its implications. The most important implication is that not only principlism, but every normative theory that includes rights of individuals, has to abolish hard paternalism. (shrink)

According to a number of influential views in penal theory, 1 one of the primary goals of the criminal justice system is to rehabilitate offenders. Rehabilitativemeasures are commonly included as a part of a criminal sentence. For example, in some jurisdictions judges may order violent offenders to attend anger management classes or to undergo cognitive behavioural therapy as a part of their sentences. In a limited number of cases, neurointerventions — interventions that exert a direct biological effect on the brain (...) — have been used as aids to rehabilitation, typically being imposed as part of criminal sentences, separate treatment orders, or conditions of parole. Examples of such interventions include medications intended to attenuate addictive desires in substance-abusing offenders and agents intended to suppress libido in sex offenders.This chapter reviews some of the ethical issues raised by the use of neurointerventions as aids to rehabilitation. (shrink)

ZusammenfassungEs ist ein Standard-Verfahren der Medizinethik, auf die Möglichkeit des Missbrauchs solcher Instrumente hinzuweisen, die im lege-artis-Gebrauch legitim sein können. Ein etabliertes Instrument der medizinischen Praxis sind paternalistische Handlungen, die bei geringer Reichweite individueller Entscheidungskompetenz, etwa bei Minderjährigen, verantwortliches Handeln absichern sollen. In der bisherigen Debatte wird Paternalismus als Problem eines ungerechtfertigten oder übermäßigen Gebrauchs diskutiert. Bislang erscheint in der medizinethischen Paternalismus-Debatte das Problem des scheinbaren Paternalismus zu wenig reflektiert. Auch die Thematik der sexualisierten Gewalt gegen Minderjährige im medizinischen Setting (...) ist bisher wenig beachtet worden. Für diese spezifische Form der Gewalt gibt es verschiedene Ermöglichungsbedingungen. Eine wichtige liegt in der Akzeptanz paternalistischer Handlungen im medizinischen Kontext. Denn ein scheinbarer Paternalismus im Zusammenhang mit sexualisierter Gewalt gegen Minderjährige profitiert von der Praxis des passageren Übergehens des aktuellen Willens eines Kindes. Der prominente Fall Larry Nassars, der als Teamarzt der US-Kunstturnerinnen in hunderten Fällen junge Patientinnen sexualisierter Gewalt ausgesetzt hat, macht auf die Möglichkeit sexualisierter Gewalt durch medizinisches Personal aufmerksam. Geht es in der Paternalismus-Debatte um die Frage, in welchen Zusammenhängen Paternalismus problematisch oder unproblematisch ist, so trägt diese Studie den Problemaspekt der Täuschung im Zusammenhang mit sexualisierter Gewalt bei. Sie leistet damit einerseits einen Beitrag zur Thematisierung sexualisierter Gewalt im klinischen Kontext, und sie trägt zum anderen zur medizinethischen Diskussion des Paternalismus bei, die nicht von der Möglichkeit des Schein-Paternalismus absehen sollte. Unter Schein-Paternalismus oder fingiertem Paternalismus wird hier eine Haltung und Praxis verstanden, die in der Gestalt eines Paternalismus eigene Interessen des Agierenden zum Schaden der in Abhängigkeit befindlichen Person verfolgt und Fürsorgepflichten ignoriert. Denn die kindliche Gewöhnung an die Unterordnung des eigenen Willens und Körpers im asymmetrischen klinischen Kontext kann dazu genutzt werden, fingierten Paternalismus zu etablieren. Die Rede vom Schein-Paternalismus soll dabei aber nicht darüber hinwegtäuschen, dass die Grenzziehung zwischen Paternalismus und Nicht-Paternalismus in der Praxis ebenso komplex ist wie diejenige zwischen körperlich-asexueller und körperlich-sexueller Gewalt. Ein präzises und transparentes lege-artis-Modell des Paternalismus soll hier als Basis für die Prävention sexualisierter Gewalt im klinischen Kontext diskutiert werden. Methodisch basiert diese Arbeit auf einer Auswertung der interdisziplinären Fachliteratur zur sexualisierten Gewalt im klinischen Kontext und zum Paternalismus. Es folgt dann eine Zusammenfügung der so gewonnenen Erkenntnisse, sodass am Ende eine komplexere Aussage AB über das Verhältnis von sexualisierter Gewalt und Schein-Paternalismus steht. (shrink)

Mobile health devices pose novel questions at the intersection of philosophy and technology. Many such applications not only collect sensitive data, but also aim at persuading users to change their lifestyle for the better. A major concern is that persuasion is paternalistic as it intentionally aims at changing the agent’s actions, chipping away at their autonomy. This worry roots in the philosophical conviction that perhaps the most salient feature of living autonomous lives is displayed via agency as opposed to patiency—our (...) lives go well in virtue of what we do, rather than what happens to us. Being persuaded by a device telling us how to conduct our lives seemingly renders the agent passive, an inert recipient of technological commands. This agential bias, however, has led to a marginalization of patiential characteristics that are just as much part of our lives as are agential characteristics. To appreciate the inherent interlocking of acting and being acted upon, it is vital to acknowledge that agency and patiency are correlates, not mutually exclusive opposites. Furthermore, it is unclear whether an action can only count as agential so long as its causes are internal. Drawing on the extended mind and extended will framework, I argue that mHealth applications merely serve as volitional aids to the agent’s internal cognition. Autonomously set goals can be achieved more effectively via technology. To be persuaded by an mHealth device does not mainly—let alone exclusively—emphasize patiency; on the contrary, it can be an effective tool for technologically enhancing agency. (shrink)

Higher courts sometimes assess the constitutionality of law by working through a concrete case, other times by reasoning about the underlying question in a more abstract way. Prior research has found that the degree of concreteness or abstraction with which an issue is formulated can influence people's prescriptive views: For instance, people often endorse punishment for concrete misdeeds that they would oppose if the circumstances were described abstractly. We sought to understand whether the so-called ‘abstract/concrete paradox’ also jeopardizes the consistency (...) of judicial reasoning. In a series of experiments, both lay and professional judges sometimes reached opposite conclusions when reasoning about concrete cases versus the underlying issues formulated in abstract terms. This effect emerged whether participants reasoned with broad principles, such as human dignity, or narrow rules, and was largest among individuals high in trait empathy. Finally, to understand whether people reflectively endorse the discrepancy between abstract and concrete resolutions, we examined their reactions when evaluating both, either simultaneously or sequentially. These approaches revealed no single pattern across lay and expert populations, or exploratory and confirmatory studies. Taken together, our studies suggest that empathic concern plays a greater role in guiding the judicial resolution of concrete cases than in illuminating judges' professed standards—which may result in concrete decisions in violation of their own abstract principles. (shrink)

If it is true, as suggested by Sir Michael Marmot and other researchers, that status impacts health and therefore accounts for some of the social gradient in health, then it seems to be the case that it would be possible to bring about more equality in health by equalizing status. The purpose of this article is to analyze this suggestion. First, we suggest a working definition of what status precisely is. Second, following a luck egalitarian approach to distributive justice, we (...) consider whether and to which extent individuals are responsible themselves for their position in a status hierarchy. Third, we consider the contours of a difficult question, namely which political measures are feasible in order to reduce health-affective inequalities in status and fourth, whether or to what extent such measures are legitimate. We argue that on the basis of these considerations, we have at least some prima facie reasons to counter (at least some) status inequalities in order to equalize health. (shrink)

Many ethics instructors turn to peculiar examples and cases to highlight ethical concerns about autonomy and collective goods. While these efforts are respectable, they lamentably reinforce the valorization of independence and the opposition of individuality to collectivity that are too prevalent in ethics today. Attending to the event of pregnancy would help overcome these troubles. By concentrating on pregnancy, we can better appreciate the dependence that is integral to the human experience, the discrete value of each individual, the possible noncompetition (...) between individual and society, and the importance of appreciating the sources of our existence. Religious ethicists would do well to think more about pregnancy, a condition which is sui generis and yet also illustrative of the fundamental interdependence of human beings. (shrink)

ABSTRACTThe article uses the recent U.S. Supreme Court decision in the same-sex marriage caseObergefell v. Hodgesas the springboard for a general enquiry into the nature and existence of a constitutional right to liberty under the American Constitution. The discussion is divided into two main parts. The first examines the meaning and the justifiability of there being a moral right to liberty as a matter of political philosophy. Two such rights are distinguished and defended: first, a right not to be coerced (...) by the state when the state is motivated by improper reasons ; and second, a right not to be coerced by the state when there are insufficient justifying reasons for the state to do so, irrespective of how such state coercion may be motivated. Neither right is regarded as “absolute,” and so it is morally permissible for the state to override such rights in certain circumstances. The second part of the article examines the distinct and additional considerations that must be taken into account when these two moral rights to liberty are fashioned into corresponding legal rights under American constitutional law. Both such rights survive the transformation, but each becomes altered somewhat in its content. This legal transformation includes recognition of the nonabsolute nature of moral rights, such recognition taking the form of some doctrine of “compelling state interests.” The discussion in these two main parts of the article is prefaced with a defense of the article's use of political philosophy to inform constitutional law, a defense motivated by Chief Justice Robert's denunciation of such an approach to constitutional law in his opinion inObergefell. (shrink)

According to the influential disrespect account of what paternalism is, and why it is wrong, paternalism involves an anti-egalitarian, disrespectful attitude on the part of the paternalist: X (the paternalist) assumes an attitude of superiority when interfering in Y's matters for Y's good. Pace this account, the article argues that an important, although somewhat overlooked, form of paternalism is not, all things considered, insulting. This form of paternalism focusses on people's occasional lack of appropriate self-respect or their failure to see (...) themselves as equals or to stand vis-à-vis others as such. (shrink)

Who should decide how a machine will decide what to do when it is driving a car, performing a medical procedure, or, more generally, when it is facing any kind of morally laden decision? More and more, machines are making complex decisions with a considerable level of autonomy. We should be much more preoccupied by this problem than we currently are. After a series of preliminary remarks, this paper will go over four possible answers to the question raised above. First, (...) we may claim that it is the maker of a machine that gets to decide how it will behave in morally laden scenarios. Second, we may claim that the users of a machine should decide. Third, that decision may have to be made collectively or, fourth, by other machines built for this special purpose. The paper argues that each of these approaches suffers from its own shortcomings, and it concludes by showing, among other things, which approaches should be emphasized for different types of machines, situations, and/or morally laden decisions. (shrink)

The Significant Interest view entails that even if there were no medical reasons to have access to genetic knowledge, there would still be reason for prospective parents to use an identity-release donor as opposed to an anonymous donor. This view does not depend on either the idea that genetic knowledge is profoundly prudentially important or that donor-conceived people have a right to genetic knowledge. Rather, it turns on general claims about parents’ obligations to help promote their children’s well-being and the (...) connection between a person’s well-being and the satisfaction of what I call their “worthwhile significant subjective interests.” To put this view simply, the fact that a donor-conceived person—who knows she is donor-conceived—is likely to be very interested in acquiring genetic knowledge gives prospective parents a weighty reason to use an identity-release donor. This is because parents should promote their children’s well-being through the satisfaction of their children’s worthwhile significant interests. (shrink)

Legal restrictions of the right to self-determination increasingly pretend to be compatible with the liberal concept of autonomy: they act upon a ‘soft’ or autonomy-orientated paternalistic rationale. Conventional liberal critique of paternalism turns out to be insensitive to the intricate normative problems following from ‘soft’ or ‘libertarian’ paternalism. In fact, these autonomy-oriented forms of paternalism could actually be even more problematic and may infringe liberty rights even more intensely than hard paternalistic regulation. This paper contributes to the systematic differentiation of (...) soft and hard paternalism by discussing the (legal) concept of autonomy and elaborates the moral and legal limits of autonomy-orientated paternalism. (shrink)

In recent years, many scholars have offered innovative accounts of social categories such as gender, race, and disability. By contrast, comparatively little work has been done on the category of children. The goal of our paper is to offer a new account of what children are. We start by discussing the two main accounts that have been put forward so far in the literature: naturalistic accounts and normative accounts. According to the former, to be a child is a matter of (...) possessing, or lacking, some ‘natural’ and ‘objective’ properties. According to the latter, to be a child is to possess a particular normative status. We argue that both naturalistic and normative accounts are subject to a variety of objections. We then propose our own social constructivist account. According to it, to be a child in any given society is to be regarded by the dominant ideology of that society as the target of a set of broadly paternalistic norms, in virtue of the possession of a cluster of natural properties such that, according to the dominant ideology of that society, it is justified to subject that individual to such norms. We conclude our paper by showing that our account meets the criteria of success for an account of what it is to be a child and by addressing some objections. (shrink)

This paper analyses J.S. Mill's theory on the relationships between individual autonomy and State powers. It will be argued that there is a significant discrepancy between Mill's general liberal statements aimed to secure individual largest possible autonomy and the specific examples which provide the government with quite wide latitude for interference in the public and private spheres. The paper outlines the boundaries of government interference in the Millian theory. Subsequently it describes Mill's elastic paternalism designed to prevent people from inflicting (...) harm upon others as well as upon themselves, from soft paternalism on issues like compulsory education to hard paternalism on very private matters such as marriage, having children, and divorce by consent. (shrink)

Many researchers from robotics, machine ethics, and adjacent fields seem to assume that norms represent good behavior that social robots should learn to benefit their users and society. We would like to complicate this view and present seven key troubles with norm-compliant robots: (1) norm biases, (2) paternalism (3) tyrannies of the majority, (4) pluralistic ignorance, (5) paths of least resistance, (6) outdated norms, and (7) technologically-induced norm change. Because discussions of why norm-compliant robots can be problematic are noticeably absent (...) from the robot and machine ethics literature, this paper fills an important research gap. We argue that it is critical for researchers to take these issues into account if they wish to make norm-compliant robots. (shrink)

There is widespread opinion that, notwithstanding deviations, the political life of humanity on a large scale is on the path of progress, and humans are becoming freer and more enlightened with time. I am going to contend with this opinion, namely, with a part of it telling that the prevailing mass of the people strives to achieve more freedom and enlightenment. On the opposite, freedom, individual independence, and political rights are of minor importance to the mass. The ideology of liberalism (...) in its classical form, as created by John Locke, Immanuel Kant, John Stuart Mill and others, yields to the pressure of the ideology of state paternalism. The pressure comes not only from above ; the people also welcome more paternalism. They appear not to value their individual freedom and independence, and they are inclined to give them up voluntarily to some mighty organization such as the state in exchange for care, protection and leadership. Liberalism has played an important role in the development of human civilization and the formation of the Western world, but new ideologies and political practices are pushing it out of people’s minds. For the author, as adherent of classical liberalism, this is unfortunate. However, I wish to treat this issue realistically, even if the facts conflict with my own convictions and desires. (shrink)

In this book I argue that school integration is not a proxy for educational justice. I demonstrate that the evidence consistently shows the opposite is more typically the case. I then articulate and defend the idea of voluntary separation, which describes the effort to redefine, reclaim and redirect what it means to educate under preexisting conditions of segregation. In doing so, I further demonstrate how voluntary separation is consistent with the liberal democratic requirements of equality and citizenship. The position I (...) defend is not opposed to integration but rather is a justified response to the daily experience of frustration and disappointment with a system that has failed members of marginalized groups for too long. I argue that most voluntary separation experiments in education, far from being motivated by a sense of racial, cultural or religious exclusion, are in fact driven among other things by a desire for a quality education, not to mention community membership and self respect. As such, voluntary separation represents a morally robust pragmatic strategy that is able to answer liberal challenges concerning involuntary stratification, ethnocentrism and democratic deliberation. (shrink)

In adolescent sex education, the contemporary debate has developed into two camps: the paternalistic view and the liberal view. I argue that both sides of the camp have been too focused on actions and behavior and are assuming a heteronormative background. This dissertation argues that the way to take care of the self is through exercises, techniques, self-discipline, and self-cultivation—what the ancient Greeks called áskēsis. By applying áskēsis to sex education, students will gain the character of taking care of the (...) sexual self and have a robust outlook of themselves via sexuality. After looking at countless syllabi, I reduce three different moral foundations that underlie existing sex education programs. The first are paternalistic sex education programs. However, empirical research shows that gender discrepancies and heteronormativity are presented as inevitable. The second model is what I call liberal-consequentialist sex education, which emphasizes avoiding negative consequences such as unwanted pregnancies and STIs. This model is an improvement since it empowers students with essential knowledge such as anatomy and sexual mechanics. But this model is still limited because it fails to discuss many forms of sexuality and gender while embracing heteronormativity. The third model is what I call liberal-deontological sex education, which teaches sexual consent. While this model definitely improves on the previous two models, there is still something lacking. Most importantly, this model fails to address the gender inequality at the root of the problematic power dynamics. For example, if to receive consent is to garner a yes, then all men have to do is manipulate woman to get that yes. These three models focus on a person’s behavior, but sexuality is much deeper. Therefore, we need another model that implements áskēsis. For simplicity, I analyze áskēsis to three components: the sexual emotions, the sexual mind, and the sexual body. A comprehensive sex education program helps students train the moral sexual character by disciplining whether those components are coming from their authentic character, or if these ideas were simply societal expectations. This model, thereby, helps students question their own social mores and help formulate their sexual subjectivity. (shrink)

Several authors have recently advocated a so-called new case for paternalism, according to which empirical findings from distinct decision sciences provide compelling reasons in favour of paternalistic interference. In their view, the available behavioural and neuro-psychological findings enable paternalists to address traditional anti-paternalistic objections and reliably enhance the well-being of their target agents. In this paper, I combine insights from decision-making research, moral philosophy and evidence-based policy evaluation to assess the merits of this case. In particular, I articulate and defend (...) three complementary arguments that, I claim, challenge even the best available calls for such case. In doing so, I identify the main justificatory challenges faced by the new paternalists and explicate the implications of these challenges for the ongoing philosophical debate about the justifiability of paternalistic interference. (shrink)

This article examines John Stuart Mill's position as the principal historical opponent of legal moralism. I argue that inattention to the particular form of his opposition to legal moralism has muddied the interpretation of his liberty principle. Specifically, Mill does not endorse what I call the illegitimacy thesis, according to which appeals to harmless wrongdoings, whether or not they exist, are illegitimate in the justification of legal interference.