Law and Philosophy 10 (1):29 - 49 (1991)

Jonathan Schonsheck
Le Moyne College
Typically the justification of criminal statutes is based on "liberty-limiting principles" -- e.g., the Harm Principle, the Offense Principle, Legal Paternalism, Legal Moralism, etc. Two philosophers of the criminal law, however -- Richard J. Arneson and Cass R. Sunstein -- take an entirely different tack. Both countenance the use of the criminal law to foreclose one's future options, seeking to preserve one's "true self" from the temptations of one's baser desires. (For reasons which become clear, I call this "community self-paternalism".) In this paper, I take a careful look at "community self paternalism"; scrutiny reveals that this proposed justification of criminalization is quite different from its initial appearance. Revealing its true character dispels much of its initial appeal. I then argue for its rejection; of necessity, "community self-paternalism" treats some individuals as means merely, and not as ends in themselves
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DOI 10.1007/BF00144294
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