Feinberg's anti-paternalism and the balancing strategy

Legal Theory

Volumn 11, Issue 3, 2005, Pages 193-212

  Malm, Heidi ^a  

^a LOYOLA UNIVERSITY CHICAGO   (United States)

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EID: 50849131908     PISSN: 13523252     EISSN: 14698048     Source Type: Journal    
DOI: 10.1017/S1352325205050093     Document Type: Article

References (15)

1. JOEL FEINBERG, HARM TO SELF (1986), at 55.
2. In addition to HARM TO SELF (1986), the four-volume work includes HARM TO OTHERS (1984), OFFENSE TO OTHERS (1985), and HARMLESS WRONGDOING (1988), all published by Oxford University Press.
3. Russ Shafer-Landau, Liberalism and Paternalism. 11 LEGAL THEORY 169-191 (2005).
4. “Voluntary” is here a broad concept that includes a variety of factors, such as that the agent is aware of what she is choosing/doing, knows the risks and benefits, is mentally able at the time of the choice to weigh the risks and benefits, etc. Thus someone who reached for the white powdery substance on the table and put it in her coffee would not be voluntarily choosing to put arsenic in her coffee if she mistakenly thought the substance was sugar.
5. As Feinberg explains, protecting an agent from a choice she did not voluntarily make is, in essence, no different from protecting an agent from a choice someone else made for her. In neither case is one protecting an agent from her true, autonomous self. For a more detail explanation of these points, see FEINBERG, “Voluntary” is here a broad concept that includes a variety of factors, such as that the agent is aware of what she is choosing/doing, knows the risks and benefits, is mentally able at the time of the choice to weigh the risks and benefits, etc. note 1, at 5-16.
6. Shafer-Landau, As Feinberg explains, protecting an agent from a choice she did not voluntarily make is, in essence, no different from protecting an agent from a choice someone else made for her. note 3, at 191.
7. FEINBERG, As Feinberg explains, protecting an agent from a choice she did not voluntarily make is, in essence, no different from protecting an agent from a choice someone else made for her. note 3 note 1, at 25.
8. Shafer-Landau, FEINBERG note 3 at 191.
9. FEINBERG, FEINBERG note 3 at note 1, at 52.
10. Shafer-Landau, FEINBERG note 3, at 188.
11. See, e.g., Feinberg on line-drawing in connection with the duty to rescue in FEINBERG (1984), FEINBERG note 3 note 2, at 154-157. I discuss this methodology more generally in Heidi Malm, Civic Virtue and the Legal Duty to Aid, in CIVILITY AND ITS DISCONTENTS, 213-232 (Christine Sistare ed., 2004). Also, it should be noted that the difference between primarily self-regarding and other-regarding conduct is a difference of kind, not degree. For example, the decision to major in philosophy as opposed to biology does not switch from self-regarding to other-regarding when one's parents become grossly upset as opposed to mildly perturbed. Thus Feinberg's main distinction is not open to the same sort of line-drawing resolution that is readily available to other distinctions that are matters of degree.
12. Shafer-Landau, Feinberg on line-drawing in connection with the duty to rescue in FEINBERG note 3, at 182.
13. FEINBERG, FEINBERG note 1, at 20.
14. Much of Shafer-Landau's discussion on this topic is confusing. He writes at times as if Feinberg wants coercively to prohibit voluntary slavery contracts and or coercively to prohibit the act(s) of being a voluntary slave. But on my reading of Feinberg, neither is the case. Feinberg is content with not recognizing the contracts as valid and not spending resources to enforce the agreements or otherwise promote the activity.
15. For example, research originally in the social sciences but now making its way into the philosophical literature suggests that cognitive biases, such as the framing bias and availability bias, may limit our ability to make voluntary decisions in ways not yet fully appreciated. Laws, regulations, and policies that help counter those biases may initially appear paternalistic but upon closer inspection may not be paternalistic after all because they help rather than hinder people's efforts to fulfill their autonomous choices. See, e.g., J.D. Trout, Paternalism and Cognitive Bias, 24 LAW AND PHILOSOPHY 393-434 (2005).