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A justification of paternalism Carter, Rosemary Ann

Abstract

I attempt in this paper to develop a theory of paternalism which indicates when and why a paternalistic action is justified. In the first two chapters I consider the extant theories on this subject: in the first chapter I develop a utilitarian theory of the justification of paternalistic interference, and in the second chapter I consider various non-utilitarian theories that have been offered. Although I do not agree with the utilitarian analysis of rights, and so with their rationale for paternalistic intervention, I argue that such a theory does provide a strong presumption against such interference. Nor do I find any of the non-utilitarian theories satisfactory, although they each contain certain important insights. In the third chapter I develop my own theory. I claim that there is really only a problem in justifying paternalism when the subject has the prima facie right to do what he proposes to do. It is therefore necessary to determine under what conditions any prima facie right can be interfered with. From results of this investigation I conclude that consent, either tacit or explicit, prior or subsequent to interference, is the key to the justification of paternalistic interference. More specifically, I argue that consent, or the disposition to consent upon receipt of factual information or correction of a logical error, is a necessary condition for justification, and that it is also sufficient except where it is gained by "warping" the subject's preferences, or where it is due to lack of relevant information, or a logical error.

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