Ratio Juris. Vol. 3 No.

1 bis March 1990 (173-84)

copyright 0 Ernesto Garz6n Va1di.s 1990

On Justifying Legal Paternalism

ERNEST0 GARZON VALDES

Abstract. Paternalism, understood as coercive intervention with the behavior of a person

in order to prevent her from causing harm to herself, is a highly controversial issue,
because it implies a departure from the widely recognized principle of harm to others.
Some conceptual differences between legal paternalism and other forms of state coercion
that also depart from the principle of harm to others will be indicated. This is followed
by an analysis of the arguments that are usually brought forth against legal paternalism.
And finally, the possibility of determining ethically justifiable types of legal paternalism
is explored.

I.
In his influential essay On Liberty, John Stuart Mill affirmed:
The sole end for which mankind are warranted, individually or collectively, in interfering
with the liberty of action of any of their number, is self-protection. . .The only purpose
for which power can be rightfully exercised over any member of a civilised community,
against his will, is to prevent harm to others. His own good, either physical or moral,
is not a sufficient warrant. He cannot rightfully be compelled to do or forbear because
it will be better for him to do so, because it will make him happier, because, in the opinion
of others, to do so would be wise, or even right. (Mill 1978, 135)
Coercive intervention with the behavior of a person in order to prevent her from
causing harm to herself is generally called paternalism, and ever since that radical
formulation by Mill it has been the object of a - not always fruitful - discussion.
While Rousseau could still speak of "paternal authority" as completely opposed
to the "wild spirit of despotism" (Rousseau 1964, 3: 182), today many people
feel deep aversion against the terms "paternalism" or "paternal," and they prefer
to use such expressions as "interventionism" or "welfare principle" instead, to
designate ethically justified departures from the principle of harm to others.
In this essay, I will opt against euphemisms, and use the term "paternalism."
The past few years have seen the appearance of so-called "neoconservatism"
with its subsequent efforts to dismantle the social state (Sozialstaat)for being con-
sidered a morally unacceptable form of "paternalistic aggression" (Nozick 1974,
34, on the one hand, and the existence in our societies of clearly paternalistic
174 Ernest0 Garz6n ValdCs

measures which seem to have a very high degree of plausibility (like the prohibition
of selling drugs, the obligation to wear a seat belt in a car, the obligation to
pay into a retirement fund, the regulations concerning the legal incapacity of
the mentally retarded, the prodigal, alcoholics and drug addicts), on the other.
This trend has given renewed relevance to Mill’s analysis and has once again
stimulated the debate about whether or not the prevention or the punishment
of harm to others should be admitted as the only principle for the ethical
justification of state coercion.
My presentation will proceed in the following order: I will indicate some
conceptual differences between legal paternalism and other forms of state
coercion that do have some similarity to the former insofar as they depart from
the principle of harm to others, favored by Mill; I will then analyse the arguments
that are usually brought forth against legal paternalism; finally I will consider
the possibility of determining ethically justifiable types of legal paternalism.

Legal paternalism asserts that it is always a good reason in favor of a prohibition

or a legal order, even if imposed against the will of the addressee of this pro-
hibition or order, if it is necessary to prevent (physical, psychic, or economic)
harm to the person on whom the measure is imposed. This is the case, for
example, of regulations forcing you to wear a protective helmet on a motorcycle,
of laws that prohibit bathing on unguarded beaches, of the prohibition to sell
medical drugs to persons without a prescription, of laws that prohibit certain
games on the reason that, rather than the rich, they usually attract the poor,
for whom they may have fatal consequences.
The problem of legal paternalism is often also treated within a wider context,
i.e., the context of a possible moralizing function of the legal order which would
then not be restricted to provisions preventing physical, psychic or economic
harm but could also prohibit certain behavior for considering it intrinsically
immoral. As is well known, Lord Devlin defended this position that has been
called “legal moralism.” Examples of this would be, among others, the prohibi-
tion of homosexual acts between consenting adults, or of sex-shows.
There are two other forms of coercive intervention related to, though not
identical with, legal paternalism: (a) one is the intervention of the state in order
to assure a (physical, psychic o r economic) benefit for the addressee of the
measure in question; (b)the other is the case of perfectionism, according to which
it is always a good reason in support of a legal prohibition if this measure is
probably necessary to improve the character of the person on whom it is imposed.

There are three arguments basically put forward against legal paternalism: (1)
the utilitarian argument of competence, (2) the argument of the autonomy of the
 Justifying Legal Paternalism 175

individual, and (3) the argument of the principle of equality.

(1)The utilitarian argument of competence has been stated already by Mill
himself and can be summarized in the following way:
(a) Nobody is a better judge than oneself, with respect to whether or not his
own interests are harmed: "The most ordinary man or woman has means of
knowledge immeasurably surpassing those that can be possessed by anyone else"
(Mill 1978, 206f.).
(b) "The interferences of society to overrule his judgment and purposes in
what only regards himself must be grounded on general presumptions; which
may be altogether wrong, and even if right, are as likely as not to be misapplied
to individual cases" (Mill 1978, 207).
(c) "All errors which he is likely to commit against advice and warning are
far outweighed by the evil of allowing others to constrain him to what they
deem his g o o d (Mill 1978,207). And: 'Mankind are greater gainers by suffering
each other to live as seems good to themselves, than by compelling each other
to live as seems good to the rest" (Mill 1978, 138).
If Mill's premises claim universal validity, they are certainly false:
( a ' ) It is, in fact, not always true that we know better than anybody else
what our real interests are, and much less do we always know exactly what
means will promote or damage them. Even Mill himself has admitted this for
at least two sets of circumstances:
(i) For the case that somebody believes it would be best for him to sign a
slave contract, and in this wa.y to renounce his liberty forever. According to
Mill, such contracts should be prohibited under any circumstances, even if
someone would sign voluntarily, being convinced that this would best serve
his interests (for example, in order to obtain a sum of money that would allow
him to save his children from misery and hunger). But in this way, with the
introduction of liberty as an absolute value, the line of the utilitarian argument
of competence is abandoned. Mill's way out of this is to assert that liberty is
a necessary condition for individual or collective happiness.
(ii) Secondly, for the case that the citizens have not yet reached a level of
development comparable to that of the civilized peoples of Europe:

Despotism is a legitimate mode of government in dealing with barbarians, provided

the end be their improvement, and the means justified by actually effecting that end.
Liberty, as a principle, has no application to any state of things anterior to the time
when mankind have become capable of being improved by free and equal discussion.
(Mill 1978, 136)

In both cases, the addressee(s) of paternalistic action seem(s) to present some

type of deficit, weakness, o r incompetence that would justify an exception to
the principle of harm to others as the exclusive basis of State coercion.
(b') The argument of "general assumptions" is, as Lyons has pointed out,
not only paradoxical, but also contradicts Mill's first premise:
176 Ernest0 Garzbn V a l d k

It rests on the assumption that we know enough about how people have been affected
by past actions to conclude that their interests have been adversely affected by past
attempts at paternalistic intervention. This suggests that we do have substantialknowledge
of others’ interests, and it seems to conflict with the idea that we do not know others‘
interests well enough to determine when paternalisticintervention can be justified. (Lyons
1984, 174)

One would also have to ask whether the principle of harm to others is not equally
based on general assumptions: Because one assumes that an action harms others,
it is generally prohibited, even if in a particu1,ar case the assumption might well
be wrong.
( c ’ ) Finally, there is no doubt that, since we cannot even know the interests
of every single individual, it is extremely difficult, if not altogether impossible,
to calculate general welfare, which has been the preoccupation of utilitarianism.
And it is not so sure that humanity will always end up gaining if everyone is
permitted to live as he pleases. Even the principle of harm to others excludes
normatively the possibility to pursue any kind of life whatsoever, and therefore
implies that this will mean a clear advantage for society in general.
( 2 )The argument of individuui autonomy claims that paternalistic intervention
of the state destroys individual autonomy and inevitably leads to serfdom
(Hayek).
At this point, it seems necessary to analyse in some detail the concept of
autonomy in its relation with paternalism. In order t o do this, I will follow
the approach of Douglas N. Husak (1981). According to him, we can distinguish
between at least three types of autonomy:
(a) Autonomy as the opportunity of an agent to exercise his capacity to
choose: “A person is autonomous in this sense to the extent that impediments
to the meaningful opportunity to exercise his freedom of choice are removed”
(Husak 1981, 35). A clear example of this type of impediment would be if
someone were put into a straitjacket. Apparently, there are only few cases of
legal paternalism which could be subsumed under this type of restrictions. A
safety belt cannot be seen as something like a straitjacket, and when a person
is injured in an accident because she did not use the safety belt, she may later
have less opportunities to carry out her decisions. Because of this, Gerald
Dworkin in these cases speaks of ”freedom-maximizing paternalism.”
(b)Autonomy as the capacity to choose: A person in a straitjacket still has the
capacity to choose, even though she cannot carry out her decisions. A paradig-
matic example for intervention with the capacity to choose could be seen in some
neurosurgical techniques performed on persons with deviate behavior.
It would be difficult, though, to maintain that paternalistic interventions
generally deprive people of this type of autonomy. One can be under coercion,
and still not lose this type of autonomy. And, with Husak, one can even claim
that “if a paternalistic interference is efficacious in protecting the physical
well-being of the agent, his capacity to choose is actually preserved by the
interference” (Husak 1981, 37).
 Justifying Legal Paternalism 177

Let us assume, as Husak suggests, that addiction to certain drugs diminishes

the capacity to choose; in this case, philosophers who maintain that this type of
autonomy is valuable would have to be in favor of reasonable measures to force
these persons not to consume drugs, even though they would be paternalistic.
But there could be still another strategy to reason against paternalism from the
point of view of this conception of autonomy. One could say that paternalistic
acts do not allow the person to choose, and that instead the choice is made
by someone else. In this sense, the person is not autonomous anymore, i.e.,
she no longer obeys laws she gives to herself. In this way, one enters the sphere
of heteronomy and abandons the sphere of morality.
But if this type of argument were taken seriously, then it would be valid for
any type of interference, even those that are not paternalistic, i.e., those based
on the principle of harm to others. In this case, in order to be consistent one
would have to say that the prohibition to kill which is imposed on a potential
murderer deprives him of his liberty to choose (to kill or not to kill, without
being punished) and therefore violates his autonomy, which would mean that
this is a morally unjustifiable prohibition. This is an argument that would
certainly be hard to accept precisely for those who defend the exclusive validity
of the principle of harm to others.
(c)Autonomy as correspondence with the law of morality: The third version
parts from the assumption that autonomy must not be confused with un-
restrained license, and that what is of interest therefore is not only the capacity
to choose, but even more the content of the choice. One can only speak of
autonomy if this content coincides with morality.
But the incompatibility or compatibility of paternalism with this version
of autonomy, as Husak says, “cannot be assessed independently of an inquiry
into the content of morality. It is simply question-begging to assume with-
out argument that the correct moral theory must proscribe all paternalistic
interferences” (Husak 1981, 38f.). What would have to be shown is that a
paternalistic act is immoral, in order to be able to infer that it has violated
autonomy.
Since the argument from autonomy has proven not to be very helpful in
combating paternalism, one could think of trying yet a third way. (3) There
still remains the argument of the principle of equality. Every paternalistic
measure, it is said, presupposes by definition a relationship of supra- and sub-
ordination which violates one of the basic principles of a democratic society:
the principle of equality.
If one takes a closer look at this, one easily reaches the conclusion that this
radical assertion is false. There are, after all, cases of mutual paternalism: A
couple that doesn‘t want to gain weight, but has a certain tendency to indulge
in sweets, can establish a relationship of mutual control in which each one of
the spouses prevents the other from giving in to the temptation of the pastry
shops. Such cases that serve to fight the weakness of the will also exist in the
sphere of legal paternalism, when the state intervenes to prevent that, with his
178 Ernesto Garz6n Vafd6s

own behavior, an individual hurt interests of his own which he himself recognizes
as being more important than the desires that motivate his current behavior
(Nino 1984, 144).
The so-called "Ulysses contracts" can also be included in this type of paternal-
ism for which the expression of supra- and subordination does not seem to be
adequate if it is supposed to imply a violation of the principle of equality.
Precisely because the citizen usually argues like Ulysses or according to the
psychological explanation of Hume (1956,Z: 237), he can look for the support
of the state and ask for its paternalistic intervention, for example, that every
month he withhold from his salary the necessary contributions for a pension
fund, in order to prevent future harm that could result from his own weakness
of will. It would be rather strange to argue that the action of the state in these
cases violates the principle of democratic equality.
In democratic regimes the voters consent to the fact that the candidates they
vote for may adopt measures - if they are elected into office - for example,
to fight inflation or pollution of the environment; and since these measures
usually are not specified in advance, they may involve in some cases a paternal-
istic intervention by the state. Actually, for these cases the voters issue a kind
of "blank cheque" that can be claimed payable even against the will of the
issuer.
But if prior consent of the person concerned justifies paternalistic intervention
by the state, we could continue on this way and say that in all cases where
there is this consent, one can actually not even speak of paternalism, since it
requires by definition the possibility of harm, and nobody can voluntarily harm
himself. This assertion could be supported by the well-known formula "Volenti
non fit iniuria." It has a long tradition, and goes back not only to Roman law,
but even to Aristotle (1985, 265): ". . .right and wrong necessarily require more
than one person. . .nobody commits adultery with his own wife, breaks into
his own house, or robs himself of his own possessions." Here, Aristotle uses
an interpretation of the formula of "volenti. . . according to which "iniuria"
"

means "wrong" in the sense of the violation of a right. Lawyers also know the
maxim "nemo auditur propriam turpitudinem allegans" ("nobody can invoke
his own awkwardness") which points in the same direction. And this was also
the interpretation used by Mill for the formulation of his principle of harm to
others (cf. Feinberg 1983, 12).
But Aristotle (1985, 260) himself has also pointed out a second interpreta-
tion of "iniuria" when he said that "he suffers nothing against his own will,
so that at least in this, no wrong is done to him, but he is, at the most, only
damaged." This indicates that there is a second meaning of "iniuria" which
renders the formula "volenti . . ."obviously false. And it is precisely this second
version of "iniuria" that is relevant for the treatment of the problem of legal
paternalism.
 Justifying Legal Paternalism 179

IV .

If one admits that it is possible to harm oneself voluntarily, that is, if one rejects
the second version of the maxim of "volenti . . . ," and if at the same time one
wishes to stress the importance of respecting individual autonomy, the argument
for the justification of some types of paternalism possibly could concentrate
on the explicit or hypothetical consent of the person treated paternalistically.
This is the approach taken by Gerald Dworkin (1983a, 29).
It is obvious that, by definition, this consent cannot be given at the moment
the paternalistic measure is applied. The person is then either directly opposed
to it (as in the case of Ulysses when he asks his companions to untie him) or
she is not in conditions to consent (because she is unconscious or in some other
way "out of her mind"). I have already treated the case of prior consent in my
reference to Hume and to Dworkin's "blank cheques." This leaves the case where
the object of a paternalistic measure only after some time realizes that the
measure was right. With the posterior consent, the measure would then be
justified.
The appeal to future consent leads, however, to two major inconveniences
that have been pointed out by Murphy (1974, 482): First of all, the subsequent
consent could be in some way "manipulated" by the paternalistic process itself.
This is what frequently happens with political regimes that are not only paternal-
istic but also authoritarian. The suspicion of extreme liberals like Nozick that
legal paternalism is the first step to dictatorship would thus be confirmed. But,
on the other hand, it could also happen that even years after the paternalistic
intervention, the former object of the measure is not disposed to give her consent.
In this case, one would have to say that the person in question should continue
to be the object of paternalistic protection precisely because she is unable to
understand the value of the measure. But this argument would be circular: The
value (or justification) of the paternalistic measure would depend on the future
consent of the person affected, but if this is not forthcoming, it is said that she
didn't understand the value of the measure.
However, recourse to consent can also be seen from another perspective. It
involves not so much actual existence of consent, but rather "hypothetical
consent" (Dworkin 1983b, 102), a hypothesis of rationality or normality.
Whoever is in favor of a paternalistic measure could then say that it is justified if
"all rational persons could agree with his judgment" (Gert and Culver 1979,201).
But if this is what is meant by "future or hypothetical consent," then what
is actually said is that whoever rejects a paternalistic measure does this because
he is, at the moment, unable to understand the significance of the measure. A
concept which would be useful in this context is that of "competence."
In a first approximation, one could say that "competence" indicates the
capacity of a person to master rationally, or with a high probability of success,
the challenges and problems she is confronted with. Since there are different
areas of Challenges and problems, one could also say that the competence of
180 Ernest0 Garz6n Valdhs

a person is always relative to the respective context. Peter may be competent

to interpret a sales contract (if Peter is a lawyer), but incompetent to solve
astrophysical problems. But competence or incompetence can also be relative
within one and the same context, with respect to different persons. John, who
also is a lawyer, may be more intelligent than Peter and, therefore, able to solve
a problem of contract interpretation more rapidly. Whether one is faster or
slower in solving a problem is, however, irrelevant for the correctness of the
solution. In a way, we could say that even though Peter and John are equally
competent, John is more competent than Peter. The apparent contradiction of
this sentence shows that, in fact, we are using two different concepts of com-
petence. Following a suggestion by Daniel Wikler (1983, 85ff.), I will call the
competence common to Peter and John “basic competence” (Cb), and the
competence that is different between Peter and John, ”relative competence”
(CJ.
In social life, compliance with legal dispositions presupposes that citizens
possess Cb at least with respect to those dispositions concerning questions of
daily life (to make simple contracts, to understand the dispositions of the penal
code). And in those cases in which superior competence, i.e., some C,, is
required, the system itself takes care of this (for example, through the disposition
that in a trial the parties must be represented by a lawyer).
In my view, lack of cb is a necessary, though not a sufficient condition for
the justification of paternalistic measures. I think that it is plausible to say that
someone lacks Cb at least in the following cases:
(a) if he is unaware of relevant elements of the situation in which he must
act (this is the case if someone does not know about the effects of certain drugs,
or if someone tries to cross a bridge without knowing that it is about to collapse,
to cite the example of Mill);
(b) if his strength of will is reduced or affected in a way that makes him unable
to carry out his own decisions (this is the case of Ulysses, of alcoholics and
drug addicts as mentioned in article 114 of West German civil code, or of the
weakness Hume has pointed out);
(c) if his mental faculties are temporarily or permanently impaired (this type
of cases is referred to by legal dispositions prohibiting duels, or putting the
mentally retarded under tutelage);
(d) if he acts under compulsion (for example, under hypnosis, or under threat);
(e) if he recognizes the importance of a certain good, wishes not to endanger
it, but refuses to employ the necessary means to protect it, even though they
are at his easy disposition. The inconsistency resulting from wanting X, knowing
that Y is a necessary condition for obtaining X, disposing of Y, not having
anything to object against Y, and not using it, is a dear symptom of irrationality
(Dworkin 1983a, 30). It permits including the person in question in the category
of those who lack basic competence (this is the case of the obligation to wear
seat belts in a car, and helmets on a motorcycle).
In all these cases, the person showing a lack of C,, that is, who is “basically
 lustifying Legal Paternalism 181

incompetent" (I&,),has a deficit, compared to the general average of his fellow

men. In this sense, it can be said that he is in a situation of negative inequality.
It follows from the examples given that this I b can be permanent or temporary,
partial or total.
It is obvious that I, can be attributed to someone more or less arbitrarily.
It can be attributed either to an individual or to an entire people, as is the case
when, for example, it is said that a nation is incapable of handling democratic
institutions. Since what we are interested in is l b as a necessary condition for
the justification of paternalism, it is therefore advisable to require that this basic
incompetence have an objective basis. An adequate criterion for the attribution
or negation of basic incompetence would seem to be the reference to well
corroborated causal relations - as, for example, in the case of the effects
of drugs, alcohol, hypnosis, or those situations Gerald Dworkin (1983a, 30)
calls "cognitive delusions," i.e., when someone believes that he will float in the
air if he jumps out of the window - or to criteria of logical inconsistency, as
in case (e).
It is important to limit justifiable paternalism to cases of type I,, and not
extend it to those of relative incompetence (I,), in order to prevent justification
of a society governed only by its most talented and best informed members.
Justifiable paternalism has nothing to do with a Platonic state governed by
philosophers.
That the existence of [ b eliminates the objection against paternalism raised
by liberals is something that Mill himself seems to have realized when, in the
passage quoted at the beginning, he speaks of "any member of a civilized
community." The adjective "civilized" indicates, on the other hand, that even
Cb is in a certain sense relative. The basic competence required in a "civilized'
or "modern" society can be very different from the one required in a "primitive"
society. The level of required C, is probably raised as the complexity of a
society increases, and this also implies a growth in the number of "basically
incompetents" (one only has to think of the average citizen's inability to fill
out his tax forms). This is also where many see the dangers of a highly techno-
logical society. But this does not alter the relevance of I b as a necessary condi-
tion for the imposition of justifiable paternalistic measures.
The confirmation that someone is an 1, is, of course, not sufficient for the
justification of paternalistic interventions. One could very well share the view
of former U.S. Supreme Court judge Brandeis that the most valuable right of
every civilized person is the right to be left alone. O r one could be of the opinion
that every person is responsible for her own life, using the competence and
capacities she possesses, and that the most I can do when I happen to come across
an Ibis to say that I am sorry about his bad luck, but to let him take care of it
himself. Justifiable Paternalism also requires a benevolent interest (Murphy 1974,
465) in the 1, that is directed towards overcoming the disadvantages basic
incompetence means for the incompetent himself, i.e., towards assuring that he
will not harm himself. If this benevolent interest is missing, then intervention
182 Ernest0 Garz6n V a l d b

either takes place only in cases in which the principle of harm to others is
applicable, or the l b is instrumentalized.
The application of paternalistic measures in many cases obviously implies
a relationship of superiority, and in this sense of inequality. This follows from
the definition of incompetence itself. But the aim of a justifiable paternalistic
measure is precisely to overcome this inequality.
The two conditions mentioned - basic incompetence and benevolent interest
- are both necessary, and their conjunction renders them also sufficient. An
argument for the justification of a paternalistic measure thus has to part from
two premises, one of them empirical (confirmation of basic incompetence), the
other normative-ethical (the deficit produced by basic incompetence must be
overcome, precisely to assure autonomy and equality which, according to
those who defend the exclusive validity of the principle of harm to others, are
endangered by legal paternalism).
If one accepts this, then one would have to conclude that it is not ethically
justifiable to interfere in the following cases:
(a) If..someone who has basic competence wants to harm himself, or even
to take his own life, for example, because he wants to punish himself, or because
he thinks that life has lost sense for him and that death would be a liberation.
The former is the case of those who consider themselves guilty for something and
become their own judges, as in the examples of Oedipus, Judas or Raskolnikov;
the latter alternative is the case of Werther or Seneca who said: "Against all
offences of life I can always take refuge in death."
(b) If someone who has basic competence prefers to run a risk of certain or
highly probable harm to himself in order to pursue his own pleasure or happiness.
This would be the case of Doctor Faustus (Goethe 1963, 51) or of Alain Prost,
the Formula One champion, who once said in an interview:

We're all close to death. Only that racecar drivers are closer, since we have a sword
of Damocles hanging over our heads. Sometimes you just have to take a risk in life,
otherwise what would life be worth? Look at the mountain climbers. I think they're
great. . .What does risk mean, anyway?. . .There are many ways to die. (Der Spiegel,
August 25th, 1986)

(c) If someone who has basic competence risks his life for the good of someone
else. In this category we would also have to include those who uphold an ideal
of heroism.
In the case of a Cb who wishes to end his life or to run extraordinary risks,
legal paternalism is not justifiable, according to the formula I have proposed
here. The only thing one can do in these cases is, if one thinks it useful, to offer
advice or to appeal to further reflection. Only if one accepts a metaphysical
or religious conception of the value of life, like Locke, for exampIe, or William
Blackstone who maintained that the very act of suicide is an evidence of insanity
- apparently placing the suicide in the category of lb - is it possible to justify
the prohibition of suicide or of activities that are very dangerous to oneself.
 Justifying Legal Paternalism 183

The concept of basic incompetence sets a limit that some people might consider
too low. I think, however, that it is advisable to maintain this minimal line
and to consider cases located right above of it as belonging to a zone of twilight
for which it is very difficult to determine universally applicable criteria. We
only need to think of the case of a possible general prohibition of smoking.
The smoker could be considered a case (a) of basic incompetence (irrationality),
but also a case (b) of basic competence, i.e., as one of those who prefer to run
a more or less certain risk of reducing their life expectancy in order to enjoy
the pleasure of smoking. Personally, I would be inclined t o support this second
possibility.
Another question would be whether or not the state should take measures
to make certain activities considered as risky less attractive (this would be the
case of the prohibition of advertising cigarettes, or of giving life insurance
companies the right to refuse mountain climbers or Formula One race drivers).
It is also, of course, not justifiable to interfere with the behavior of an 1,
if it is not done with the intention to overcome the deficit caused by basic
incompetence, or if it is even done precisely to reinforce inequality. Nothing
is easier, and nothing is morally more objectionable, than the instrumentalization
of an Ib.
The acceptance of these two necessary and jointly sufficient conditions for
the ethical justification of legal paternalism makes it possible to interpret it not
only as ethically permitted, but also possibly as ethically required as an efficient
means for the elimination of inequalities. In this sense, it would be a necessary
complement of the principle of harm to others that can be interpreted as a
positive ethical obligation.

Johannes Gutenberg-University
Department of Political Science
Co1onel- K 1ein mann- W e g 2
0-6500 M a i m
W e s t Germany

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