Paternalism and the criminal law

This chapter argues that there are two reasons why legislators generally ought not to employ the criminal law as a means of protecting citizens from their own unfortunate choices. First, legislative paternalism appears ill at ease with each of the major theories of punishment. Second, and quite independently, paternalistic exercises of coercion insult the autonomy of persons in ways that are inconsistent with their fundamental rights as persons. As the chapter further argues, however, those who are distrustful of coercive forms of paternalism might make exceptions for criminal laws that are designed to (1) protect citizens who do not have the cognitive and volitional capacities for full autonomy; (2) afford citizens the information necessary to make rational decisions; (3) curtail the provision by third parties of opportunities to make self-injuring choices; (4) prevent harmful acts by citizens while permitting their harmful omissions; (5) provide positive benefits to citizens, while allowing citizens to suffer the burdens of their own choices; (6) honor citizens’ autonomy by curtailing their liberty when and as they have given Odysseus-style consent; (7) interfere with the choices of citizens that are not really “theirs,” so as to allow their “true” choices to take effect; (8) interfere with the choices of citizens when doing so will allow them to reach their ends via more effective or efficient means; (9) function as mere “nudges” rather than coercive threats of hefty penalties; and (10) prevent the use of personal liberty to alienate future liberty in a manner that is drastic and permanent. While some of these grounds for criminal paternalism are more appealing than others, those who are persuaded that the state is sometimes permitted, and perhaps sometimes obligated, to save us from ourselves may find among them sufficient grounds to punish us for our own good.