“Moralism” and “Paternalism”: The Possibility or Impossibility of Limiting Individual Freedoms?

“Moralism” and “Paternalism”: The Possibility or Impossibility of Limiting Individual Freedoms?

Seyed Mohammad Hosseini [1]

Mohammad Yousefzadeh [2]

Hossein Dabbagh [3]

Abstract

What is meant by “moral paternalism” and what interpretations of it can be offered? What is the relationship and connection between “paternalism” and “moralism,” and what are their points of divergence and convergence? In “paternalism,” at least in its classical version, the effort is to prevent a person from harming themselves, not necessarily from harming others. However, in “moralism,” the effort is to prevent the commission of “immoral/amoral” acts that society deems objectionable, and, at least according to some readings, such acts should even be criminalized. It is clear that in both conceptions, the “freedom” of individuals will ultimately be subject to change and limitation. But the question is, which of these two views is justified and reasonable for states and/or governments to employ in their policymaking and legislation? In this article, we will argue that “moralism” is unjustified and that applying it to limit the “freedom” of citizens is unreasonable. To demonstrate this, we will first describe and explain the idea of “paternalism” and enumerate the types of “paternalism,” then we will address “moralism” and put its critique on the agenda. In the end, we will argue that “moralism” is not built on a solid foundation.

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Published in the Journal of Philosophical Meditations

Volume 13, Issue 30, Pages 335-376, September 2023

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Keywords: Paternalism, Moralism, Legal Enforcement of Morality, Morals, Legal Moralism, Conventional Morality, Lord Patrick Devlin, Immoral, Amoral, Normative Ethics, Harm Principle, Freedom, Autonomy, Moral Agent.

“Paternalism” & “Moralism” on Limiting Citizen’s Freedoms

Abstract

What does moral paternalism entail? What about moralism? How do moral paternalism and moralism differ? In paternalism, at least in one interpretation, the aim is to prevent people from inflicting harm on themselves, not necessarily others. However, in moralism, the aim is to prevent people from committing what society regards as a wrongdoing to secure society’s understanding of morality. Some accounts of moralism argue that these wrongdoings ought to be criminalized. It is rather intuitive to claim that applying moral paternalism and moralism shall restrict people’s liberty. Which one of these two approaches is plausible to be applied by states? In this paper, we argue that moralism restricts people’s liberty unjustifiably, hence implausible. We will begin by explaining what paternalism amounts to. Next, we will critically evaluate moralism. We conclude by arguing that moralism is not a defendable approach.

Keywords: “Paternalism”, “Moralism”, “Legal Enforcement of Morality”, “Morals”, “Conventional Morality”, “Lord Patrick Devlin”, “Legal Moralism”, “Immoral”, “Amoral”, “Normative Ethics”, “The Harm Principle”, “Freedom”, “Autonomy”, “Moral Agent”.

Introduction

“Moralism”[4] and “Paternalism”[5] are two distinct systems of thought which, according to some scholars, stand in opposition to one another.[6] Undoubtedly, in both systems of thought, limitations are imposed on “individual freedom,” but the intensity of these limitations will vary depending on which thought and perspective we adhere to. Accordingly, the scope of intervention in “individual freedoms” will naturally expand and contract. The important thing is to know in which of the two aforementioned perspectives the limitation of “freedom” is justifiable and logical.

We will leave a detailed exposition of each of these two systems of thought and the various and diverse readings that have formed around them to the main text. However, here, to clarify the reader's mind regarding what we are talking about, it is first necessary to pose a few preliminary questions.

The questions we seek to answer in this article are as follows:

1- What is “Paternalism” and what is its relation and connection to “Moralism”? Answering this question depends on posing other questions:

1-1- Can common components be found between these two concepts, or must we rule for their absolute separation?

2-1- Which of these two concepts restricts “individual freedoms” more than the other?

3-1- Under which of these two readings and systems of thought can the restriction of “individual freedoms” be justifiable, and which concept restricts “individual freedoms” without any justified and convincing reason?

2- “Moral Paternalism,”[7] which is itself one of the types of “Paternalism,” what are its points of difference and commonality with “Moralism”? Answering this question also depends on posing other questions:

2-1- To which reading in the sphere of ethics does the moral description in these two perspectives belong? “Conventional/Descriptive Morality” [8] or “Normative Ethics”? [9]

2-2- Which perspective or perspectives are subject to critique by proponents of “Moral Paternalism” on the one hand, and, on the other hand, in the case of believers in “Moralism”?

The brief answer to each of the above questions is as follows:

1- In all types of “Paternalism,” at least according to its classical reading, what is important is the person not harming themselves, not necessarily harming others (the No-Harm Principle)[10] – the “Paternalist” must strive solely and exclusively to prevent the harm a person inflicts upon themselves, but in “Moralism,” the criterion for intervening in the “freedom of citizens” is the prevention of an “immoral/amoral”[11] act, not the person harming themselves or harming others. What is generally important in “Moralism” is the mere commission of an “immoral/amoral” act that society considers contrary to its “prevailing morality.” “Moralism,” according to one interpretation, is “the legal enforcement of the prevailing and conventional morality of a specific society,” and is a belief of the moral type of a specific society or group that can and/or should prohibit and limit some of the “freedoms” that conflict with this morality. Accordingly:

1-1- There is no logical relation and connection between these two concepts, and each pursues independent goals and specific reasons for limiting “freedom.”

2-1- The restriction of “individuals’ freedom of action” in “paternalistic” readings is justified when a person’s action harms them and puts them at risk. In fact, the effort is to prevent the person’s risky action toward themselves. But in the “moralist” view, as soon as an action contrary to the prevailing morality of society occurs—whether this action causes harm to the person or others or not—“individual freedom” must be restricted, and, according to some readings, such actions that are contrary to “prevailing morality” must even be criminalized.

3-1- The answer we gave above can certainly be a suitable answer to our question here as well. The justified reason or reasons for intervening in “individuals’ freedom” in “paternalistic” views is so that the individual does not suffer harm to themselves—harm that, for example, in some situations can even lead to the person’s death. Whereas in the “moralist” reading, the supposedly justified reason for intervening in “individual freedom” is solely and exclusively the commission of acts that weaken the moral foundations of society—moral foundations that can themselves even have an “anti-moral/immoral” dimension [12]. Harm to self and others is by no means the concern of “moralists” for intervening in “freedom.”

2- In “moral paternalism,” the goal is to prevent the person’s moral harm to themselves. This type of “paternalism” is more or less justifiable, because the justified reason for “paternalistic” measures is preventing the person’s moral harm to themselves. In other types of “paternalism,” the “paternalist” tries to prevent the person’s harmful action toward themselves not from a moral standpoint but from other standpoints. In this approach, the restriction of “individuals’ freedom” is far less than what is considered in “moralism.” “Moralism,” however, is based on the presupposition that the person’s moral harm to themselves is not necessarily the criterion and standard for intervening in “the individual’s/individuals’ freedom”; rather, by the mere commission of an act or acts that are “immoral/amoral,” and not necessarily “anti-moral/immoral,” whether or not harm befalls the agent through the commission of such act or acts, one can and/or must rule on the prohibition of such acts, and, according to some readings, such acts must be criminalized. In this view, even if no harmful act exists, by the mere fact that the individual’s activity is in conflict and opposition with the “prevailing and conventional morality of society,” it must be prevented.[13]

1-2- The meaning, concept, and instances of “moral paternalism” must not be conflated in meaning and instance with the concept of “moralism.” The moral description in the realm of “moral paternalism” is “normative ethics.” Whereas in the realm of “moralism,” moral rulings are commands that society, according to its customs, traditions, and conventions, deems moral, and whatever is contrary to this morality is considered “immoral/amoral.” In support of this claim that the “moralist” approach sees morality solely in social customs and traditions and derives moral rulings from the heart of these traditions and beliefs (= “conventional and customary morality”), like G. Dworkin (Dworkin, 2005: 305-19), C. L. Ten [14] also considers “moralism” to be the “legal enforcement of conventional morality” and, in this regard, believes: the criterion and standard in “moralism” and its legal enforcement is “conventional and customary morality” (Ten, 1971: 63). In the domain of “moral paternalism,” contrary to “moralism,” the rulings of “normative ethics” for preventing the person’s harm to themselves are the criterion and standard, not “conventional and customary morality.”

2-2- To answer question 2-2, one must distinguish between two readings of “moralism.” According to the “minimalist reading,” whose most important intellectual representatives include James Fitzjames Stephen[15] and Robert P. George[16], it is believed that certain “immoral/amoral” acts, such as “homosexuality,” should be prohibited because they are harmful to the agent or agents. By doing so and prohibiting the commission of such acts, the individual’s character is improved or, at the very least, further decay and degeneration of their character is prevented, thereby securing valuable benefits for them.[17] According to the “maximalist reading,” whose most prominent intellectual representative is Devlin, it is believed that the moral harm to the agent is fundamentally irrelevant to prohibiting them from performing an act. What matters is the prohibition of activities like “homosexuality”—not because these acts cause harm to the person or others, but because they weaken the moral foundations of society. Devlin believes that an “immoral/amoral” act like “homosexuality,” since it weakens the foundation of society and is an action contrary to the “conventional morality of society,” must be prohibited and also criminalized. It seems that the first group’s reading bears a closer resemblance to the definition we provided of “moral paternalism”—that is, the prohibition of a person’s moral harm to themselves. However, the difference between this reading and “moral paternalism” is that the nature of moral harm in the “minimalist reading” is determined and delineated by society based on its own beliefs. Whereas the second group’s reading does not consider a person’s moral harm to themselves as a criterion for prohibiting an immoral act at all, and therefore, this reading is a clear instance of “legal moralism” and not “moral paternalism.” Nevertheless, the difference between both readings compared to “moral paternalism” is that in these two readings and intellectual systems, the prohibition of individuals’ and citizens’ acts is based on criteria delineated by “conventional and customary morality,” but in “moral paternalism,” it is “normative ethics” that determines the prevention of “anti-moral/immoral” acts—and it is on the basis of this ethics that restrictions on “freedom” can be justified.

Also, in order to understand some of the issues and in line with what has been stated, and which we will discuss in detail later, it seems necessary to mention a few more points:

1- - In the maximalist reading of “moralism,” at least what Devlin believed, harm is fundamentally irrelevant to legislation, and the foundation of society is preserved through “conventional morality accepted by the public.”[18] Social cohesion disintegrates upon the commission of “immoral/amoral” acts and deeds, even if such immoral acts occur in private and even if their commission harms no one.[19] Thus, as soon as an act is “immoral/amoral,” whether it occurs in private or in public, even without causing harm to the agent or others, it must be prevented and criminalized.

2- - “Moralistic” attitudes are closely tied to “morality as it is, not as it ought to be.” The reason we mentioned the prevention of “immoral/amoral” acts is that in most “moralistic” readings, the moral or immoral nature of an act is determined by society. In this sense, morality has a “relativistic”[20] aspect, and whatever society, according to its conventions, considers moral or “immoral” becomes a criterion for legally dealing with individuals who do not submit to the rulings and decrees of this morality and do not believe in it. It is clear that this reading of morality is completely different from what constitutes “moral truth,” which is rooted in rational, normative ethical theories and possesses a trans-social and trans-cultural dimension.

3- What is important in the maximalist reading of “moralism,” in contrast to the “minimalist reading,” is that “harm” is considered a fundamentally irrelevant matter for justifying the intervention of the state and/or government in “individual freedoms”—“immoral/amoral” acts must be prevented even if no harm whatsoever comes to the agent or other persons through the commission of such acts. For example, Devlin considers the commission of certain acts and deeds “immoral/amoral” not because they cause harm to the agent or others, but because the commission of such acts weakens the foundations of society and poses a threat to the beliefs and “prevailing morality of society.” He believes that the commission of such acts must be prohibited. This reading is the opposite of the “minimalist reading,” which considers only a person’s moral harm to themselves as a justification for prohibiting an act—a morality, of course, that is determined by society and is its construct.

4- From the combination of the three points above, it can be understood in which conception and reading the possibility of limiting “individual freedoms,” on any pretext and sometimes even based on flimsy pretexts, is more possible than in others. In a comparison between the two concepts of “paternalism,” and especially “moral paternalism,” on the one hand, and “moralism” on the other, since no universal and universally acceptable rational principle[22] forms the background of moral rulings in the readings of “moralism,” consequently, moral rulings will undergo conceptual metamorphosis in different times and places. In other words, there is no fixed moral principle, and since, especially in the “maximalist reading,” preserving society is of fundamental importance, when the moral foundations of society begin to weaken, “moralism” can even turn to promoting “anti-moral/immoral” acts in order to save society from destruction. It is clear that in this state of instability, the first thing that is sacrificed is morality itself in its true sense. And the second victim is nothing but “the fundamental freedoms and rights of individuals.”

5- The “paternalist,” in the direction of safeguarding the person’s welfare, strives to prevent the person from committing harmful actions against themselves. If this harm is “anti-moral/immoral” harm, then the concept of “moral paternalism” will be brought into discussion. Thus, in “moral paternalism” as well, the concern of the “paternalist” is, firstly, to prevent the person’s moral harm to themselves, and secondly, by preventing the person’s moral harm to themselves, to enhance their “moral behavior or character.”

6- Another point regarding “paternalism” is that in this view, the state/or government and/or person/persons try to prevent the individual from harming themselves. The main concern in most types of “paternalism” is the welfare and well-being [23] of the individual, which will be achieved by preventing the person from harming themselves. Also, in this intellectual system, what is important is preventing the person from harming themselves, not necessarily preventing the person from harming others. This is while in the maximalist reading of “moralism,” according to Devlin, causing damage to the foundations and customs of society, which is the “conventional and prevailing morality” and holds a lofty position in “Devlinian moralism,” is a factor for the prohibition and limitation of “freedom,” not harm to oneself or others.

7- Although it was said that “paternalistic” measures can exist from persons/individuals alongside governments and/or states, here our discussion is solely focused on the “paternalistic measures of governments and/or states.”

Given the relatively detailed introduction above, in this article we will first try to present the various definitions that have been offered for the concept of “paternalism” and take a look at the issue of the possibility or impossibility of “limiting freedom” within this intellectual system (1). Then we will discuss the different types of “paternalism” (2). After that, we will turn to the conceptualization of “moralism” and the different interpretations that have been advanced regarding this concept, and under that, we will also express our critical/evaluative views [24] on this concept (3). In the epilogue and conclusion of the discussion, we will present our summary of which concept limits “individual freedoms” more than the other (4).

1- Paternalism

At the outset, it is necessary to mention that attitudes based on “paternalism” have been subject to extensive criticism, both from later and earlier thinkers. For example, Joel Feinberg[25], who has produced numerous and significant works and expositions on “paternalism” and its corresponding concepts, writes: “Paternalistic” intervention restricts “freedom” and constitutes an unjustifiable violation of individuals’ right to sovereignty over determining their own destiny. Moreover, limiting “individual freedom” on “paternalistic” grounds is morally offensive because it encroaches upon the realm of personal autonomy—a realm where every competent, responsible adult ought to reign (Feinberg, 1986: 25). Undoubtedly, what is evident is that “paternalistic” measures restrict “freedom”; however, for reasons we shall present, it is also not morally permissible to leave individuals (especially those who lack an independent will in making decisions) to their own devices and, by failing to support them in the harm they inflict upon themselves, to indirectly abet it. In our view, “although violating individuals’ freedom is morally wrong, in circumstances where individuals are at risk and in need of assistance, violating their freedom is morally permissible.”

Be that as it may, among a number of philosophers of law, ethics, and politics, there have been extensive arguments concerning the existential philosophy of “paternalism”—one of the most prominent and renowned of whom is Immanuel Kant. Kant opposes “paternalistic governments” because he believes they curtail the “freedom and autonomy of individuals,” and considers the existence of such governments an obstacle to the exercise of individuals’ free will and the autonomous pursuit of personal goals. [26] In other words, Kant says, a “paternalistic government” is one that views its citizens with a childlike regard—minor citizens who cannot discern and decide what is beneficial or harmful for them, but are obliged to passively await the intentions of state and/or governmental agents so that these agents may judge how these moral agents ought to be happy—and this is the greatest conceivable despotism.[27] [28] Nevertheless, there remain well-reasoned and thought-provoking views surrounding the concept of “paternalism” with which we need to become acquainted, even if briefly. Various definitions and explications of the concept of “paternalism” have been offered. In this section, we endeavor to describe the principal definitions provided by a group of philosophers and, thereafter, present our own definition of “paternalism” so that, by taking this definition as a criterion, we may proceed to explain and elucidate the sections that will follow.

Danny Scoccia[29] believes that most moral and political theorists define this term according to the following analytical formulation:

“A” acts paternalistically toward “B,” that is:

1- “A” restricts “B’s” freedom or intervenes in their decision-making.

2- “A” intervenes in “B’s” freedom against “B’s” will, without their consent, and contrary to their preferences.

3- “A” intervenes for the benefit of “B” (Scoccia, 2018: 11).

In other words, according to the above analysis, “A’s” paternalistic action toward “B” is for the benefit of “B”—carried out by restricting their “freedom,” intervening in their decision-making, and also against their will and consent. For example, if a father or mother forces their child to take a bitter medicine for the sake of their health, according to the above definition, they have performed a “paternalistic” act.

G. Dworkin, too, with an exposition similar to the formulation above, believes: firstly, one of the most minimal elements of this theory is “the imposition of some kind of restriction on the freedom or autonomy of agents,” and secondly, its logical analysis is as follows:

“A’s” actions are performed paternalistically for the benefit of “B” and for the purpose of eliminating “C,” that is:

1- Removing “C” limits the freedom or autonomy of “B”.

2- “A” does this without the consent of “B”.

3- “A” does this solely because he believes that removing “C” brings about and promotes the welfare of “B” or, in some way, removing “C” is a factor in improving and promoting the interests, values, or goods of [30] the goods of “B” (Dworkin, 2020: § 2, para. 4).

G. Dworkin believes that “paternalism” is the interference of the state and/or government or an individual/individuals in the activities of others contrary to their will and desire; with the claim that the intervening individual/individuals or state and government, in the “freedom of the person/persons,” recognizes their interests better than they themselves do and, through their actions, prevents them from harming themselves. In his view, “paternalism,” at the theoretical level, deals with the question of how and in what way individuals should be treated in conditions where they are not fully rational and do not act rationally (Dworkin, 2020: preface).

Brian Bix[31] also writes in defining “paternalism” as follows: “This term [...] refers to situations where the government treats its citizens in a protective [= paternalistic] manner; in the same way that parents treat their immature children who lack the power to protect themselves [...] According to [this view], the protective actions of the state can be justified on the basis that this institution can safeguard the interests of individuals better than the individuals themselves can.” (Bix, 1393: 178-9) According to another account, Ten believes: “‘Paternalism’ involves protecting individuals to prevent them from harming themselves; in conditions where their decisions are impaired [...]” (Ten, 1971: 63). He says, “paternalism” has nothing to do with moral evils— “paternalistic” intervention only applies when the agent’s decision is impaired. But as to why the individual’s impaired decisions constitute a prescription for “paternalistic” interventions, he mentions four possibilities in this regard:

1- We may be dealing with specific groups of individuals, such as the intellectually disabled or the mentally abnormal, as well as psychiatric patients. These individuals do not possess the same capacities as normal adults and their decisions are under the influence of harmful factors;

2- There may be a lack or deficiency of knowledge in their decision-making; for instance, it is probable that the agent does something whose consequences he is unaware of, or that he is aware of the nature of the act but uninformed about its consequences;

3- Another possibility is that he is aware of the consequences and outcomes of his action but, due to emotional imbalance, cannot grasp the full significance of these consequences and make a rational judgment about them. This emotional imbalance can result from grief, distress and agitation, or intense pressures; and

4- The individual’s decisions may become impaired due to undue external influences on the agent. Undue and inappropriate influences take various forms: including economic pressures and, in some cases, customs and conventions. [32] Thus, according to Ten’s definition, “paternalism” and “paternalistic” action are actualized when the individual’s decisions are impaired based on the four aforementioned assumptions.

According to some others, “paternalism” is a type of act or action (or practice, law, policy, etc.) whose underlying motive is other-regardingness/heteronomy[33], a belief in performing a benevolent duty, and motives of this kind. The “paternalist” believes that his intervention is in the interest of his target and that this benefit justifies the intervention (Scoccia, 2018: 12). But from Scoccia’s perspective, benevolent motives alone, according to the above account, do not do justice to the matter. Suppose someone is thirsty and asks me for a sip from my water container. I do so, and there is no doubt that my benevolent act benefits him, but my act is not a “paternalistic” act, because my action does not “interfere” with any of his choices. Accordingly, there is no justified “paternalistic” reason for my action (Scoccia, 2018: 12). As Kalle Grill[34] has argued, the concept of a justified reason in “paternalism” must be a “combination” of an act (= an intervention) and a justification.[35] In this argument, the justification refers to the good and benefit of the person in whose choice one intervenes, rather than the good and benefit of others. This issue, namely the benefit of the person being protected and not the benefit of others, is a “paternalistic” reason that distinguishes it from the logic of intervention by the individual and the state and/or government to “prevent harm to others”[36] (Scoccia, 2018: 12).

In any case, considering the definitions provided by a number of philosophers, our summary definition of the “paternalism” system of thought is as follows: “Paternalism” is an act or action carried out by interfering with the “freedom of the person/persons” and for the purpose of improving the conditions of the person in whose activities the intervention has taken place. The main and fundamental reason for undertaking this interventionist action, which in any case “limits individual freedom,” is to prevent the person from harming himself. In other words, “paternalism” is not an action aimed at preventing an act or acts that harm others (= the no-harm principle); rather, preventing the person from harming himself is solely the subject of “paternalism” discussions. Also, when an individual, in choosing among various options, selects the option that causes him harm, the “paternalist” can and/or should intervene in his “freedom” of choice for his benefit and eliminate or prevent the harmful option/options that have no benefit for the agent. Of course, our view of the category of “paternalism” is solely focused on the actions of states and/or governments, not individuals. Another important point is that in some types of “paternalism,” such as “moderate paternalism”[37], whose description will come shortly, preventing the person from harming himself may not yield results, and preventing the person from harming himself may not lead to the outcome the “paternalist” seeks.

2- Different Types of Paternalism

“Paternalism” has various types and forms, the common feature of all of which is preventing the person from harming himself. Thus, a number of moral, political, and legal philosophers, based on their particular conception of the concept of “paternalism,” have divided this concept from various perspectives, which have a “normative” nature, into different types. In the following, we will describe and explain some of these classifications.

1-2- “Moderate Paternalism” versus “Hard Paternalism”[38]: A “paternalistic” action in “moderate paternalism” is justified when we know whether the person whose activities are being interfered with is acting voluntarily and knowingly. For example, a person intends to cross a broken bridge (the famous example of J. S. Mill)[39] and we cannot converse with him and inform him of the danger because he speaks Japanese. Here, the “paternalist” must first prevent him from crossing the bridge through compulsion and force, so that he can then inform him of the bridge’s condition. However, if this person is aware of the bridge’s broken state and intends to commit suicide, the “paternalist” is not permitted to prevent him from this act (Dworkin, 2020: § 2.1). This is the same kind of “paternalism” that the definition we provided at the end of the previous section refers to. In this case, the “paternalistic” action may not result in an outcome that prevents the person from harming himself. Feinberg, unlike G. Dworkin, believes that when, for instance, an intoxicated person exists who has also accepted the risk of undertaking dangerous actions, or a paranoid schizophrenic patient during a psychotic episode, insofar as he is unaware, drinks a poisonous liquid, since in such instances we are faced with fundamentally non-voluntary choices by individuals, one can prevent the person’s action. Feinberg classifies this type of “paternalism” under “moderate paternalism” (Feinberg, 1986: 12).[40]

Regarding the example of the passerby who is crossing a broken bridge, “hard paternalism” says that, at least in some cases, one can prevent him from walking on it even if he is aware of the bridge’s condition. In this way, we can prevent his voluntary suicide (Dworkin, 2020: § 2.1). Feinberg also believes that in “hard paternalism,” we are dealing with the voluntary choices of the individual (Feinberg, 1986: 12).

At least concerning “moderate paternalism,” one can point to the issue of “public vaccination” during the “coronavirus pandemic” in most countries, where governments and/or states generally compelled individuals to get vaccinated, and if individuals failed to comply and prevented the injection of the vaccine, their governments would deprive them of certain social services. Regardless of the extent to which this compulsion and its enforcement mechanisms were implemented and successful, and also without considering that most liberal governments, in the first instance, operationalized vaccine injection to “prevent harm to others,” this action by governments and/or states can also be considered a type of “paternalistic” action, albeit of the “moderate paternalism” variety; that is, secondarily, it was important to prevent the person from harming himself, because in “moderate paternalism,” the individual, due to his physical or mental condition, has no desire and does not want anyone to interfere with his freedom of action and prevent his harmful actions.

2-2- “Narrow Paternalism” [41] versus “Broad Paternalism”[42]: The first type pertains solely to the issue of coercion by the state and/or government, i.e., legal obligation and compulsion, and the second pertains to any type of “paternalistic” action, regardless of who the “paternalist” is. The coercive action that takes place in the second type expands the scope of interveners, including state and/or governmental coercion, institutional coercion (e.g., a hospital’s policy), and also the action of a person/persons (Dworkin, 2020: § 2.2). In other words, “broad paternalism” includes coercion from any source, including private institutions, families, and individuals, to “limit freedom” or supervise an individual’s actions, whereas “narrow paternalism” includes only coercion by the state and/or government.

3-2- “Weak Paternalism”[43] versus “Strong Paternalism”[44]: In “weak paternalism,” the emphasis is on the paternalist’s intervention regarding the effectiveness of the methods and means employed by agents. For example, if a person genuinely prefers safety to comfort, compelling them to wear a seatbelt (= intervention in method and means) is legitimate. In other words, intervention in method prevents the person from harming themselves (Dworkin, 2020: § 2.3). Although we are not here articulating the “no-harm principle,” in the example given by G. Dworkin, not wearing a seatbelt could also be a factor in harming others. One example is that by failing to do so and not wearing a seatbelt, pressure is placed on the state’s and/or government’s healthcare system, imposing costs upon it—with this assumption, harm to others is certainly conceivable as well.[45]

In G. Dworkin’s terms, the “strong paternalist,” however, believes that when individuals are likely to have mistaken, vague, or irrational goals, it is legitimate and justified to intervene to prevent them from achieving these goals. If a motorcyclist genuinely prefers the wind blowing through their hair to increased safety, i.e., wearing a helmet, it is justifiable for them to wear a helmet while motorcycling, because such individuals’ goals are irrational or wrong (Dworkin, 2020: § 2.3). In other words, here, intervention in the goal prevents the person from harming themselves.

Some other authors hold a different view on these two types of “paternalism” from what we have expressed from G. Dworkin. According to these authors, in the domain of medical issues, “strong paternalism” applies to a person/persons who are autonomous, and “paternalism” finds its application where these autonomous individuals might, through the decisions they make, harm their own best interests in their choices and actions. The “paternalistic” action in this case also violates the choices and actions of the autonomous person. In contrast, in “weak paternalism,” the choices or actions of the person in question are fundamentally non-autonomous. For example, for a patient who lacks full autonomy and cannot decide independently and voluntarily, the “principle of beneficence”[46] has no conflict with respect for individual autonomy. Consider a mental patient who is in a situation where they cannot act out of free will and lack the mental capacity to provide informed consent for treatment. They may object to a specific treatment that the physician believes is necessary for them. On this basis, the “principle of beneficence,” which does not negate the autonomy of such an individual/individuals, provides a clear and easy justification for overriding the patient’s objection to treatment—especially if the “paternalistic” action results in a major, and very necessary, health benefit for the patient (Childress, 2015: 37-8).

Nevertheless, according to some, contrary to the previous approach, in “weak paternalism,” intervention in the choices and actions of a person/persons leads to the violation of their autonomy, for the reason that the person whose activity is being intervened in has used incorrect means and instruments to achieve their end. Whereas in “strong paternalism,” intervention occurs only in the person’s goals when those goals are erroneous and defective, not in the means and instruments the person has considered for achieving the goal (Birks, 2014: 485). Hence, fundamentally, intervention in goals does not lead to the violation of the individual’s autonomy; rather, it is intervention in the means and instruments favored by the person for achieving their goal that is considered a violation of autonomy.

4-2- “Pure Paternalism”[47] versus “Impure Paternalism”[48]: G. Dworkin points out a nuance regarding these two types of “paternalism,” namely that “paternalism” does not necessarily involve prohibiting activities through which a third party or parties are harmed. He writes, using an example: “Suppose we prevent individuals from manufacturing cigarettes because we believe that smoking is harmful to consumers. The group we are trying to protect are the consumers, not the manufacturers, who may not even be smokers themselves. Our reason for intervening in the manufacturer’s activity is that it harms others. Nevertheless, the fundamental justification for this is ‘paternalistic’ (not the harm-to-others principle, which entails intervention in the manufacturer’s choices), because it is the consumer who consents to the harm [and must be protected from it]” (Dworkin, 2020: § 2.4). In his view, this is not the same as a case where we prevent cigarette manufacturers from operating because of air pollution (Dworkin, 2020: § 2.4). With these explanations, he believes that in “pure paternalism,” those whose “freedom” is restricted are the very same people who are being protected in the matter of self-harm—such as preventing swimmers from swimming when no lifeguard is present. Conversely, regarding “impure paternalism,” the only difference from the previous case is that the class of persons whose activity is interfered with is broader than the class of persons being protected (Dworkin, 2020: § 2.4).

To put it more clearly, in “pure paternalism,” the class of persons whose “freedom” is restricted is equal to the class of persons whose interests are advanced by the restrictions. But in “impure paternalism,” in attempting to protect a class of persons, we find that the only way to do so is by “restricting the freedom of individuals other than” those who benefit from the restriction. Now, one might imagine that no instance of “paternalism” exists, because such a case could always be justified on “non-paternalistic” grounds, namely preventing harm to others. Thus, we might prohibit cigarette manufacturers from continuing to produce their products on the grounds that we want to prevent illness in others. In this assumption, unlike the emission of pollutants into the atmosphere by the manufacturer (which is a factor creating hazards harmful to the environment), this harm is of a kind that the injured parties, i.e., the cigarette consumers, can avoid. The difference between harm to others and harm to self, where “paternalistic” action is justifiable only in the latter case, is well illustrated in this account by G. Dworkin, who says: “The imposition of harm [...] requires the active cooperation of the victim [or the consumer].” (Dworkin, 1972: 67-8) In other words, it is the consumer himself who: first, consents to his own harm, and second, participates in this harmful act himself and becomes the agent of harm to himself. Therefore, preventing the activity of cigarette manufacturers is not because of the harm these products cause to others, but from the perspective of “paternalism,” this prohibition is to prevent consumers from harming themselves. It is a mistake, both theoretically and in practice, to claim that our intervention in such cases is exactly the same as our intervention to protect against harm to others.[49]

5-2- “End-Regarding/Prudential Paternalism”[50]: In this reading, the goal is to protect the person’s long-term interests. For example, the prohibition of highly addictive euphoric drugs is justified from this perspective on the grounds that while using these drugs brings about happiness[51] , conversely, prohibiting the use of such drugs will lead to a long-term increase in individuals’ autonomy; that is, “the temporary restriction of an individual’s autonomy for the sake of attaining it (= autonomy) in the long term” (Scoccia, 2018: 16). Regarding the above example, G. Dworkin also believes that through “paternalistic” measures, guaranteeing autonomy in the long term sometimes depends on restricting the individual’s autonomy in the short term (Dworkin, 2020: § 3).

6-2- “Legal Paternalism”[52]: Herbert Hart defines the concept of “legal paternalism” by citing a legal rule in English criminal law as follows: “[...] this legal rule in our criminal law that the victim’s consent does not constitute a defense against a charge of murder or intentional assault [by the accused] [...] can be explained as an example of legal paternalism: the use of law to prevent a person from harming himself or [giving] effective consent to others to injure and harm him.” (Hart, 1963: viii) Hart offers another example in favor of “legal paternalism.” He says: the supply and sale of narcotic or sedative drugs or substances, even to adults, is not permitted except with a medical prescription and for therapeutic purposes, and this matter is punishable under criminal law. Hart thinks it is highly dogmatic to say that concerning the law that created this offense, “there is only one explanation,” and that explanation is that the law is not concerned with protecting buyers from harming themselves but only with punishing the seller for his immoral act. Therefore, if “paternalism” is a possible explanation and account in justifying such laws, then “legal paternalism” must, in principle, also apply to the rule of the victim’s non-consent (Hart, 1963: 32).[53] Nevertheless, in Law, Liberty, and Morality[54], Hart presents an ambiguous interpretation of “paternalism.” On the one hand, he defines “paternalism” as aiming to “protect the person and prevent harm to himself” (Hart, 1963: 31), which is the justified definition of “paternalism” upon which most theorists agree, and on the other hand, he considers “paternalism” to be “the prohibition of harm to others and not the prohibition of a person harming himself.” His incorrect explanation of “paternalism,” or the “legal paternalism” he speaks of, lies in the example he gives regarding laws prohibiting animal cruelty. In this regard, he believes: the “paternalistic” action concerning animal cruelty is because this prohibition is due to the suffering of animals, not because of the immorality of torturing them (Hart, 1963: 34). But the question that arises here is whether the animal is the agent of harm to itself, such that preventing its suffering can be considered a “paternalistic” action? In principle, in this case, it is others who are the agents of harm to the animal, and according to the logic of the “harm principle,” such an action should be prevented.[55]

Feinberg’s view regarding “legal paternalism” is also that some prohibitions concerning suicide, euthanasia, drunkenness, the possession and use of psychedelic drugs, various types of gambling and betting, as well as requirements imposed through criminal sanctions, such as wearing seat belts, using helmets, and similar issues, are some of the instances discussed within the domain of “legal paternalism”; he believes there is always a justified and valid reason to support criminal laws in order to logically prevent the person/persons who harm themselves through such actions (Feinberg, 1984: 12-13). It goes without saying that this type of paternalism overlaps with what we described as “broad paternalism”: “the paternalism of the state through the instrument of law.”

اما آخرین نوع قیّم‌سالاری که در این‌ مقاله از نظر ما مهم‌ترین آن‌ها به‌شمار می‌آید، «قیّم‌سالاری اخلاقی» است برخلاف سایر گونه‌های «قیّم‌سالاری‌»، نیازمند شرح و ایضاح بیشتری است، چراکه این مفهوم، گاه با «اخلاق‌‌باوری»، یا همان «اخلاق‌باوری قانونی» [56]، یکی گرفته می‌شود. این در حالی است که میان دو مفهوم «قیّم‌سالاری اخلاقی» و «اخلاق‌باوری قانونی»، تفاوت‌های فاحش و بنیادینی وجود دارد. در بخش بعد، به‌طور خلاصه دربارۀ خوانش‌هایی که پیرامون این مفاهیم و اصطلاحات صورت‌ گرفته به بحث می‌نشینیم و نیز نقدی کوتاه بر نگرش پاتریک دِولین خواهیم داشت. دلیل نقد و بررسی نگرش دِولین این است که او با بیانی مغلق و مبهم، «الزام قانونی اخلاق»[57]، یعنی «الزام قانونی اخلاق متعارف»[58] را ذیل «قیّم‌سالاری اخلاقی» آورده است در حالی که خوانش وی از این الزام، هیچ ربط و نسبتی با آنچه از «قیّم‌سالاری« مراد کردیم، ندارد.

3- اخلاق‌باوری

«اخلاق‌باوری» که معمولاً از آن به «اخلاق‌باوری قانونی» نیز یاد می‌شود و حامیان این نگرش مدافع «قوانین اخلاقی»[59]اند، بر اساس نظر فیلسوفان، رویه‌ای است که قانون‌گذاران در راستای «تحدید آزادی افراد» به این دلیل که فعالیت‌شان از نگاه «اخلاق متعارف و مرسوم جامعه» غیراخلاقی تلقی می‌شود، مداخله می‌کنند- با قطع نظر از اینکه حتی هیچ عامل آسیب‌زننده و ضرررسانی هم به خودِ شخص وجود نداشته باشد. اما در «قیّم‌سالاری اخلاقی»، هدفْ، صرفاً جلوگیری از اضرار اخلاقیِ شخص به خود است و می‌توان و/ یا باید از این اضرار جلوگیری کرد. لئو زِیبرت[60] و فاینبرگ تلقی متفاوتی از «اخلاق‌باوری قانونی» دارند. به اعتقاد این دو متفکر، هرچیزی که اخلاقاً خطا و اشتباه است، با قطع نظر از اینکه این عملِ اخلاقاً خطا، به کسی ضرر می‌رساند یا خیر  باید ممنوع شود (Feinberg, 1988: ix; Zaibert, 2011: 142). البته این تعریف با آنچه که در مدنظر دِولین است انطباق دارد نه با آنچه که استفان و جرج به آن باور دارند، چراکه این دو متفکرْ منع اضرار شخص به خود را هم مصداقی از «اخلاق‌باوری» می-دانند.

برای درک بهتر تمایزی که میان «اخلاق‌‌باوری قانونی» و «قیّم‌سالاری اخلاقی» وجود دارد، اجازه دهید تقریری را که فاینبرگ در یکی از مجلدات محدودیت‌های اخلاقی حقوق کیفری[61] ارائه کرده به اختصار توضیح دهیم. او معتقد است که در «اخلاق-باوری قانونی» برای دولت و/ یا حکومت اخلاقاً این مسأله واجد مشروعیت است که انواع خاصی از اعمال و اقدامات را که نه مضرند و نه موهن ممنوع کند. اما «قیّم‌سالاری قانونی اخلاق‌باورانه»[62] ، یا همان «قیّم‌سالاری اخلاقی»، در راستای حمایت از یک ممنوعیت است برای جلوگیری از اضرار اخلاقی (نه اضرار جسمی، روانی و یا اقتصادیِ) شخص به خود (Feinberg, 1984: 27).

نکتۀ مهم در تعریف «اخلاق‌باوری» این است که پاره‌ای از اعمال «غیراخلاقی/ اخلاق‌گریز»، چه برای عامل مضر باشند چه نباشند، باید ممنوع شوند. همین مسأله، یعنی مضربودن یا نبودن عمل برای عامل، «اخلاق‌باوران قانونی» را به دو دسته تقسیم می-کند؛ هرچند همگی آنان بر مبنای «اخلاق متعارف» به اخلاقی یا غیراخلاقی‌بودن عمل توجه می‌کنند. گروهی از آنان، همانند استفان و جرج، معتقدند برخی اَعمال «غیراخلاقی/ اخلاق‌گریز»، برای مثال «همجنس‌خواهی»، از آنجا که برای عامل و/ یا عاملان مضر است باید ممنوع شوند. با انجام این کار و ممنوعیت چنین افعالی شخصیت افراد بهبود می‌یابد یا، دست‌کم، از زوال و انحطاط بیشترِ شخصیت‌شان‌ جلوگیری می‌کند و، در نتیجه، منافع ارزشمندی را نصیب‌شان می‌کند (Scoccia, 2000: 53). اما گروه دوم، که برجسته‌ترین نمایندۀ آنان دِولین است، بر این باورند که اضرار اخلاقیِ عاملْ امری اساساً نامربوط برای ممنوعیت وی از انجام عملی «غیراخلاقی/ اخلاق‌گریز» است و آنچه مهم است ممنوعیت فعالیت‌هایی همانند «همجنس‌خواهی» است، نه به‌دلیل اضرار شخص به خود بلکه به‌دلیل آسیبی است که چنین اعمالی به باورهای مرسوم جامعه، که عامل همبستگی‌اند، می‌رسانند.

Devlin believes that an “immoral/amoral” act such as “homosexuality,” since it weakens the foundations of society and is an action contrary to the “conventional morality” of the community, must be prohibited and also criminalized. Devlin’s morality in no way considers the moral harm a person does to themselves as a criterion for prohibiting an “immoral/amoral” act, and therefore this reading is a clear instance of “legal moralism” and not “moral paternalism.”

It is also worth noting that regarding the issue of “euthanasia,” Hart believes that this action can be prevented on the basis of “legal paternalism” and a person can be stopped from harming themselves. Hart also uses another term to justify the illegality of this issue, namely “euthanasia”: “physical paternalism.” He believes that since the individual, in this matter, is the agent of harm to their own body, their action must be prevented (Hart, 1963: 33-38; Rose, 1966: 148; Finnis, 2009: footnote 73). One of the benefits of Hart’s “physical paternalism,” which can also be deployed against Devlin’s arguments, is that, for instance, regarding issues such as “homosexuality” or “pornography,” since no physical harm to the person is conceivable, the concept of “paternalism” cannot be invoked to prevent these actions; but unfortunately, Devlin subsumes them under “moral paternalism” and believes in their legal prohibition.

In any case, Devlin positions himself against Hart’s reading and believes that preventing such an action (= euthanasia) is defined under “moral paternalistic” measures. Devlin writes in his book The Enforcement of Morals[64] as follows: “[… the punishment of euthanasia] means the punishment of behavior that society believes is morally harmful, and this [means …] the enforcement of the moral law [= legal moralism].”[65] It is clear that preventing such an action, according to Devlin’s definition, is based on the “immorality/amorality” of the act, not for the purpose of preventing physical harm to oneself. Accordingly, his unconsidered and superficial claim that he presents himself as a “moral paternalist” cannot be accepted. Thus, considering the context in which Devlin defends his position against Hart’s reading, four important points in Devlin’s view must be kept in mind:

1- His reading, contrary to his claim, is not “paternalistic,” because in this reading, the person is not the agent of harm to themselves.

2- Since the criterion for prohibiting certain actions in his view is not the person’s lack of harm to themselves, his reading is a “moralistic” reading, not a “paternalistic” one.

3- Morality in Devlin’s view is what society defines and delineates. What matters to Devlin is that the harm an individual does to themselves holds no importance; rather, what must remain standing at any cost are the “conventional and common moral beliefs of society.”

4- Devlin cannot even be called a “physical paternalist,” for the reason that the prohibition of issues such as “euthanasia” or “masochism,” even if done with the person’s consent, is, according to his definition, not of the “physical paternalism” type but of the “moral paternalism” type.

Considering the third point, two issues regarding Devlin’s morality and his “legal moralism” require clarification:

1-3- Devlin’s “moralistic” view finds meaning under the influence of “conventional and customary morality.” Devlin was concerned with “conventional morality”; a morality that is a factor of social cohesion and a factor for keeping society upright, and whose foundations must never be violated. Preventing “immoral/amoral” activities, such as “homosexuality,” which Devlin’s morality considers “anti-moral/immoral” (!), and not even “immoral/amoral,” is not due to the harm inflicted on the agent (assuming that harm is even conceivable in an issue like “homosexuality”), but because it is considered an insult to conventional and customary moral beliefs (provided, of course, that such an act is considered an insult). According to Devlin’s perspective:

Society has the right to punish any type of behavior that is strongly conceived as “immoral/amoral” by the ordinary members of society. He believed that harm is fundamentally irrelevant to legislation and that the foundation of society is preserved through the conventional morality generally accepted by the public. Social cohesion disintegrates upon the commission of “immoral/amoral” acts and deeds, even if such acts occur in private and even if their performance harms no one.[66]

Also, in re-emphasizing that Devlin’s view and reading is “moralistic” and not “paternalistic,” and that the entry of moral harm to individuals is by no means significant from his perspective, Christian Joppke[67] writes on this matter: In Devlin’s view, the moralization of society through law is not even primarily aimed at preventing harm to citizens (that which Mill emphasizes), but rather the goal of law is to protect and safeguard morality—a morality that is above and prior to individuals (Joppke, 2014: 594).

Devlin believed that one of the “immoral/amoral” acts that is strongly in conflict and contrast with the accepted morality of the society of his time and must be criminalized is the issue of “homosexuality”—even if the “homosexual” act is performed in private and consensually between two adults.[68] On this matter, let us return again to Ten’s discussion, who believed that the prescription for intervention in “individual freedoms” and “paternalistic” measures becomes applicable when a disturbance has occurred in the agent’s decision-making. Ten writes about Devlin’s view: “[...] preventing the free consent of adult homosexuals from engaging in such activity in private [...], since this activity violates the accepted morality of society, means the enforcement of morality, but this prohibition cannot be justified on the basis of paternalism.” (Ten, 1971: 63) Ten illustrates his critique of Devlin with a supposition. He says: Suppose two “homosexual” individuals, both members of a society where “homosexuality” is the highest and most respectable form of sexual desire, come to Devlin’s country and, after entering the country, continue their sexual activities in private. Let us suppose that no scientifically reliable psychological test shows any sign of insanity or abnormal psychological states in these two individuals, and they are also fully familiar with English law regarding “homosexual” relations and the related moral and religious thoughts. Finally, let us also suppose that these two persons suffer from no emotional imbalance and are not affected by any unwanted or overtly coercive economic influences or factors. According to Ten, these conditions are entirely realistic and can easily occur and happen in our current circumstances and are by no means far-fetched. He then quotes Glanville Williams[69] and writes that Williams has probably also taken the wrong path in this regard when he says: “Homosexuals, in general, are clearly more unhappy than heterosexuals, and this seems not to be exclusively due to society’s view and attitude [towards them], but rather stems from their inability to form lasting attachments and dependencies, which [this lack of lasting dependency] itself can be considered due to the absence of children as a [factor of] bond and relationship.” [70]

Contrary to Williams’s assumption, Häyry, citing certain authorities, writes: the inability to form stable relationships and the absence of children—a problem that could, were it permitted, be resolved through adoption—depends greatly on the outlook and attitudes of the law and society. It is quite clear that the enforced secrecy surrounding “homosexuality” is due to restrictive laws and social pressures, which have driven these individuals toward a series of anonymous, nameless persons rather than steady, lasting partners. Consequently, although “homosexuals” in Devlin’s country are more discontented than “heterosexuals,” this situation could change with legal reform and the combating of society’s prevailing prejudices. Given such a premise, the choice of a “homosexual” way of life does not cause discontent, such that the mistaken notion of this decision’s foolishness would lead us to believe that this choice—that is, “homosexuality”—is fundamentally and inherently disordered (Häyry, 1992: 199)—and, like Devlin, to say that from a moral standpoint, the law must prevent “homosexuality” and restrict “individual freedoms.” As it happens, it is the law’s duty to set aside conventional “anti-moral/immoral” beliefs and to “clothe in legal garb” the “true and sincere principles of morality,” in its “normative/ideal” sense, because the law is capable of and/or ought to influence “conventional morality”—in the same way that “the legal prohibition of racial segregation influences public attitudes and alters conventional and customary sensibilities regarding whether sitting next to a black person at a lunch counter is offensive.” (Fletcher, 1987: 534)

2-3- In contrast to Devlin’s approach, which views “legal moralism” from the heights of “conventional morality,” “moral paternalism” is justified on the foundations of “normative morality.” “Conventional morality” has a “descriptive” character; “conventional morality” is a “man-made” morality[72] that can contain different and contradictory rulings from one society to another (= “moral relativism”). Devlin’s morality, by his own claim, is not based on theological or philosophical presuppositions but is a morality grounded in experience—whose manifestation can be found in the understanding of the members of society. What matters more in this morality is the “power of common and customary understanding” rather than the “power of reason and intellect” (Devlin, 1965: 15, 17). Elsewhere, borrowing from the view of Dean Rostow,[73] Devlin says that the “common and customary morality of society,” at any given time, is a combination and amalgam of these dual concepts, simultaneously and alongside one another: custom and belief; reason and emotion; and experience and prejudice/bias.[74]

But the question still remains: why should an act such as “homosexuality” not be considered a threat to “conventional morality” and a factor for the “restriction of the freedom” of such individuals? To answer this question, we will level three criticisms at Devlin’s “anti-freedom” attitude:

1- Ronald Dworkin believes that in Devlin’s reading there is no evidence as to why “homosexuality” would pose any kind of danger or threat to the existence of society. Devlin, without presenting any arguments or evidence, merely believes that deviation from conventional morality is inherently capable of threatening society’s existence and, therefore, such deviations cannot be placed beyond the reach of the law (Dworkin, 1966: 922).

2- The same claim has also been made by Hart, that such acts do not endanger the existence of society. Hart says: “No reputable historian has endorsed this view, and there is in fact a great deal of evidence against Devlin’s claim [that such acts are a threat to society’s existence].” (Hart, 1963: 50)

3- Hart also writes in criticism of this unreasonable and “anti-freedom” attitude: “[...] once we realize that [conventional] morality is necessary for the existence of society, it becomes clear that any kind of immoral act, however much it is done in private, must be recognized as harmful in the long run, because these immoral acts erode the moral principles upon which society is founded, and thus [immoral acts such as homosexuality, even if they occur in private] endanger the existence of society.” (Hart, 1963: 53)

Devlin believed that three factors—

In all forms of “paternalism,” the restriction of individuals’ “freedom” must be justifiable. The justifiability of restricting “freedom” in “paternalistic” actions is based solely on the premise that harm threatens the individual. In “paternalism,” although violating individuals’ “freedom” is morally wrong, when individuals are at risk and in need of assistance, at least in such cases, violating their “freedom” is morally permissible. The justification generally offered in favor of limiting individuals’ “freedom” in the realm of “paternalistic” actions is that the “paternalist’s” action serves the personal interest of the individual and, subsequently, that of society. Another justificatory reason for “paternalistic” action, according to some thinkers, is that when an individual is in a condition where they lack the power to protect themselves, one must rush to their aid and prevent them from harming themselves. Protecting the individual’s interests, safeguarding those incapable of protecting themselves, intervening in the tools and means that expose the individual to danger, or preventing the individual from consuming narcotic and intoxicating substances (which, although they provide the individual with temporary happiness, in the long term endanger their autonomy and free will) are among the issues raised to justify “paternalistic” actions and to prevent individuals from harming themselves, as well as to justify the violation of “individual freedom.” It does not seem morally permissible, for example, to abandon an individual suffering from mental problems, who lacks sound reason and engages in risky behavior. In the reading of “moralism,” however, there is no justified reason for intervening in the “freedom of the individual/individuals”—neither the person’s harm to themselves is important for intervening in their “freedom,” nor their harm to others; merely the fact that the individual performed an act contrary to the “conventional morality of society” makes them deserving of being deprived of the “right to freedom.” The intellectual representatives of “moralism” are concerned with preserving the customs and traditions of society; a society sustained by its conventional and customary morality, where any transgression against this morality, even if committed in private, is punishable. One can easily imagine to what extent, in this conception, the “freedom” of individuals is under threat and violation at every moment. Suppose, hypothetically, that the government and/or the state, in order to preserve the existence of society, steers moral precepts toward “anti-moral/morality-opposing” decrees and rules that the acts and behaviors of “homosexuals,” “people of color,” “religious minorities,” “dissidents,” etc., are contrary to “prevalent and conventional morality”; then, can any security be imagined for such groups at all? The most minimal asset that will be lost for this category of individuals is “freedom.” In “moralism,” conventional morality holds such importance that it is as if safeguarding the “freedom” of believers in this morality depends on violating the “freedom” of those who are not sympathetic to this morality and pay no heed to its decrees. “Devlinian moralism” is based on the principle that “intolerance,” “anger,” and “hatred,” all arising from the feelings and inclinations of society’s members, if they erupt among the members of society and something akin to such feelings regarding “immoral” issues such as “homosexuality” weighs heavily upon society, constitute a justified reason for restricting individuals’ “freedom”; “intolerance,” “anger,” and “hatred” from society are, at least for the moralist Devlin, one of the robust justifications for using criminal law to prohibit “homosexual” activities between consenting adults in private.

“Paternalism” and “moralism,” although both restrict the “freedoms of individuals/citizens,” yet according to what we have argued in this article, “moralism” does not justify this restriction in a reasoned manner. The expansion and promotion of “moralism” as a political theory of states and/or governments can yield counter-intuitive results. Such a theory would give states and/or governments a free hand to seize upon what is intuitively morally unjustified as a tool for maintaining power. For example, a country like China could eliminate and exclude the Uyghur Muslim minority, on the pretext that their existence and presence weakens the foundation and structure of society. It is clear that such an argument is fundamentally fallacious and rooted in “moralism.” Since our primary endeavor in this article was the refutation of “moralism,” we did not discuss or examine the alternative option to “moralism” or the enthronement of “moral paternalism,” nor did we engage in positive argumentation. We will pursue such a matter in another article.

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Persian Sources

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Books

- Bix, Brian. (2014). A Dictionary of Legal Theory. Translated by Mohammad Rasekh and others. Tehran: Ney, 2nd edition.

- Wacks, Raymond. (2021). Law: A Very Short Introduction. Translated by Seyyed Mohammad Hosseini and Mohammad Najafi Kalyani. Tehran: Negah-e Moaser, 1st edition.

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Articles

- Butschweit, Krister. (2020). "John Stuart Mill". Translated by Mohammad Zandi, in Great Thinkers of Moral Philosophy. Compiled and edited by Tom Angier, with effort and editing by Kaveh Behbahani. Tehran: Lega Publishing, 1st edition, pp. 245-266.

- Najafi Kalyani, Mohammad and others. (2022). "The Law's Garb on Morality's Stature; A Critical View on Patrick Devlin's Reading of the Legal Enforcement of Conventional Morality". Journal of Philosophical Research, Vol. 16, No. 32, pp. 514-532.

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English Sources

Book

- Beiser, F. C. (1992). Enlightenment, Revolution, and Romanticism: The Genesis of Modern German Political Thought, 1790-1800. Cambridge: Harvard University Press.

- Devlin, P. (1965). The Enforcement of Morals. Oxford University Press.

- Feinberg, J. (1984). The Moral Limits of the Criminal Law. Vol. 1: Harm to Others. Oxford University Press.

- _________ (1986). The Moral Limits of the Criminal Law. Vol. 3: Harm to Self. Oxford University Press.

- _________ (1988). The Moral Limits of the Criminal Law. Vol. 4: Harmless Wrongdoing. Oxford University Press.

- George, R. (1993). Making Men Moral. New York: Oxford University Press.

- Hart, H. L. A. (1963). Law, Liberty, and Morality. Oxford University Press.

- Raz, J. (1986). The Morality of Freedom. Oxford: Clarendon Press.

- Regan, T. (1984). The Case for Animal Rights. University of California Press.

- Riley, P. (1983). Kant’s Political Philosophy. Lanham: MD: Rowman and Littlefield.

- Singer, P. (1975). Animal Liberation. New York: Random House.

- Stephen, J. F. (1993). Liberty, Equality, Fraternity. Indianapolis: Liberty Fund Inc.

- Timmons, M. (2021). Kant’s Doctrine of Virtue. Oxford University Press.

Essay

- Anderson, E. (1999). “What Is the Point of Equality?”. Ethics. 109 (2). 287–337.

- Arneson, R. (1980). “Mill vs. Paternalism”. Ethics, 90. 470–89.

- Birks, D. (2014). “Moral Status and the Wrongness of Paternalism”. Social Theory and Practice, 40 (3). 483-498.

- Childress, James F. (2015). “Moral Considerations: Bases and Limits for Public Health Interventions”. in Ruth Gaare Bernheim & et. al. (eds.) Essentials of Public Health Ethics 1. Oxford University Press. 21-44.

- Cholbi, M. (2018). “Paternalism and Duties to Self”. in Kalle Grill & Jason Hanna (eds.) The Routledge Handbook of the Philosophy of Paternalism. New York: Routledge. 108-118.

- de Marneffe, P. (2006). “Avoiding Paternalism”. Philosophy & Public Affairs, 34 (1). 68–94.

- Demenchonok, E. (2009). “The Universal Concept of Human Rights as Regulative Principle: Freedom versus Paternalism”. The American Journal of Economics and Sociology. 68(1). 273-302.

- Dworkin, G. (1972). “Paternalism”. Monist, 56 (1). 64-84.

- _________ (2005). “Moral Paternalism”. Law and Philosophy, 24 (3). 305-19.

- Dworkin, R. M. (1966). “Lord Devlin and the Enforcement of Morals”. The Yale Law Journal, 75 (5). 986-1005.

- Finnis, J. M. (2009). “H. L. A. Hart: A Twentieth-Century Oxford Political Philosopher”. The American Journal of Jurisprudence, 54 (2). 133-68.

- Fletcher, G. P. (1987). “Law and Morality: A Kantian Perspective”. Columbia Law Review, 87 (3). 533-58.

- Grill, K. (2007). “The Normative Core of Paternalism”. Res Publica, 13 (4). 441-58.

- Hart, H. L. A. (1967). “Social Solidarity and the Enforcement of Morality”. University of Chicago Law Review, 35 (1). 1–13.

- Häyry, H. (1992). “Legal Paternalism and Legal Moralism: Devlin, Hart and Ten”. Ratio Juris, 5 (2). 191-201.

- Joppke, C. (2014). “Islam and the Legal Enforcement of Morality”. Theory and Society, 43 (6). 589-615.

- Kresting, W. (1992). “Kant’s Concept of the State”, in Howard L. Williams (Ed.) Essay on Kant’s Political Philosophy. Chicago: University of Chicago Press. 143-165.

- Mill, J. S. (1977 [1859]). “On Liberty”. in J. Robson (ed.) The Collected Works of John Stuart Mill. Toronto & London: University of Toronto Press and Routledge: Vol. 18.

- Rose, D. J. (1966). “Devlin P: The Enforcement of Morals”. Federal Law Review 144, Vol. 2 (1). 144-159.

- Rostow, E. V. (1960). “The Enforcement of Morals”. The Cambridge Law Journal, 18 (2). 174-198.

- Scoccia, D. (2000). “Moral Paternalism, Virtue, and Autonomy”. Australasian Journal of Philosophy, 78 (1). 53-71.

- _________ (2018). “The Concept of Paternalism”. in Kalle Grill & Jason Hanna (eds.) The Routledge Handbook of the Philosophy of Paternalism. New York: Routledge. 11-23.

- Shiffrin, S. (2000) “Paternalism, Unconscionability Doctrine, and Accommodation”. Philosophy & Public Affairs, 29 (3). 205–50.

- Sinclair, K. & M. Ross (1986). “Consequences of Decriminalization of Homosexuality: A Study of two Australian States”. Journal of Homosexuality, 12 (1). 119-27.

- Ten, C. L. (1971). “Paternalism and Morality”. Ratio (Misc.), 13 (1). 56-66.

- Williams, G. (1966). “Authoritarian Morals and the Criminal Law”. Criminal Law Review, 132-147.

- Zaibert, L. (2011). “The Moralist Strikes Back”. New Criminal Law Review, 14 (1). 139-161.

Website

- Dworkin, G. (2020). “Paternalism”. Stanford Encyclopedia of Philosophy

- Singer, P. (2021). “Why Vaccination Should be Compulsory”.

- Guyer, P. (2004). “The Final Decade of Kant’s Public and Private Career”. In Kant, Immanuel (1724–1804). In The Routledge Encyclopedia of Philosophy. Taylor and Francis.

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[1]. Seyed Mohammad Hosseini, PhD Student in Public Law, Allameh Tabatabaei University (Corresponding Author).

m[email protected]

Seyed Mohammad Hosseini, PhD Student of Public Law at Allameh Tabatabaei University (Corresponding author).

[2]. Mohammad Yousefzadeh, PhD Student in Public Law, University of Tehran (Farabi).

[email protected]

Mohammad Yousefzadeh, PhD Student of Public Law at Tehran University (Farabi).

[3]. Hossein Dabbagh, Philosophy Tutor at the University of Oxford and Lecturer at the Higher Education Institute for Cognitive Sciences.

[email protected]

Hossein Dabbagh, Philosophy Tutor of Oxford University & Faculty Member of Higher Education Institute for Cognitive Science Studies.

[4]. moralism

[5]. paternalism

[6]. For example, Gerald Dworkin, in one of his writings, uses the example of “homosexuality” to state that there is a clearly meaningful difference between “moralism” and “paternalism.” He says: laws that regulate certain types of sexual activities, for example “homosexuality” among consenting adults in private, are a form of “moralism” that is fundamentally different from “paternalism.” See: (Dworkin, 2005: 305-319).

Of course, “moralism” in his view is based on customs that society deems moral, and it is evident that this conception is entirely distinct from what constitutes “moral truth” and is discussed in “normative ethical” theories.

[7]. moral paternalism

[8]. conventional morality/ descriptive ethics

[9]. normative ethics

[10]. Harm Principle

[11]. amoral

[12]. immoral: The reason we have chosen the equivalent “non-moral/amoral” for the word amoral and “anti-moral/immoral” for the word immoral is that, in “moralistic” readings, the criterion and measure of whether an act is moral or not is what the custom of society recognizes as “conventional morality”—which can itself sometimes have an “anti-moral/immoral” dimension. See: (Najafi Kalyani et al., 1401: footnote no. 2, p. 517). Furthermore, the “non-moral” essentially lies outside the sphere of morality or “ethics” and is a matter unrelated to morality.

Accordingly, throughout the rest of the text, wherever we use the terms “anti-moral/immoral,” we mean that a behavior is in conflict with “normative ethics,” and wherever we use the terms “non-moral/amoral,” we mean by employing these terms that a behavior stands in opposition to the “conventional and customary morality of society.”

[13]. H. L. A. Hart (Herbert Lionel Adolphus Hart) writes of Devlin’s view, as one of the prominent representatives of the “moralistic” outlook: Conventional morality, from the perspective of Lord Patrick Devlin, is the cement of society—without it there would be aggregates of individuals but no society. Devlin believes: even if a particular immoral act does not harm others, endanger them, or cause their corruption, and even when performed in private it causes no psychological distress or offense to others, such acts should still be prevented. Thus, what is of no concern at all to “moralists” is whether an act causes harm to others or not (see: Hart, 1963: 48-9).

[14]. Chin Liew Ten

[15]. James Fitzjames Stephen

[16]. Robert P. George

[17]. see: (George, 1993; Stephen, 1993; quoted in Scoccia, 2000: 53).

[18]. Devlin claims that his view is a form of “moral paternalism,” whereas, as we shall soon see, his view on this matter involves neither harm to others nor harm to oneself—and this differs from “moral paternalistic” readings whose aim is to prevent moral harm to oneself.

[19]. see: (Devlin, 1965: 1-25).

[20]. moral relativism

[21]. State or/ and Government

[22]. universal

[23]. well-being

[24]. critical

[25]. Joel Feinberg

[26]. For a study of some views and arguments from a Kantian perspective regarding why the government should not act as a “moral paternalist,” see:

(Beiser, 1992: chapter. 2; Riley, 1983: 131; Kresting, 1992: 151; Demenchonok, 2009: 281-6; Timmons, 2021: 86)

Of course, some Kant scholars believe that the concept of “moral paternalism” can be derived from Kant’s moral philosophy. For a study of one such account, see: (Cholbi, 2018).

[27]. despotism

[28]. For further study on Kant's view, see: (Guyer, 2004: § 14).

[29]. Danny Scoccia

[30]. goods

[31]. Brian Bix

[32]. see: (Ten, 1971: 60-2)

[33]. altruism

[34]. Kalle Grill

[35]. see: (Grill, 2007; quoted in Scoccia, 2018: 12)

[36]. prevention of harm to others

[37]. soft paternalism

[38]. hard paternalism

[39]. see: (Mill, 1997 ]1859[: 294)

Also, regarding Mill's view on the concept of "paternalism," see: (Butschweit, 1399: 262).

[40]. Of course, Scoccia holds a view contrary to Feinberg's and, like G. Dworkin, believes that "paternalism" applies only to sane and informed individuals. In the opinion of these two thinkers, in the examples mentioned, preventing harmful activities here has a "moralistic" rather than a "paternalistic" character (Scoccia, 2018: 14). Scoccia also believes that this type of "paternalism" includes ignorance or mistaken belief about the consequences of a choice (Scoccia, 2018: 14).

[41]. narrow paternalism

[42]. broad paternalism

[43]. weak paternalism

[44]. strong paternalism

[45]. For a similar argument, see: (Singer, 2021)

[46]. The Principle of Beneficence

[47]. pure paternalism

[48]. impure paternalism

[49]. For a similar exposition, see: (Scoccia, 2018: 13). And also, for a study of some readings justifying the separation of harm to self and harm to others, albeit with relatively different interpretations, see the sources cited in Scoccia's work (Scoccia, 2018):

(de Marneffe, 2006; Arneson, 1980: 271-2; Shiffin, 2000; Anderson, 1999: 300-1).

[50]. prudential paternalism

[51]. happiness

[52]. legal paternalism

[53]. see, also: (Häyry, 1992: 191-4)

[54]. Law, Liberty and Morality

[55]. Also, Tom Regan and Peter Singer have raised the doubt in this regard that it is still unclear whether the suffering of animals can be considered an instance of “harm to others” or not. If we assume that animal suffering is also an instance of “harm to others” and, on this basis, according to the “harm principle,” we rule to prohibit such an act, it becomes clear how far Hart has distanced himself from the original concept of “paternalism,” in which only the harm a person does to themselves is relevant. On this, see: (Häyry, 1992: 194).

Also, for the two sources Heta Häyry cites in her work from Regan and Singer, see: (Regan, 1989; Singer, 1975).

In this regard, and in support of our claim, Hart remained faithful to a modified version of the formulation of the “harm principle.” On this matter as well, refer to these two sources: (Hart, 1963: 33; Rose, 1966: 144-53).

[56]. legal moralism

[57]. legal enforcement of morality

[58]. legal enforcement of conventional morality

[59]. moral laws

[60]. Leo Zaibert

[61]. The Moral Limits of the Criminal Law

[62]. moralistic legal paternalism

[63]. physical paternalism

[64]. The Enforcement of Morals

[65]. see: (Devlin, 1965: 135-7)

[66]. For an extensive study of this argument from Devlin's perspective, see: (Devlin, 1965: 1-15).

[67]. Christian Joppke

[68]. In another article, we have critiqued this view of Devlin and the baselessness of his argument that “immoral and amoral” matters such as “homosexuality” weaken the foundation of society, for which he also provides no evidence. For this purpose, see: (Najafi Kalyani et al., 1401).

For a detailed account of Devlin's reading along with the critiques leveled against his view, refer to these sources:

(Wacks, 1400: 36-128; Devlin, 1965; Hart, 1963).

Also, for a substantial critique by Ronald Myles Dworkin, who critiques Devlin's view from an anthropological perspective, see: (Dworkin, 1966: 986-1005). It is worth mentioning that this prominent thinker enumerates four kinds of moral judgments that generally do not arise from an authentic/genuine moral belief. One of these conventional moral judgments is judgment based on “prejudice/bias.” Dworkin says: “Prejudice” is a reason that does not meet the conventional standards for meaningful moral judgments, such as possessing certain physical traits over which individuals have no control and are simply born with; or, for example, the reason given is based on the idea that “homosexuals” are base and depraved because they lack “heterosexual” desires. In these cases, the basis of the reason is a form of prejudice. For a comprehensive study of Dworkin's critique of Devlin's view, see: (Dworkin, 1966: 994-7, 1000).

Devlin himself explicitly states that moral judgments are based on “feelings and inclinations” that have no rational foundation (Devlin, 1965: viii, 15).

[69]. Glanville Williams

[70]. see: (Glanville, 1966; quoted in Ten, 1971: 59)

[71]. see: (Sinclair & Ross, 1986; quoted in Häyry, 1992: 199)

[72]. We have borrowed this term from Hart, who used it in one of his articles to describe “conventional morality” (Hart, 1967: 1).

[73]. Dean Rostow

[74]. see: (Dworkin, 1977: 253-4; Rostow, 1960: 174-97; Devlin, 1965: 95)

[75]. perfectionist

[76]. Joseph Raz

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