The Most Reliable Judgment Standard for Soft Legal Paternalism
The Most Reliable Judgment Standard for Soft Legal Paternalism
This author shows how the main principle would endorse a new ground-level principle of weak legal paternalism, the most reliable judgment standard, and compares this standard with the most influential nonconsequentialist standard, Joel Feinberg’s voluntariness standard. The most reliable judgment standard will permit legal paternalism if it is reasonable to believe that the subject (or a majority of those who are subjected to the paternalism) will or would come to unequivocally endorse it. The chapter illustrates the difference between his and Feinberg’s standards with hypothetical examples of drug and suicide prohibitions. The chapter explains his consequentialist account of autonomy and shows how that account fits the legal standard of autonomy. However, it does not fit the standard statement of the insanity defense. The chapter explains why the insanity defense should be revised.
Keywords: autonomy, bilateral future endorsement, consequentialism, drug laws, Gerald Dworkin, explicit voluntary endorsement standard, Joel Feinberg, insanity defense, main principle, rights against paternalism, suicide, unequivocal endorsement
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