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Counting the dragon's teeth and claws: the definition of hard paternalism.

Journal article published in 2004 by Thaddeus Mason Pope ORCID
This paper was not found in any repository; the policy of its publisher is unknown or unclear.
This paper was not found in any repository; the policy of its publisher is unknown or unclear.

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Question mark in circle
Preprint: policy unknown
Question mark in circle
Postprint: policy unknown
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Published version: policy unknown

Abstract

In his classic 1897 essay, The Path of the Law, Oliver Wendell Holmes Jr. warned against blind imitation of the past and called for "enlightened skepticism" toward the law. He described the first step of this critical examination as getting "the dragon out of his cave and on to the plain and in the daylight" so that "you can count his teeth and claws and see just what is his strength." Over the past thirty years, disagreements over the appropriate definition of "paternalism" have often masked further disputes over the circumstances under which the restriction of substantially autonomous self-regarding conduct is permissible. Holmes' dragon, hard paternalism in this case, has remained hidden in its cave. In this article, I pull the dragon out of its cave so that we can get a good look at him. I address the conceptual problems surrounding paternalism by rigorously defending a definition of "hard paternalism" containing logically individually necessary and jointly sufficient conditions. Moreover, the benefits of a clear and comprehensive definition are not only conceptual. Defining hard paternalism with an adequate degree of precision will enable more useful normative dialogue about the conditions under which hard paternalistic restrictions are justifiable.