Paternalistic Interventions: What do They Presuppose About Human Rationality, and When are They Justified?

In this article, I examine a pressing and recurring problem for liberal thought: paternalistic interference with freedom. I focus on its main premise: a deficit in the affected agent’s deliberation that results in harm to the agent. I analyse how human beings are viewed by liberal legal norms — views about the effective rationality of normative subjects. I identify and characterise the four necessary and sufficient conditions to justify a paternalistic intervention. I outline several scenarios involving different defects in individual deliberation by identifying the agent’s true self and basic interests. Finally, I contrast this repertoire with projects to build an “anthropology in law”, such as the one recently proposed by Moreso. My critical evaluation concludes that attributing “vulnerability” generically or hastily, as Moreso does, to the human collective, without precisely determining deliberative flaws, can lead to an excessive expansion of paternalistic interventions and an undue restriction of individual autonomy.