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The paradoxes of legal paternalism and how to resolve them*

Published online by Cambridge University Press:  02 January 2018

Anthony Ogus
Anthony Ogus*
Affiliation:
University of Manchester; University of Rotterdam
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Abstract

Legal paternalism occurs when the law forces individuals to avoid certain risks (‘hard paternalism’), or, without coercion, nudges them away from such risks (‘soft paternalism’), on the ground that otherwise they will make unwise decisions. The questions when and how such approaches should be taken are of fundamental importance in a society in which there are increasing risks to health and livelihood resulting from technological developments and greater freedom of choice. However, they are not openly addressed in policy-making circles and have also been neglected in the European legal literature. In this paper, I attempt to explain these paradoxes and to outline a theoretical benefit–cost framework for determining when and how legal paternalism might be considered appropriate.

Type
Research Article
Information
Legal Studies , Volume 30 , Issue 1 , March 2010 , pp. 61 - 73
Copyright
Copyright © Society of Legal Scholars 2010

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Footnotes

*

I am grateful to Willem Van Boom and to members of the Behavioural Approaches to Contract and Tort Research Programme for comments on an earlier presentation; also to Professor Jenny Steele and the editors for some helpful suggestions.

*

This is an extended version of an inaugural lecture delivered at the University of Rotterdam on 14 May 2009.

References

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31. Camerer et al, above n 13.

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40. Coase, R ‘The problem of social cost’ (1960) 3 Journal of Law and Economics 1 CrossRefGoogle Scholar; and see Ogus, A ‘Inglaterra sin pescado y patatas fritas, o qué más deberíamos haber descubierto en el ensayo de Coase sobre costos sociales’ (‘England without fish-and-chips, or what more should we have discovered in Coase's social cost paper?’) (2002) 3 Revista Argentina de Teoría Jurídica.Google Scholar