Libertarianism and Legal Paternalism

In his book Principles of Morals and Legislation, the eighteenth-century philosopher and legislator Jeremy Bentham divided all laws into three kinds: (1) laws designed to protect you from harm caused by other people; (2) laws designed to protect you from harm caused by yourself; and (3) laws requiring you to help and assist others. Bentham held that only the first kind of laws were legitimate; and in general libertarians would agree with him. The third class of laws, sometimes called "good Samaritan" laws, are greatly on the increase today, and their principal examples are not laws requiring you to assist persons in trouble (such as accident victims) although these are on the increase, but rather laws-both Congressional and bureaucratic- having to do with income redistribution, such as welfare and food stamps and programs for the disadvantaged. Bentham argued persuasively against these laws as well; but he also condemned laws of the second kind, and it is these I propose to discuss in this paper. Legislation designed to protect people from themselves is called "paternal legislation," and the view that such laws are legitimate and ought to be passed is called "legal paternalism."

Volume 4, Number 3 (1980)