Direct paternalism: criminalizing self-injurious conduct.(SYMPOSIUM)

"Direct" legal paternalism in criminal law refers to the use of criminal sanctions to penalize those who harm or attempt to harm themselves. Here, two questions arise. The first concerns direct paternalism generally: namely, the legitimacy of employing any form of state coercion to prevent a person from injuring himself. The second question--which this essay addresses--relates to the appropriateness of using criminal sanctions for this purpose. This latter issue is to be distinguished from (the more complex) question of "indirect" penal paternalism: punishing someone for killing or injuring another at the latter's behest (see section V below).

German law generally avoids direct paternalism in its criminal law. Attempting suicide, or deliberately injuring oneself, are not crimes under that country's criminal statutes (1)--although there are certain apparent exceptions, the most salient of which is the prohibition against the acquisition and possession of drugs. (2) There has not been much discussion in Germany, however, about why paternalistic criminal prohibitions should be eschewed. The leading criminal-law commentator, Claus Roxin, asserts that self-damaging behavior should be seen as part of the person's self-determination and hence not a proper subject of criminal sanctions; but the thesis has not been debated extensively by German scholars. (3) It is this question of rationale that I shall address here.

Although existing criminal law in Germany is sparing in its use of direct paternalistic prohibitions, it makes extensive resort to indirect paternalism. Killing another person at his request is a crime under the German Penal Code (4) as is (with important exceptions) injuring him with his consent. (5) Yet it remains to be explained why the criminal law should be so stringent with killing or injuring another at his request, when it is so permissive with direct self-injury. (6) In order to address this latter issue, it is necessary to provide an analysis of direct paternalistic prohibitions--as this essay undertakes.

I Coercive State Intervention to Prevent Self-Harm: A Limited Paternalism?

Paternalistic interventions in law have two salient characteristics. First, the aim of the intervention is the affected person's own good, or the prevention of harm to him. Second, the intervention involves compulsion: the person may not refuse the proffered assistance. It is this second characteristic--compulsion--that distinguishes paternalistic interventions from other forms of state social assistance. One may therefore be skeptical about state-imposed paternalistic interventions, while favoring (as I do) an extensive scheme of social welfare supports.

In Anglo-American literature, the debate concerning legal paternalism begins in the mid-nineteenth century with John Stuart Mill's formulation of the Harm Principle and his critique of paternalistic interventions. (7) In the 1980s, there was extensive further discussion--with Joel Feinberg, John Kleinig, Gerald Dworkin, and Joseph Raz being the most notable contributors (8)--although interest seems to have subsided recently. (9) The discussion of paternalism in the 1980s also did not pay much attention to possible principled differences between paternalistic criminal prohibitions and other forms of coercive state intervention aimed at preventing self-damaging conduct (for example, in civil or administrative law).

My analysis begins with a presumption against paternalistic interventions. Ordinarily, the state should not employ its coercive powers to prevent an individual from injuring himself. This norm rests on an idea of autonomy: paternalistic interventions infringe the actor's entitlement to decide about his own life. (10) But autonomy in what sense?