법적 후견주의 ― 개념분석적 고찰 ― = Legal Paternalism ― A Conceptual-Analytic Study ―

다국어 초록 (Multilingual Abstract)

To what extent can legal exercise of state power ever be justified? There
are so many answers to this question including anarchism, liberalism,
communitarianism, totalitarianism etc. Among them, paternalism, strictly
speaking, legal paternalism is one of the most reasonable and plausible
solutions. It justifies legal exercise of state power to protect a person from
self-regarding harm against one’s will.
Paternalism can be defined broadly as ‘a interference with another for his
own good’. It can be classified such pairs of concepts as hard/soft
paternalism, physical/moral paternalism, strong/weak paternalism, positive/
negative paternalism, passive/active paternalism etc.
Legal moralists argue against paternalism, while liberals who abhor moral
legalism also criticise it. According to harm principle based on classical
liberalism, liberty-limiting interference can be justified to protect a person
from not self-regarding harm, but other-regarding harm. But, legal
moralism justifies liberty-limiting interference in order to protect a common
morality itself as well as a person from harms.
In a sense, paternalism contradicts harm principle on the one hand, legal
moralism on the other hand. It paradoxically means that paternalism can be
compatible with harm principle as well as legal moralism. Can paternalism
really coexist with harm principle or legal moralism? A conceptual-analytic
study on paternalism is necessary to answer to the question.

참고문헌 (Reference)

1 J. S. Mill, "자유론" 서광사 1992

2 Oxford, "The Enforcement of Morals" Oxford: OUP 1-25, 1965

3 P. Devlin, "The Enforcement of Morals" 1-25, 1959

4 G. Dworkin, "Paternalism: Some Second Thoughts in Paternalism" University of Minnesota Press 105-111, 1983

5 R. Arneson, "Paternalism" Routledge 250-252, 1998

6 G. Dworkin, "Paternalism" Stanford Encyclopedia of Philosophy 2-3,

7 G. Dworkin, "Paternalism" The Monist 56 64-84, 1972

8 T. Beauchamp, "On Justifications for Coercive Genetic Control in Biomedical Ethics and the Law" Plenum 361-373, 1976

9 Paternalism, "Minneapolis" University of Minnesota Press 19-34, 1983

10 H. L. A. Hart, "Law, Liberty and Morality" Oxford: OUP 1963

11 J. Feinberg, "Harm to Others" 1 : 26-27, 1984