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Law, Economics, and Morality$
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Eyal Zamir and Barak Medina

Print publication date: 2010

Print ISBN-13: 9780195372168

Published to Oxford Scholarship Online: May 2010

DOI: 10.1093/acprof:oso/9780195372168.001.0001

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Legal Paternalism

Legal Paternalism

Chapter:
(p.313) ten Legal Paternalism
Source:
Law, Economics, and Morality
Author(s):

EYAL ZAMIR

BARAK MEDINA

Publisher:
Oxford University Press
DOI:10.1093/acprof:oso/9780195372168.003.10

This chapter analyzes legal paternalism in its various manifestations. It first argues that contrary to prevailing notions, normative economics does not entail principled anti-paternalism. In fact, the consequentialist nature of standard welfare economics — namely the absence of constraints on promoting good outcomes — opens the door to limiting people's freedom with a view to promoting their own good. Economists ordinarily object to paternalism, but rather than pointing to the intrinsic value of freedom, they base their anti-paternalistic stance on various secondary considerations, thus missing the real dilemmas inherent in paternalism. Adding deontological constraints to the analysis better captures the pertinent issues, and provides more accurate yardsticks with which to evaluate paternalistic legal norms and explain existing ones. The chapter constructs formal models to evaluate the desirability of paternalistic legal norms from both economic and moderate deontological perspectives.

Keywords:   legal paternalism, anti-paternalism, consumer law, rationality, efficiency, preferences, well being, behavioral law, autonomy

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