Paternalism and Moral Limits of Criminal Law

This paper compares the paternalistic program of protecting the person from self-regarding harm or directly from moral evil for the sake of own moral integrity with some criticism about the libertarian foundation of anti-paternalism, as unable to protect the person in weakness: in particular, the spill-over effects of the ‘individual-oriented’ Harm Principle mediated by the Volenti maxim; the inadequacy of simple ‘procedural’ guarantees, such as the validity of consent, in order to protect human being in weakness; the question of the social acceptance of some behaviours and the problem of ‘miscalculation’ or ‘misalignment’; the lack of capacity of the abstract concept of individual freedom to enable the social cohesion and coexistence, which are conditions of freedom too. The aim of the chapter is to reveal the current risk of transition from the respect for patient autonomy to a new paternalism, namely of the best interests indeed, that enshrines the quality of life as the main technocratic ‘gold’ standard, established by experts, and to highlight the moral limits of criminal law in order to offer solutions.