Limiting Liberty to Prevent Obesity: Justifiability of Strong Hard Paternalism in Public Health Regulation Response

Because of the largely self-regarding nature of obesity, many current and proposed public health regulatory measures are paternalistic. That is, these measures interfere with a person’s liberty with the primary goal of improving that person’s own welfare. Paternalistic public health measures may be effective in reducing obesity. They may even be the only sufficiently effective type of regulation. But many commentators argue that paternalistic public health measures are not politically viable enough to get enacted. After all, paternalism is repugnant in our individualistic culture. It is “wrong” for the government to limit our liberty for our own good. In this Article, I argue that such pessimism is misplaced. Defeatist and despairing commentators are working with an impoverished conceptual framework. I offer a richer vocabulary. By linking current debates in public health ethics to classic works in normative jurisprudence and the philosophy of law, I distinguish ethically distinct types of hard paternalism. Each has its own unique conditions for justifiability. By focusing on these differences, I demonstrate that there are abundant opportunities for hard paternalistic regulatory measures to address obesity and other public health problems