By Carl Greaux
In St. Kitts and Nevis many of our laws are paternalistic. These laws try to protect us from our own behaviour. For example, the government has worked closely with the Royal St. Christopher & Nevis Police Force so that we can have seat belt laws, motorcycle helmet laws, speed limits, drug laws, alcohol consumption and sale laws, as well as laws limiting certain types of sexual behaviour (bestiality, buggery, sodomy etc). The strict libertarian view would hold that our government has no business interfering in a person’s decisions about these behaviours as long as they don’t negatively impact on others. The opposing view is that the person is a member of society (and everyone is) and he or she has a value to that society, and society is therefore compelled to protect the person with his or her cooperation.
It may also be true that there are no harmful or potentially harmful behaviours to oneself that do not harm others, thus indirectly society is protecting others when it controls the individual. Persons speeding may crash into someone else and drug addicts may commit crime to support their habits and these incidents create expenses to the government and, by extension, increase our national debt.
Here in St. Kitts-Nevis, some people believe that government can only justify paternalism with certain restrictions. First, a paternalistic law is only appropriate if the decision-making ability of the actor is someone impaired by lack of knowledge or by something else. An example of this would be our child labour laws, which restrict the hiring of children for their own protection. Another example is the laws that restrict the sale and consumption of alcohol by those under certain age. Again, this law is intended to save children from themselves, with the presumption that their lack of knowledge prevents them from making rational decisions.
The second rule of the paternalism is that the restriction should be as limited as possible. For example, laws against driving under the influence - that is section 51 (1) (driving, attempting to drive or being in charge of a vehicle) of our traffic laws that defines the legal intoxication, which is the point where intoxication may affect behaviour.
Finally, the third rule of the paternalism is that the laws should only seek to prevent a serious and irreversible error, such as a death from a drunk driver or someone under the influence or a traffic accident causing malicious damages to public or private property, and so on. According to Thompson (1980), these rules seek to create a balance between an individual’s liberty and government control.
Paternalistic laws can be supported by an ethics of care. In this framework, morality is viewed as integral to a system of relationship the individual is seen as having ties to society and every member of society; relationships involve responsibilities as well as rights. We can expect the minimum level of care necessary for survival from society under the ethics of care. However, the corollary of this is that society also can care for us by restricting harmful behaviours.
Rights are not important in this framework; therefore, to ask whether society has a right to intervene or an individual has a right to a liberty is not relevant to an ethics of care. Rights are important under ethical formalism; individuals must be treated with respect and as ends in themselves. This may result in recognizing the rights of the individuals engage in careless or even harmful behaviour as long as it is consistent with the universalism principle of the categorical imperative. But under the ethics of care, the individual’s rights are not as important as his or her well-being. So let us embrace legal paternalism for what its worth in our country.
