Justification Of Criminalizing Gambling Essay

1246 words - 5 pages

This paper will discuss whether the state of Hawaii is justified in criminalizing gambling activities, and whether the punishment is justified. Before I discuss the issue of paternalism, I want to clarify why I refrained from using other philosophical approaches to justify Hawaii’s laws. A legal moralism point of view would state that the justification for the criminalization of gambling is simply that gambling is morally wrong. The thought is that since gambling is considered morally wrong in itself, there should be laws to prevent such actions. This is an unfavorable approach because it seems to be driven by circular reasoning, or assuming what it is attempting to prove.
The Harm ...view middle of the document...

Marmor, Phil135 Lecture, (09/09/14). Bobby’s freedom to enjoy ice cream is restricted in order to force him to get his flu vaccine. Bobby’s parents act on the best interest of their child because Bobby himself is not in a favorable position. The means of getting a vaccine is a strong excuse to restrict Bobby’s freedom. Paternalism takes many forms based on certain conditions which will be analyzed in order to conclude if paternalism justifies the criminalization of gambling. For the sake of the paper, let it be assumed that legislators have created laws for paternalistic reasons.
First, conflicts arise in the contrast between hard and soft paternalism. A soft paternalist agrees that “A” may treat “B” paternalistically when B’s conduct is non-voluntary. However, if B’s conduct is fully voluntary then no intervention is permissible (Douglas Husak, ‘Paternalism’, in A. Marmor (ed.) Routledge Companion to Philosophy of Law 2012). For example, let it be said that “B” is completely oblivious of the risks and harm of gambling. In fact, “B” is really bad at probability and believes that the outcome of winning is one hundred percent. In this case, “A” would be justified in treating “B” paternalistically because “B” is not in a favorable position to make the right decision. While this justification is useful in the context of a personal relationship, it is much less valid in law, as Husak states “law is necessarily general and applicable to large numbers of persons whose circumstances vary.”(Douglas Husak) In terms of soft paternalism, Hawaii’s restriction of one’s ability to gamble is justified in non-voluntary cases, however, not all persons would fall into the non-voluntary category, and are then subject to hard paternalism. Hard paternalism agrees that “A” sometimes may treat friend “B” paternalistically even though B’s conduct is voluntary. For example, “B” is completely aware of the harm of gambling, and has Ph.D. in statistics. “A” would be able to restrict B’s freedom even though “B” conscious is aware of the harm he will face. So, if the law was created with soft paternalistic reasoning it would contradict itself based on the foundation that a soft paternalist would respect one’s consciences choices. However, if we assume legislators created a law with a hard paternalism foundation we run into the problem of a person’s right to autonomy.
There is a sense of personal autonomy that flags hard paternalistic reasoning as not justifiable. Let personal autonomy be defined as a person’s ability to be the author of their own lives (Douglas Husak). Paternalistic laws are not meant to interfere with one’s personal autonomy but rather call for the...

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