No Such Thing as a Free Lunch: Paternalism, Poverty, and Food Justice

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III. PATERNALISM TOWARD THE POOR

The two policy initiatives analyzed in Part II both fit the definition of "strong" paternalism, in that they involve one party taking action to benefit a second party without the second party's consent, and in a way that is either coercive or involves a restriction of liberty. (209) The literature is thick with debates over whether or not strong paternalism is ever a permissible justification for government action. (210) The argument has typically focused on government actions such as mandatory seat belt laws or anti-smoking laws, which affect broad swaths of the population. (211)

As Part II set forth, the current discussion about how to promote healthy eating among low-income populations has led to a fierce debate about the appropriateness of paternalistic laws that single out the poor. A number of commentators have argued or implied that such laws present unique cause for concern, regardless of how one feels about paternalistic laws of more general applicability. The main source of the concern, it seems, is a perception that singling out disadvantaged groups for differential treatment is a form of discrimination, and that such laws are therefore contrary to the ideal of equality. (212)

Rather than starting with the question of whether broadly applicable paternalistic laws such as seat belt laws are ever justified, this Part will begin with the assumption that such laws are sometimes appropriate, and will proceed to an examination of the unique issues that are posed when such laws target marginalized groups such as the poor. The starting point for this discussion is a review of past literature that has touched on the issue of paternalistic laws that target disadvantaged or marginalized groups. The legal scholarship on this topic, which is discussed in Part A, is limited and fragmented, but nonetheless illuminating.

Subpart 1 of Part A will examine the arguments in the literature against such targeted paternalism, while Subpart 2 will look at the literature's arguments in favor of such paternalism.

Based on these arguments, Part B will set forth a series of questions that can be used to analyze paternalistic laws that target disadvantaged or marginalized groups. As the later portions of the Article will demonstrate, these questions can help deepen the conversation about this type of targeted paternalism and about specific policies such as the case studies this Article examines. Most notably, these questions can help illuminate the unspoken theories of justice and equality that often underlie these debates. Probing those underlying theories will prove useful for anyone involved in such debates, but in light of the food justice movement's failure--and need--to articulate a coherent vision of justice and equality, it will be particularly helpful to that movement.

A. Legal Theory

1. Arguments Against Targeted Paternalism

The most direct examination of how the debate around strong paternalism--which I will refer to henceforth simply as paternalism--is affected when the subject population is a disadvantaged group can be found in Duncan Kennedy's seminal 1982 article "Paternalist and Distributive Motive in Contract and Tort Law, with Special References to Compulsory Terms and Unequal

Bargaining Power." (213) Kennedy's general argument--which he makes prior to addressing the issue of laws aimed at disadvantaged groups--is against a principled position of anti-paternalism, and in favor of an ad hoc approach. (214) Specifically, "what we need when we make decisions affecting the well-being of other people is correct intuition about their needs and an attitude of respect for their autonomy." (215) Even then, "[t]here isn't any guarantee that you'll get it right." (216)

The chances that one will "get it right" decrease when a public decision maker acts on behalf of those outside his social group:

   Since private life takes place in a context of social segregation,
   if the actor is a white middle class person acting
   paternalistically, the other is also likely to be a white middle
   class person. …