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 Principle, coined by John Stuart Mills, is a common standard when it comes to enforcing morality. The harm principle states that the only reason the state would have justification in restricting ones freedom is to prevent harm to other people. However, Mills goes on to say that a person’s own good is not enough reason to restrict their freedom as they are not harming others. One may try to persuade a person to do otherwise, but one may not force a person to act against how he or she sees fit as long as they are not harming anyone. Gambling does not fit this criteria being that a person who engages in this activity is conscience of the consequences that comes with gambling and still willingly chooses to participate. The main issue at hand is the conflict of self-harm. The restriction of one’s ability to gamble clearly comes from a paternalistic background. However, paternalism itself is problematic in that the justification of criminalizing gambling cannot be used as a coherent argument for the criminalization of gambling. Paternalism is simply restricting ones freedoms against their will, and is defended by the fact that the person is now better off or protected from harm. For example, we can take the case of Bobby, the child that we discussed in class (A. 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 best conditions for one to lead their own lives. For example, seat belt laws could be seen as justifiable because they would decrease injuries and would allow one to live his or hers own life. There is an intuitive instinct that makes us value a person’s consent, which restrains many people from taken action against one’s will. However, there is a clear distinction between the examples provided and the gambling legislation at hand. Restriction of gambling interferes with one’s personal autonomy by restricting one’s life without justification of preserving one’s personal autonomy. This violates a person’s ability to be the author of their own life. If we place high value on the theory of autonomy then gambling legislation is impossible to justify. Lastly: the problematic punishment of gambling under paternalistic reasons. Paternalism becomes much more difficult to justify when a criminal punishment is attached to the restriction of one’s freedom. In the case of Bobby, the means to attain Bobby’s well-being was to restrict ice cream consumption in order to force the child to get the vaccination. However, in the case of gambling, the means to achieve restriction for one’s own good is great hardship or deprivation of liberty (Douglas Husak). If a punishment is too severe, the net gain from being restricted and the severity might leave one worse off. On the other hand, if a punishment is less severe then there is no incentive to follow the law. By making gambling a punishable misdemeanor offense you stray away from the motive of restricting the action, under paternalistic law, in the first place. How might offender’s punishment be justified in? If we take a consequentialist view of punishment we might be justified in punishing an offender to deter others from committing the same crime. This would contradict the main foundation of paternalism where the punishment is used as a deterrent rather than the offender’s best interest. Also, it is also hard to believe that fines or even imprisonment is in the best interest of the offender. If the purpose of the law is to treat one paternalistically they need to have the offender’s best interest in mind thus not being able to justify criminal punishment under paternalistic law. Many difficulties are encountered when it comes to creating sound arguments for the criminalization of gambling. As mentioned before, one cannot confidently approach justification from legal moralism, the harm principle, and paternalism. Paternalism is the theory that comes closest to achieving justification but runs into major conflicts that cannot be over look which makes criminalization of gambling unjustifiable.
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