Individual Responsibility and Paternalism in Health Law

Abstract

Health is a special good. Health problems have an existential dimension that other social deficits do not have in the same way: As bad as it may be to have no work or to have to eke out a living on a limited income, the experience of a serious or even life-threatening disease and its associated pain, impairments, and mental stress is incomparably worse. Health is additionally a conditional – or in the Kantian sense of the word – transcendental good, because it represents the basis for many of life’s other needs. As they say, “Health isn’t everything, but you don’t have anything if you don’t have your health.” To be able to deal with a constraint on lifestyle caused by health problems – as much as it is medically possible – is of central importance in a competitive meritocracy: In this way equality of opportunity and a leveled playing field will be produced that initially legitimizes the stratified results of the competitive process (Daniels 1985). This might also explain why – similarly to education – there is massive political opposition against the social stratification of health.