Limitations And Bounds Of Legal Paternalism On The Right Of Self-determination

Smoking is harmful and intricate so that the legal nature of smoking cannot reach the consensus. However, traced to the history of relative theories on right, it is not hard to find that smoking is the right which embodies multiple qualities, such as the right of freedom, the right of claim, at the same time, the right cannot be proved to be false by its harm, and it also ought not to be negated in light of short of the actual basis in the right of action.Meanwhile, it is also easy to obtain that smoking is the right of self-determination that is provided with the importance in disposal of life and body and formation of life style on the basis of certain private matters and self-determination, which are two constitutions of the right of self-determination. Under the rule of law in which public power is not authorized credibility, no matter to the people or to the rule of law, it is a fortunate matter to put the right into practice and return it to smoker and make state power be deeply rooted among the heart of people.However, even if the smoking behavior can be demonstrated as a right, even the right to self-determination such basic constitutional rights, does not mean that countries can not be regulated on the dangers of smoking behavior. It is generally believed that principle of injury and legal paternalism are legal principles that state regulates the conduct of smoking. But the principle of injury is the evidence of the defects of regulation on smoking. As long as the principle of injury is based on pure paternalism, it can be proved to be legitimate regulation. Legal paternalism is the coerce based on affection. In some fields, legal paternalism which is considered as legal doctrine is legitimate and feasible on the premise of regarding the situation of China, the influence of welfare state and current constitution. In fact, certain provisions about the legislation on smoking cessation in our state invisibly conform to legal paternalism.Legal paternalism is divided into soft paternalism and hard paternalism in line with criterion that whether the state will interfere with the true self-determination from the parties or not. Soft paternalism imposes restrictions on smokers in the right of self-determination from the following three factors:firstly, uninformed people; secondly, the minor; thirdly, addicts. In most cases, hard paternalism is regarded as the supplement of soft paternalism in order to safeguard or add the objective benefits.Legal paternalism has the limitation in application, or else it will be easy to degenerate into malevolence or even immorality from good faith. Therefore, when the state regulates smokers by means of legal paternalism, it is absolutely imperative to delimitate the fundamental principles in public law, such as upholding dignity of humanity, legal reservation and principle of proportionality. These limitations include that the state should set up smoking areas for smokers to exercise the right of self-determination as many as possible, promote legislative process of regulation on smoking by National People’s Congress as early as possible and reduce the legislation on smoking areas regulated by legal paternalism as fully as possible on the premise that the legal issue mentioned above is not related to principle of injury.