coons_c_weber_m_eds_paternalism_theory_and_practice

apply to the minority, that is, prudent persons who would be excellent retirement planners. It must apply to both groups simply because it is neither wise nor feasible to set up a government agency charged with determining who is prudent enough to manage her own retirement savings plan. Social Security harms those in the prudent minority because the money they must contribute to it would have gone into a privately managed account that nets them a higher return. Perhaps some of them would consent to the law despite the fact that it leaves them worse o because they are public-spirited and see it as promoting their communitarian values. Still, many do not and would not consent to it, so the law violates their autonomy. That does not make it hard paternalism, though, because none in the prudent minority are among the law’s intended beneficiaries.30 Suppose that the majority of those in the imprudent majority fail to save owing to weakness of will, and they would support mandatory contributions as a precommitment strategy to cope with their own admitted irrationality, just as Ulysses agreed to have himself tied to his ship’s mast. Then the law is soft paternalism as applied to them. It will also be soft paternalism for others in the imprudent majority who would fail to save only because they do not appreciate the power of compound interest and mistakenly believe that postponing saving for a couple of decades would leave them enough time to build up a large enough nest egg. But the imprudent majority includes some with Live-for-Today Larry type values as regards promoting their present vs. future well-being, and Social Security’s mandatory withholding applied to them infringes their autonomy. Since they are among the law’s intended beneficiaries, the law’s justification depends in part on hard paternalism.

A possible rationale for a compulsory savings policy that avoids paternalism altogether appeals to what Dworkin and Feinberg call the “psychic costs” that non-savers would impose on others.31 The idea is that in a society filled with elderly people who cannot support themselves and are indigent because of their earlier, imprudent failure to save for retirement, others who are benevolent and well o will feel compelled to support them, and that imposes on them an unfair burden. So people like Live-for-Today Larry should be forced to save, to prevent these unfair burdens on others.

30I assume that a law that restricts the liberty of everyone in a class is paternalistic insofar as its purpose is to protect some in the class (not necessarily a majority) from self-inflicted harm. It is hard paternalism insofar as it does that and infringes the autonomy right of some of those whom it is meant to benefit. Thus, I disagree with Douglas Husak, who argues that the hard/soft distinction is clearly applicable only to paternalistic acts that target a single person and not to laws that target a large class of persons. See his “Legal Paternalism.”

31See Harm to Self, 139–41 and Dworkin, “Paternalism: Some Second Thoughts.”

But there is something odd about this rationale. If I am benevolent and value Larry’s welfare, then it’s true that my knowing of his su ering creates psychological costs for me. But if I am truly benevolent then the reason I want to block his imprudent choices is that they are bad for him; it is not that watching him su er is bad for me. If the latter were my reason, I should ingest a magic pill that reduces my benevolence if such a pill is available and less costly than trying to thwart his imprudence. I would have to regard not just Larry’s imprudence but my benevolence towards him as creating a burden on me. Perhaps it is not impossible for someone to be genuinely benevolent and at the same time wish for egoistic reasons that he weren’t so benevolent. But I am pretty sure that I am not such a person and that many others who support a policy of mandatory saving for retirement aren’t either. Neither soft paternalism nor the psychic costs argument can explain their support for the policy as it applies to people like Live-for-Today Larry. Only hard paternalism can.

moral environmentalism in focus

Nagel associates moral environmentalism with political positions that he and many of his readers reject. His discussion of the practice is also inapt. It is not true that conservatives, or anyone else for that matter, have a genuine interest in maintaining, and inculcating in their children, their preferred forms of life. At least, it is not true that they have this interest unless it is also true that their preferred forms of life are valuable. It is the fact that the forms of life in question are worthwhile, not the fact that they are preferred, that is of primary significance.3 In contrast to Nagel’s description, the moral environmentalism I shall discuss is not tied to any particular political ideals. It encompasses liberal as well as conservative views, at least insofar as these views are judged to be sound.

The morality that informs sound moral environmentalist policy is objective in the sense that it consists of reasons – categorical reasons – that regulate human conduct, attitudes, and sentiments.4 The scope of these reasons is not confined narrowly to how humans ought to relate to one another. It encompasses wider demands as well.

Moral environmentalism, as I shall understand it, is also an instance of legal paternalism. The moral environmentalist proposes to use the law, including its coercive apparatus, to create or preserve an emotional and cultural climate that favors some forms of life over others. Moral environmentalists are open to criminalizing so-called “victimless” crimes if they believe that a culture that provides its members with opportunities to commit them will make it more likely that they will lead morally less good lives than if they did not have access to these options.5 Some may object that my characterization of moral environmentalism as paternalistic is misleading. Paternalistic interference is interference for the sake of those interfered with. When successful, it promotes their good, even if it restricts their freedom. But the measures favored by the moral environmentalist may not have this e ect. Consider the example of drug criminalization.

3This requires qualification. If there are many forms of life that are worthwhile, and some of these are preferred by some but not by others, then the fact that one group prefers one of the forms of life (or is invested in it) would be relevant to an explanation of why the maintenance of that form of life is in their interests. This qualification, however, does not alter the main point in the text.

4These assumptions on the objectivity and the categorical nature of morality are, of course, subject to on-going dispute. It would be an interesting result if it were to turn out that moral environmentalism is best resisted philosophically by rejecting these assumptions.

5For reasons to be discussed later, the criminal law often is a poor instrument for moral environmentalist policy. The present point only is that moral environmentalism encompasses the use of this instrument.

Suppose that the moral environmentalist targets the option to buy and sell certain dangerous drugs. Must he think that coercive interference with the trade of these drugs will benefit all who are subject to the interference? No. If he is sensible, he will allow that, in all likelihood, some people will be made worse o by the interference that he champions.

So the present objection does not rest on false claims, but it still misses its target. The moral environmentalist holds that his measures are designed to discourage people from taking up bad options. The interference he champions benefits all or many of those who are dissuaded, as a result of the interference or threat of interference, from taking them up. To borrow terminology from Feinberg, the paternalism in question is indirect, rather than direct.6 And it is no objection to indirect paternalism to point out that the class of those interfered with is not coextensive with the class of those who benefit from the interference. This point should be kept in mind. It will figure in the presumptive case for moral environmentalism that I will present in the ensuing section. For now, I need to mention a second complication concerning the relationship between moral environmentalism and legal paternalism. The moral environmentalist aims to promote morally valuable lives, but perhaps a morally valuable life is not one that is best for a person. Take a given measure M. Assume that it succeeds in enabling all those who are subject to it to lead morally better lives than they would have in the absence of M. Can we assume that these people are made better o by M? If not, then we cannot assume that M is done for their sake, as we should if we view M as a paternalistic measure. One might reply that it is always in people’s interest to lead morally valuable lives. This reply would connect moral environmentalism to legal paternalism. Feinberg refers to the resulting view as “moralistic legal paternalism”; and he protests: “[P]aternalism and moralism overlap via the dubious notion of a ‘moral harm’.”7

Feinberg was wrong to protest. The notion of a moral harm will strike one as dubious only if one is in the grip, as Feinberg was, of an overly subjectivist view of welfare. On Feinberg’s view, if one becomes morally corrupt, then this will make one worse o only if one happens to care about having a good character. Against this, I shall assume – but not argue for here – that some goods are objectively valuable, and that some of these goods will not be available to one if one leads a morally bad life. The basic

6Feinberg, Harm to Self, 9–10. As Feinberg acknowledges, the distinction here tracks the distinction between pure and impure paternalism introduced by Gerald Dworkin.

7Ibid., xx.

thought is familiar enough. A person who is too corrupt to be loyal cannot realize the good of friendship, for instance. This impoverishes his life, irrespective of whether he cares about his character or the good of friendship. On this more objectivist view of welfare, there is nothing especially problematic about a moral harm.

Be this as it may, claims about moral harm should not be overstated. The fact that people have an interest in leading morally valuable lives does not establish that they will be better o , all things considered, if they avoid all wrongdoing or if they make no bad ethical decisions. There appear to be too many examples of people who fare well, despite their ethical shortcomings, to credit that thought. In some circumstances, or so it certainly seems, immorality pays. But the moral environmentalist, as I conceive him, is not interested in this or that particular case. He holds that the members of a society, taken as a whole, will fare better if all or many of them lead morally valuable lives. More cautiously, he holds that if some measure M is successful in enabling many members of the society to lead morally better lives, then this will be beneficial to most members of the society. That is why moral environmentalism is a form of (indirect) legal paternalism and why it is consistent with the general claim that state action must be justified, if it is to be justified at all, by reference to the interests of those subject to it.

a presumptive case for moral environmentalism

Moral environmentalism is not especially hard to defend. A number of considerations support it. Two such considerations will be discussed in this section.

The first consideration appeals to the claim that states have a standing responsibility to promote the good of their members. Since the state claims wide-ranging authority over all who are subject to its directives, it is natural to hold that it should exercise this authority in ways that advance their welfare. Pitched at a high level of abstraction, this claim is not controversial. A central purpose of government is to promote the general welfare. Moral environmentalist measures can be subsumed under this general, abstractly stated justificatory purpose. As such, these measures are similar to the environmentalist measures that aim to protect the physical environment from pollution. Just as the state may legitimately prohibit the distribution of certain pollutants into the air and water, so too it may legitimately take action against certain activities that degrade the moral and cultural environment in which its members live.

Many of the issues that divide citizens concern the balancing of di erent goods and the ranking of di erent interests and these matters arise in the context of protecting both the physical and the moral environment. Finally, the ends targeted by some moral environmentalist measures are not especially controversial. There is little disagreement, for example, that the option to take heroin is an option that it is not good for people to take up.

A more promising e ort to resist the simple argument targets the second premise.9 The phrase “general welfare,” it may be said, covers up the important fact that people have di erent interests. It is not always the case that all of us benefit when the general welfare is advanced. Perhaps the simple argument is flawed because it fails to respect the fact that individuals have their own lives to lead and that their interests should not be subsumed under the collectivist sounding “general welfare.”

This brings me to the second consideration that I want to adduce in favor of moral environmentalism. In addition to the simple welfarist thesis, the value of fairness can be appealed to in order to shore up the simple argument for moral environmentalism. As I noted earlier, some moral environmentalist measures will disadvantage those who are interfered with as a result of their implementation. The measures are justified, if they are justified at all, because they benefit others. (This was the idea behind indirect, as opposed to direct, paternalism.) The worry is that talk of the general welfare covers up the conflict between the interests of the di erent parties; but the worry is misplaced if the conflict is acknowledged and addressed. The moral environmentalist should grant that his measures may not benefit all who are subject to them. When interests conflict, he should say, the proper course of action is to balance them in a fair way.

But why should it be thought that fairness supports, rather than opposes, moral environmentalism? The first point to recognize is that a society will have a moral environment whether or not it engages in moral environmentalism. (Think of a moral environment as a set of options provided by a cultural environment to engage in activities that have ethical significance.) Next consider this plausible claim: For any given moral environment, some who live in it will fare better than others relative to some alternative possible moral environment. This claim is not a necessary truth; there could be a moral environment such that all who live in it would fare better than if all lived in some alternative moral environment.

9Some may reject the second premise on the grounds that moral environmentalism will always fail to achieve its end. It is always self-defeating. Having criticized this view elsewhere, I pass over it here. See Wall, Liberalism, Perfectionism and Restraint, 189–197.

But, in general, living in a given moral environment will have di erential e ects on the welfare of di erent people relative to possible alternatives. For example, a society that administers state-run lotteries will disadvantage those who are not good at making judgments of probability, or have trouble resisting the impulse to gamble. Such people will fare better in an environment that does not give them the option to lose their money to the state. Those who see through the state-run schemes, or those who merely enjoy the thrill of buying a lottery ticket now and then, but do not waste substantial amounts of money on them, will not be adversely a ected by, and may benefit from, the option provided by the state-run lotteries. These points do not show that the conflicting interests of di erent people living in the same moral environment should be resolved one way or the other. But a society that undertakes no moral environmentalism will have a moral environment and that moral environment may unfairly disadvantage some of its members relative to the possible alternatives.

The second point to note is that people di er with respect to decisionmaking competence. Some are disposed to make good decisions about their lives, others poor decisions. Naturally, and speaking generally, those who are bad decision-makers will tend to be less well o overall than those who are good decision-makers. This reality has a significant upshot for our discussion. Moral environments that o er their inhabitants bad options, when compared to available alternatives, will tend to disadvantage those who are less well o . The failure to engage in moral environmentalism thus comes at the expense of those who fare least well.10 Now suppose that we think that, when the interests of di erent persons conflict, fairness sometimes requires that, holding other things constant, we should favor those who are less well o over those who are better o . Call this the minimal priority claim. If we accept this claim, as I believe we should, then we have a fairness-based case for moral environmentalism. When deciding whether to engage in moral environmentalism, a society will need to decide whether the moral environment that results from its action will be fair to its members compared to the moral environment that will result if it does not undertake the action. In a wide range of cases, the minimal claim tilts the case in favor of moral environmentalism.

Let me emphasize just how weak the minimal priority claim is. It does not specify how much weight should be assigned to the interests of those who are less well o . It also does not hold that priority should always be

10In this paragraph I help myself to points that were, to my knowledge, first pressed by Arneson in his discussion of Mill and paternalism. See Arneson, “Paternalism, Utility, and Fairness.”

given to the less well o . Perhaps, once everyone is leading a su ciently good life, the priority assigned to the worse o reduces to zero. And, of course, since it is a priority claim it can allow that if the gains to the better o are su ciently large, they can override the losses imposed on the less well o . Finally, the minimal priority claim includes a rider that other things must be equal.

The rider is appropriate, given that we are seeking now to present merely a presumptive case for moral environmentalism. But perhaps it will be objected that considerations of personal responsibility make the minimal priority claim inapplicable to the issue of moral environmentalism. On this view, those who fare less well because they make poor decisions have only themselves to blame. Priority to the worse o is compelling when the worse o are worse o through no fault of their own, but when their fate is a result of their own choices, then it is not unfair to let them bear the full burden of those decisions. Whether or not one accepts this view, it should be clear that even if people are fully responsible for the consequences of their bad decisions, they are not singularly responsible for the environment in which they make those decisions.11 That responsibility lies with the society as a whole. And that is why the issues raised by moral environmentalism engage concerns about fairness.

The fairness considerations supplement the simple welfarist argument in support of moral environmentalism. That argument, as we saw, appeals to the general welfare. Moral environmentalism aims to bring about a moral environment that will best enable the members of a society, in general, to lead morally valuable lives. Since di erent moral environments will a ect the interests of members di erently, the argument is vulnerable to the objection that it sacrifices the interests of some for the sake of others. But that objection is not a serious one, once it is recognized that failing to engage in moral environmentalism countenances a moral environment that benefits some members at the expense of others. With the conflicting interests in view, it is natural to ask how they should be adjudicated. Fairness considerations, and in particular the minimal priority claim, speak in favor of adopting a range of moral environmentalist measures.

11Suppose a person takes up heroin and ruins his life. Is his fate his responsibility? Yes. Others, however, do bear some responsibility for making this option available to him. It might be inappropriate for this person to complain that he was treated unfairly, but it would not be inappropriate for those who care about him to complain that the moral environment in which he lived made it easier than it need be for people like him to ruin their lives.