coons_c_weber_m_eds_paternalism_theory_and_practice

we choose the less healthy items in the cafeteria despite being nudged towards the healthy ones or we indeed choose the more healthy ones. If we resist and choose the less-healthy items then the nudge has been unsuccessful. As such, this would not constitute an instance of morally acceptable paternalism; it is only attempted paternalism. If instead we do in fact choose the more healthy options, it is unclear whether this counts as paternalism either. For now it seems more like the cafeteria patron has been simply reminded by the sign to think (explicitly) about eating more healthily. What leads him to the healthy choice is that he has been reminded of the importance of eating healthily, and not because of the psychological mechanisms nudges target. In other words, transparent choice architecture appears to be more akin to providing information, giving advice, or engaging in rational persuasion. And as Hausman and Welch pointed out, this is not paternalism at all.

All that being said, it is hard to avoid thinking that many of the nudges Thaler and Sunstein recommend are rather benign. Do we really need to get all up in arms about setting defaults that enroll people in retirement programs? Perhaps not. But there are things to be worried about here. First, there remains the problem of non-standard actors: Someone with a very short life expectancy could well be harmed by being enrolled in a standard retirement plan if it involves contributing a portion of his income, as he will never enjoy the benefits in his retirement. Similarly for someone set to inherit a large sum upon retirement (at age sixty-five). And again, although every choice architecture will have its “victims,” when a nudge is intended the unfortunate have special grounds for complaint: The state tried to push them towards the disastrous option, knowing that for some this push will be successful and disastrous. And though one might reply that “push” is too strong a word – because individual “nudges” (by stipulation) are easy to resist – this reply is little comfort given that Thaler and Sunstein never address the concern that nudges might be “stacked” within and across choice architectures, e.g., the food could be ordered a particular way, presented a particular way, listed on menus in most attractive fonts, etc. This possibility clearly illustrates that there can be more or less “nudging” in an environment, and again raises the question whether trying to reduce or avoid these influences is the best option, even if some influence is inevitable.

Thaler and Sunstein would presumably object to “stacking” nudges because collectively they might constitute a “shove.” Thus proper use of the power to nudge will require choice architects, and those who monitor them, to be self-conscious and careful about the manner and degree to

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which they influence our preferences. Put plainly and unflatteringly, they need to adopt their role as a manipulator of preference and be vigilant about not misusing it. But this leads us to our final worry about the libertarian paternalist program. Specifically, there’s something unsettling, maybe even something somewhat incoherent, about viewing oneself as one who manipulates preference because it is less objectionable than coercion. Indeed, though many of their proposed nudges seem innocuous, libertarian paternalism, when considered at an abstract distance, can seem even more sinister than its coercive or option-removing cousin. To get a sense of our worry, first notice that debates about paternalism can be fundamentally framed in terms of conflicts between an individual’s choices and her well-being. We will not always choose what’s best for ourselves, or even what is best by our own lights. When we won’t the paternalist finds it sometimes justified to act to prevent these imprudent or subjectively “suboptimal” choices. Traditional paternalism typically pushes us away from these choices by dramatically changing the cost of making such decisions. State paternalism often imposes fines or penal sanctions for making such choices. Less controversially, the state can attach incentives to choices deemed best for its citizens, thereby making putative suboptimal choices “costly” in terms of benefits foregone. These measures rarely involve actual physical force; instead they make choosing in a way deemed “imprudent” costly – costly relative to the target’s own evaluative perspective. The traditional paternalist thus takes e orts to artificially ensure it is irrational (by the subject’s own lights) to make choices deemed imprudent, but he does not alter the target’s fundamental evaluations. Rather he changes the external environment in a way that makes those fundamental evaluations now favor the “prudent” options. This is clearly in some sense disrespectful to the person and his perspective about what is to be done, because he might have otherwise wanted to choose something else. In rigging the external cost structure “for his sake” the paternalist e ectively disregards his ability to make prudent decisions, and disregards his own, would-be view about what choice to make.

Libertarian paternalism might initially be thought of as operating in exactly the same way, the only di erence being that the external costs imposed are somewhat smaller. If that is so, then we have a di erence in degree and not kind: The traditional anti-paternalist will view the program as unjust but presumably better than more traditional forms of paternalism. However, that is probably the wrong way to view many nudges. The biases of our automatic systems do not reflect the weightings of options relative to our evaluative perspective – we do not judge that we have more

reason to choose items that we are o ered first, or that we have more reason to choose a default. We do, however, judge ourselves as having reason to seek financial incentives and avoid fines. In this way, the traditional paternalist at least treats us as rational by appealing to what we value, and what we ourselves take ourselves as having reason to do (even if only like the gunman who says “your money or your life”).

The libertarian paternalist, as manifested in at least some of Thaler and Sunstein’s proposed nudges, takes measures to make us act on features we do not take to be reason-giving. E ectively, these nudges change our (relative) evaluation of options without appealing to our current evaluations or view about what provides reasons. Seen this way, libertarian paternalism involves a much deeper disrespect of its target. The traditional paternalist may be accused of ignoring the target’s own view of what is to be done, or worse, turning that own view against her by changing the external environment so that the “favored option” now becomes rational relative to her own point of view. The libertarian paternalist, on the other hand, does not ignore the target’s point of view, or use it against her; rather he sees her perspective itself as something to be fashioned or altered. But if we think of the agent as partly constituted by her evaluative perspective, libertarian paternalism is apparently a threat to the agent herself, and not just the unimpeded expression of her evaluative outlook. Our targets are no longer beings whose choices, but not evaluations, are to be guided. Rather, we’re engaged in a project that more directly shapes the target’s preferences and evaluations themselves. If traditional and libertarian paternalism really are distinct in this way, libertarian paternalism – though noncoercive – may seem worse and less justifiable than more traditional forms. It may seem worse because the target’s view of what is to be done is no longer merely ignored or thwarted, but is rather viewed as something one may attempt to extinguish, supplant, or “manage.” There may be a deep tension in thinking our viewpoints are subject to management, but our actions should not be. One might alternatively put our preliminary worry this way: If traditional paternalism is somehow guilty of “violating” our rights to autonomy or self-sovereignty, libertarian paternalism treats us as beings that could not even be owed such rights.32

32Many of the points being made here are consistent with Hausman and Welch’s criticism, and could plausibly be seen as explicating and expanding upon the worry they only begin to develop in their review article. They suggest that choice architects shaping people’s evaluation and choice is incompatible with autonomy. This seems right. However, no explanation of the incompatibility is provided. The comments here, though themselves not fully worked out or conclusive, might plausibly be seen as a beginning of providing just such an explanation.

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Ultimately, it remains unclear what precisely, if anything, is wrong with paternalism. And answering this question has become even more di cult as we’ve become more aware of the fact that it needn’t be accompanied with the dubious features typically associated with it: coercion, removal of choice, and the imposition of values on its targets. Though this suggests that paternalism is benign in the absence of these features, as we’ve just seen, it may be possible to argue that some paternalism without these features may be worse. Of course, not much rides on whether paternalism always has a bad-making feature or not. Our trouble in identifying such a feature simply reveals the complexity of the issue. There are no easy answers. It appears unreasonable to reject paternalistic policies because they are paternalistic; but equally unreasonable to welcome paternalism when it lacks the evils typically associated with it. Further investigation is needed, but its promise needn’t merely be a clearer view about if, when, and how to paternalize. It promises to further illuminate more general moral issues about the relationship between persons, the state, and its citizens, and the substantive content of central rights and values. We view all the works in this volume as valuable contributions to this investigation.

question of whether some killing of a human being is murder. I am going to begin by canvassing a wide variety of definitions of paternalism which may have been developed in quite di erent contexts for quite di erent purposes. It is helpful both to see how wide the variety is and to see the various dimensions along which the definitions vary.

The first crucial dimension is what the term is predicated of. People can be paternalistic. Reasons can be reasons of paternalism. Motivations can be paternalistic. Institutions can be paternalistic. Acts can be paternalistic. Policies can be paternalistic. It may be that acts are primary in some definitions with the other elements being defined in terms of acts, or the order might be the reverse. But I shall be concerned primarily with the notion of a paternalistic act or the notion of a paternalistic policy.

dimensions

Outcomes vs. motives

A paternalistic act may be defined in terms of the outcomes it produces. If a state enacts legislation requiring boaters to wear life jackets, and if wearing life jackets is beneficial to the interests of boaters, then this is an act of paternalism. The alternative view is that whether an act is paternalistic or not cannot be determined without reference to the reasons for which the state acts. Two acts may have the same outcome, an improvement of B, yet only one counts as paternalistic.

Actual vs. hypothetical motives

An act may be defined as paternalistic in terms of the reason for which A acts. If she has more than one reason there is an issue of how to specify the relation between her various reasons and the characterization of the act. If we are considering a piece of legislation which is passed by many voters, with di ering reasons, the issue is even more complex. But in both cases it is the actual reasons which must be considered.

The alternative view is that the reasons which count in determining whether an act is paternalistic are the hypothetical reasons which could motivate or justify the act. So a doctor’s lying to a patient about his terminal condition is paternalistic because considerations of the patient’s welfare would have led to his lying (even if his current act was motivated by a desire to avoid a long discussion after a tiring day).

Motives vs. reasons

As opposed to what explains the act, the motives for which the agent acts, the important question may be whether there are reasons which are su cient to justify the policy which are of the appropriate kind. The agent may have acted, say, to promote the interests of third-parties; but if there are reasons which refer to B’s welfare, and such reasons are su cient to justify the act, then the act is paternalistic.

normative constraints

A’s act must violate B’s autonomy vs. A’s act need not be a violation of B’s autonomy

Consider the case where a husband hides his sleeping pills because he fears that his wife may find them and use them to commit suicide. A definition of paternalism might classify the husband’s act as nonpaternalistic on the grounds that what A does is not a violation of a sphere of autonomy of his wife. She has no right that he keep his sleeping pills in clear view. Or, one might consider the act as paternalistic even while conceding this point. In some sense he substitutes his judgment for hers in the belief that his judgment is better than hers. Obviously, interference with autonomy is not a su cient condition for an act’s being paternalistic. I interfere with your autonomy when I steal your bicycle but that is not a case of paternalism. The issue is whether it is a necessary condition. Can I act paternalistically towards B even if I do not in any way violate his autonomy? I speak of “autonomy” rather than, say, “liberty” because paradigm cases of acting paternalistically, such as a doctor lying to his patient, might not be considered infringements of liberty.

Acts vs. omissions

Is paternalism defined only over the range of actions, or can it include failures to act as well? If I push you out of the way of a car to avoid injury, this could be thought to be paternalistic.

Suppose I do not push you out of the way (when I could), envisaging minor bruises and scrapes, so that you will miss a business meeting where I believe you will make a seriously mistaken deal. Is that paternalistic?

Definition A

X acts paternalistically towards Y by doing (or omitting) Z if and only if:

(1) Z (or its omission) interferes with the liberty or autonomy of Y (2) X does so without the consent of Y

(3) X does so just because doing Z will improve the welfare of Y (where this includes preventing his welfare from diminishing), or in some way promote the interests, values, or good of Y.2

Definition B

The second definition is from an economics paper by Sunstein and Thaler.3 If an employer is “attempting to steer employees’ choices in directions that will promote employees’ welfare,” he is acting paternalistically.4 Thus, if an employer automatically enrolls an employee in the company’s 401k plan (with the option to withdraw at any time) this counts for them as paternalistic. Elsewhere, Sunstein claims that the anti-paternalist position is “incoherent, simply because there is no way to avoid e ects on behavior and choices.”5 This definition does not require any interference with liberty, or coercion, or infringement upon autonomy. If an action has e ects on choices, and one intends those e ects because they will enhance the welfare of the person being a ected, then on their definition the action is paternalistic.

2 See Dworkin, “Paternalism.” Condition one is the trickiest to capture. Clear cases include threatening, bodily compulsion, lying, withholding information that the person has a right to have, and imposing requirements or conditions. But what about the following case? A father, skeptical about the financial acumen of a child, instead of bequeathing the money directly, gives it to another child with instructions to use it in the best interests of the first child. The first child has no legal claim on the inheritance. There does not seem to be interference with the child’s liberty; nor on most conceptions the child’s autonomy.

Or consider the case of a wife who hides her sleeping pills so that her potentially suicidal husband cannot use them. Her act may satisfy the second and third conditions but what about the first? Does her action limit the liberty or autonomy of her husband?

The second condition is supposed to be read as distinct from acting against the consent of an agent. The agent may neither consent nor not consent. He may, for example, be unaware of what is being done to him. There is also the distinct issue of whether one acts not knowing about the consent of the person in question. Suppose the person in fact consents but this is not known to the paternalizer.

3 Thaler and Sunstein, “Libertarian Paternalism.”

5 Sunstein, The Laws of Fear, 195.