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Is it ever acceptable for the state to engage in coercion for the benefit of public in principle or in practice? What are the implications of “helpful” manipulation in public policy? These are just a few of the questions scholars of legal paternalism have sought to explore.

Academics have written prolifically on the topic of legal paternalism and its implications for making choices on an individual and societal level. Below, I define what legal paternalism is, distinguishing it from other forms of paternalism. I then examine some of the most important scholarship that has arisen around the concept.

The Definition of Legal Paternalism

I define the “legal paternalism” as the use of coercive laws and policies in the attempt to keep people from engaging in risky behavior that may harm them. (Examples include bans on smoking and drugs or laws mandating the use of seat belts).

This is very different from laws which are aimed at preventing harm to others (for instance, laws against assault or murder).

Additionally, legal paternalism contrasts with a few other forms of paternalism, which include:

  • Private coercive paternalism (for instance, my friend hides my alcohol stash without my prior permission)
  • Consensual paternalism (example: my friend hides my stash because I had authorized him to do so).
  • So-called “libertarian” paternalism, which purports to use means other than coercion to steer people to make better decisions for themselves.

For this post, I will focus on legal paternalism as defended by philosopher Sarah Conly in her recent book Against Autonomy. Additionally, I will examine libertarian paternalism as defended by scholars Cass Sunstein and Richard Thaler in their bestselling 2008 book Nudge.

Sarah Conly on Legal Paternalism

Conly, as far as I understand, is not actually against autonomy, per se. She does argue, however, that current arguments against legal paternalism take autonomy too far.

People should indeed be free to discover the goals and values that define their lives, she says. The problem is that people often take means which clash with and undermine those goals and values. For instance, most people seem fine with paternalistic laws such as mandatory seat belts. The thought is that riding unbelted does not contribute anything of significant value to one’s life. Meanwhile, suffering severe harm or death in a car accident would undermine what one does actually value.

Implications of Conly’s Research

But if we are willing to concede that the benefit/cost analysis counts in favor of mandating seat belts, Conly argues that we should perhaps extend the line further to other matters like smoking cigarettes, eating trans fats, or failing to save enough for retirement.

She observes that most people want to quit smoking, don’t want to eat trans fats, and want to save more for retirement. Procrastination and other cognitive flaws keep us from making the kinds of rational decisions that opponents of paternalism often assume we typically make.

And unlike other areas of choice (such as career or romance), we do not enjoy making the choices associated with quitting smoking, examining nutritional content, or selecting a retirement portfolio. Most of us would rather outsource these choices.

And so, Conly argues that legal requirements and bans would help ease us of the responsibility of doing what we would rather not do on our own. Far from finding such restriction of autonomy objectionable, we might welcome such laws and policies as unburdening us to do the things in life we’d rather do.

I will take up Conly’s argument in my next post, where I discuss my own research on legal paternalism.

Sunstein and Thaler’s Contributions

Cass Sunstein and Richard Thaler argue that perhaps we can improve the decisions people make without coercing them. That is, we can change the incentives they face while preserving their freedom to choose “worse” option or opt out.

The thought is that we can often “exploit” people’s cognitive flaws, such as procrastination, to benefit them.

  • Rather than require an employee to opt in to a retirement portfolio that she may put off indefinitely, we can automatically enroll her. She can decide whether to opt out. Often, her procrastination will leave her enrolled and presumably better off, assuming she should be saving more.
  • Instead of banning certain foods, we can rely on tactics such as putting more nutritious options at eye level or listing them first on the menu. Evidence suggests that people will have a greater tendency to “mindlessly” go for the healthier options than when less healthy fare is salient. If someone wants the cake enough, he can still find and have it.

Paternalism and the “Slippery Slope”

Skeptics of libertarian paternalism have put forth some compelling arguments against Sunstein and Thaler’s arguments, however.

Mario Rizzo and Glen Whitman

Rizzio and Whitman are concerned about the slippery slope of paternalistic policy. Maybe automatic enrollment with the option of declining is not itself an infringement of freedom or autonomy, they argue. But the people implementing such policies are more concerned with getting the decisions “right” than with preserving people’s freedom to choose as they wish.

This could lead to the following implications:

  • If too many people are still failing to save enough for retirement, (or if too many people are opting out of default enrollment) the next step could be to limit their freedom to opt out after all.
  • Suppose too many people are still consuming unhealthy food. The policymaker might conclude that the next gambit is to take away the option of that food being available.

Once policies begin prioritizing public welfare over freedom of choice, they often slip into more and more choice-limiting directions. According to Rizzo and Whitman, seat belt and anti-smoking laws have actually become more coercive over time.

Daniel Hausman and Brynn Welch

Even if libertarian paternalism is not coercive, note Hausman and Welch, it is still problematically manipulative in some cases. The “choice architect” is counting on my inattention or procrastination to steer me, often unaware, in a direction he prefers that I take. Even if there is still a freedom to opt out, I may not be aware of that freedom.

If that is the case, I am being steered according to another’s will rather acting as an autonomous person.

In my next post, I will present some of my own research on legal paternalism, providing a few of my own conclusions on the topic.

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