Why Libertarians Should Take Paternalism Seriously
Recent defenders of state paternalism argue that traditional objections fail to identify anything distinctively problematic about it that don’t also pertain to other state activities these objectors would find acceptable. Bill Glod outlines these observations.
Liberals and especially libertarians tend to have an aversion to paternalism, which here I define as efforts, whether coercive or manipulative, to induce real or allegedly beneficial actions and habits in people or, more commonly, to protect their real or alleged interests from setbacks regardless of whether they agree with the interventions. Historical and contemporary examples of paternalistic laws and policies include, but aren’t limited to: forced religious conversion, banning women from certain types of employment, censorship, alcohol prohibition, prohibitions on sex work, mandatory seatbelt and helmet laws, compulsory retirement savings, withholding of medical information, forced medical treatment, drug and smoking restrictions, gambling prohibitions, mandatory safety features, vaccination requirements, junk food taxes or bans, nudges to encourage healthier eating, restrictions on dangerous activities, and suicide prohibitions.
We should distinguish paternalistic laws from laws preventing actions that are harmful to others without their consent. While speed limit laws could have the aim of protecting drivers from their own unsafe driving, their typical rationale is to protect other motorists from the unwanted risks and harms of speeding. By contrast, paternalism aims to prevent a person’s largely self-regarding actions that may set back their own interests significantly.
Justifications of paternalism are sometimes limited to so-called “soft paternalism,” which holds that interventions are only permissible if the person is deemed incompetent to make decisions with regard to some matter, or there is insufficient evidence of competence that they are making a free and voluntary choice to engage in the activity the soft paternalist aims to prevent. For reasons of brevity, I will bracket discussion of soft paternalism and focus instead on the more controversial “hard paternalism,” which holds that people (all else being equal) ought to be prevented from engaging in certain activities even if they are making free and voluntary choices to do so. The thought is that such activities set back that person’s interests, and the setting back of their interests provides a valid, and often decisive, reason for intervention regardless of whether the person agrees to the intervention.
I focus here mainly on coercive legal paternalism, that is, paternalism understood as state coercion through laws and policies. But the discussion can also apply to “nudges” by which governments employ “choice architecture,” aiming to manipulate individuals for their own real or alleged good. I leave aside looser senses of “paternalism” meant as providing benefits to individuals, as this inclusive concept risks conflating the more problematic coercive and manipulative interventions with other interventions that the beneficiary may indeed seek. I also leave aside private instances of coercive paternalism or nudging, not because they aren’t also potentially worrisome, but because they raise complications about intimate personal relationships which can have many features not shared by the state-citizen relationship. Private paternalism is more conducive to evaluation on a case-by-case basis, whereas state paternalism lends itself to principled defenses or critiques.
Liberals and libertarians are especially averse to paternalism, whereas many traditionalist conservatives and progressives are more open to various forms of it. Some conservatives are concerned about the effects of certain matters, such as gambling or violent video games, on the moral rectitude of those who would consume or be exposed to them. They may call for restrictions or outright prohibitions in order to protect people’s virtue or character. Some progressives are concerned about people’s material well-being and advocate for restrictions, prohibitions, or nudges that steer people away from what they deem poor health or financial decisions. Libertarians disagree, claiming that individuals should be free from state interference to make even self-harmful decisions.
Jason Hanna’s 2018 book In Our Best Interest discusses how several common objections to paternalism, often raised by libertarians, are unsatisfying. Below I unpack some of these objections and discuss how, at least at first glance, paternalists have responses worth considering by libertarians. I will discuss in a subsequent essay how libertarians and liberals can in turn reply to these responses in ways that more clearly capture the force of the objections. Readers can find more detailed discussion in my book Why It’s OK To Make Bad Choices.
Paternalism Won’t Work
A common objection to paternalism, going back at least to Mill’s On Liberty, is that people know their own good better than anyone else, including paternalists. We are best placed to know our own goals, tastes, interests, and values because we have the best access to our own minds and motives. Moreover, it’s not the paternalist’s business to tell us what to value or what ends to pursue, especially given widely recognized pluralism about ways to lead a good life and what to prioritize within that life. Some people prefer adventure and spontaneity over safety and security. Others prefer leisure or profligacy over wealth accumulation. Yet others enjoy indulging their gluttonous preferences over pursuit of a healthy diet and exercise. Interfering with these people’s decisions is self-defeating because interfering with the satisfaction of preferences, which the paternalist, but not the target, deems worth pursuing, actually sets back the target’s interests.
Defenders of paternalism, especially contemporary ones, have a response. Unlike olden times, where belief in a universal hierarchy of goods was more common, today’s paternalists typically embrace pluralism coupled with preference-satisfaction accounts of the human good. (Even modern defenders of “objective list” accounts of the good tend to emphasize the pluralism of this list.) Most modern paternalists aren’t advocating for interference with people’s values and ends; in fact, defenders like Sarah Conly frame paternalism as a way to better help people get to where they want to get, whatever their ends might be. And people don’t always know their own good better, in the sense of not always knowing the best means to their own ends. For instance, a heavy smoker who also really wants to live to see his grandchildren should probably quit smoking. Forcing him to quit may better serve this more highly valued end than hoping he will quit on his own. Even if people did always know the best means to their ends, weak will may sometimes hinder the ease with which they can attain them. It takes effort to choose the proper means in the face of temptation, and paternalists only claim to defend measures which alleviate distractions, including inertia, that might get in the way of such efforts. Far from undermining a person’s preference satisfaction, paternalist measures can enhance their ability to achieve it. So, judicious paternalism works.
Paternalism Is Disrespectful
Another common objection is that paternalism risks treating adults as children when they are capable of being responsible and accountable for their own actions. By contrast, we sometimes restrict children’s freedom of action because their brains haven’t developed enough for them to be capable of making informed decisions, for better or worse. Adults are different because they’re capable of mature decisions even if they don’t always make mature ones. Adult shortcomings are usually a matter of unwillingness, not inability. Paternalists thereby fail to recognize adult agency when they prevent someone from acting in ways that person is also capable of choosing not to act. Just as adults tend to hold each other morally responsible as a matter of course, we should also hold each other responsible for the prudent governance of our own lives. We can advise, shame, or remonstrate with those failing to live up to their own standards, but we should otherwise leave each other alone rather than be coercive busybodies, especially if that is backed with some level of state authority. Moreover, forcing an adult not to act in ways that largely harm only themselves exhibits a lack of regard for that person as free and equal. The paternalist claims some greater authority to intervene which belies the free and equal agency liberals and libertarians espouse for individuals.
Defenders may respond that by protecting a person’s “best self” against their baser impulses, paternalism can in fact be mindful of those rational features by virtue of which we respect persons in the first place. Interventions should be sparing and only aimed at really bad decisions, not minor ones. By preventing these bad decisions, interventions help these persons avoid the kinds of self-destruction which undermines their ability to otherwise live as they see fit. Proper interventions are rare and only meant to bring a person back into alignment with an effective deployment of their agency. In doing so, paternalism can respect the features of a person which allow them to realize their own commitments, without also needing to respect the bad choices which can sabotage these commitments.
Paternalism Imposes Values and Reasons
Another objection holds that paternalism interferes with individuals’ ability to lead their own lives, mistakes and all. We would object to someone preventing us from choosing our own values (what careers to pursue, what fashion to wear, what music or food to enjoy) even if that outsider knew what would make us happier. The same may go for all our other choices (whether to wear a motorcycle helmet, whether to eat junk food, etc.) Being a fallible human agent is not about passively enjoying the best possible experiences; rather, it is an active process of achieving successes and enduring failures. Our misjudgments, and what we can learn from them, are as much a part of our individual development as happy end results. The journey matters as much as the destination, but by interfering with some of our choices, paternalists try to lead part of our lives.
Defenders may reply that interventions can track a person’s own values and reasons; sometimes it’s weak will, heated emotions, or stubbornness that gets in the way of a person best attaining her own self-identified goals and values. Why would a person want the freedom to act in ways she herself acknowledges would be harmful to herself? If she has no good reason to ride a motorcycle without a helmet, if her obstinate refusal to wear one is not due to some value or good reason she has, then what basis does she have for resisting a paternalistic mandate to wear a helmet, given what’s at stake? A modest paternalism can be neutral between values: whatever it is a person values, if her decision risks undermining her ability to pursue what she values, then it may be permissible to interfere with her decision in order to bring her actions back into alignment with her values. How is that an imposition rather than a supportive means of tracking what she values?
Paternalism Violates Individual Rights
A more explicitly libertarian objection contends that paternalism violates full self-ownership rights. When paternalists decide on your behalf, without your prior consent, they are to that extent part-owner of you. If we accept the legitimacy of full self-ownership, however, each person should have the freedom to do whatever they want to themselves, provided it doesn’t violate others’ rights. Self-ownership rights needn’t be justified in terms of helping to promote the self-owner’s interests, although this can be a common element of self-ownership. We can instead justify such rights in terms of who should have the jurisdiction for decision-making. This jurisdiction allows each person discretion over what they will do with their property, including themselves, and one upshot of such discretion is that people are free to make even very self-harmful decisions, just as ownership rights over physical objects include rights to destroy them.
One response to this objection is that full self-ownership rights are quite controversial, and one needs an argument for full self-ownership that is more plausible than other accounts, such as “interest” theories of rights, which argue that rights should be respected insofar as they protect and promote each individual’s well-being. Why can’t paternalists maintain that since rights can be infringed to prevent harm to others, they can also be infringed to prevent harm to oneself in momentous cases? Surely our rights include strong presumptive claims to authority and bodily autonomy, but even these can still be overridden in rare cases, such as severe self-harm, and so the rights needn’t permit self-destruction. We may have full ownership rights over a trash can, but this is only because a trash can is an inanimate object of limited value. Destroying it matters little. Arguably, we don’t even have full ownership rights over our pets. We can’t inflict gratuitous pain on them in ways that we can destroy trash cans because protecting animals from pointless suffering matters more than protecting trash cans. So, if we don’t have full ownership rights over sentient beings, like pets, why assume we have full ownership rights over beings like ourselves?
Paternalism Can Be Abused
A final common objection is that paternalistic laws and policies are subject to abuse. Given public choice concerns, such as political ambition and bureaucratic interest in growing their budgets, manufactured fears about rampant self-harm create opportunities for self-serving actors to exaggerate public concern and further their own agendas. History provides examples, such as moral panics around alcohol leading to Prohibition. These environments allow for a “Baptists and Bootleggers” situation, where those leading the moral panics (Baptists) join a social cause with criminals who stand to benefit from prohibitions (Bootleggers). Rather than risk falling down that slippery slope, we should do without any such laws and policies.
A reply to this abuse concern is that any legislation is, in theory, subject to abuse in the hands of imperfect humans, including the sorts of non-paternalistic laws and policies needed to support even libertarian polities. Intellectual property laws meant to encourage research and development, or help artists recoup the benefits of their labor, can be extended far beyond these rationales to benefit, at our continued expense, those who did nothing to fund or create valuable inventions or music. Traffic laws can be abused through “policing for profit,” as technical violations like going one mile per hour above the speed limit lead to citations that often disproportionately burden minority populations. The possibility, even the actuality, of such abuses does not imply that we should have no intellectual property or traffic laws at all, the absence of which could lead to disasters far worse than the abuses themselves. If it proves too much to say we should oppose all legislation on the grounds of abuse being possible, the same goes for paternalistic laws, unless a powerful case can be made for why they are so subject to abuse that we’re better off not having any of them.
This essay has been a brief survey of common objections to paternalism and initial replies by defenders of paternalism suggesting how such objections, at least as stated, are not decisive. The subsequent essay will suggest how liberals and libertarians can respond in more depth to strengthen or retool the objections and show how the case for state paternalism is weaker than its proponents may think.