Why Opposition to State Paternalism Matters

Defenses of paternalism and the agencies that enforce its policies are “bipartisan.” Many if not most social conservatives and progressives tend to share sympathy for state paternalism even if they disagree about where to apply it. By contrast, libertarians and classical liberals are skeptical of legal paternalism, often opposing it entirely. Opposition to paternalism captures a principled respect for individual freedom because it’s not just a matter of respecting freedom only when it’s beneficial. Rather, respecting such freedom is more fundamentally about respecting conscience and self-​direction as defining features of each agent’s inviolable dignity, whatever else he may value.

Defenses of freedom are often couched solely in terms of protecting each person’s basic interests from harm—freedom is secondary, valuable only insofar as it promotes that person’s well-​being. These approaches risk viewing persons merely as valuable objects to be cared for, like young children or fine works of art, rather than self-​directing agents to be respected as sources of their own judgments, values, and actions. Of course, respect needn’t preclude concern for a person’s well-​being. In order for there to be an agent to respect, he must be secure enough from many harms.

What’s interesting about paternalism is that interferences with freedom are justified in terms of protecting that person from avoidable self-harm, rather than uninvited harm from others. The rub is that in many cases what an outside party considers harmful enough—what calls for interference—is still considered net beneficial from the standpoint of the alleged self-​harmer. Or, at least, the person is willing to take risks the paternalist deems unacceptable. For instance, consider a rock climber who wants to attempt a difficult cliff face with no safety ropes. His pride and sense of self are bound up with accomplishing difficult and dangerous feats of this kind. However, the paternalist may object and argue that intervening is necessary to protect the climber’s life from what appears to be a needless risk. But interferences like these thwart that person from acting riskily and hereby substitute the paternalist’s judgment for that of the person. This substitution clashes with our moral equality and freedom to act by our own judgments, rather than have them intercepted by a party claiming an undelegated authority to infringe on our freedom to act.

If the principle supporting paternalism is that it’s permissible to substitute our judgment for others when that’s for their own good, where do we stop? Why not interfere when someone is about to make a bad career move, or follow a religion that will likely make her miserable, or enter an emotionally abusive relationship? Defenders of the principle might reply that careers, religion, and relationships are major aspects of one’s identity and thus too valuable to be subject to paternalism.

Interferences with these aspects of life are too intrusive because we also value the freedom to engage in them, for better or worse. (This is likely true for most people, though consider those who might prefer the freedom to make lesser decisions but defer to others on bigger ones.) Either way, why couldn’t a person respond that the same could be said about their life as a whole—why couldn’t the totality of their life pursuits, and the freedom to make every choice therein, be similarly valuable in ways that call off interference?

Perhaps some of our choices (e.g., maintaining a healthy diet, refraining from addictive substances, saving for retirement) aren’t as important a matter of freedom, considering the risks of harm they bring. Perhaps many (most?) of us wouldn’t mind being relieved of responsibility for these “second-​class” choices. If so, fine. I use a financial advisor because I lack the confidence and expertise to make complex decisions about my retirement portfolio. But the advisor wasn’t forced on me, and I could end this fiduciary relationship at any time. The same should go for everyone about all domains of choice. Those of us who want relief from making all our own choices may consent to advice in these situations, but that’s a far cry from being forced to act in ways another party has deemed best.

Just as markets are systems of profit and loss, life is a process of success and failure. Attempts to guarantee profits without loss involve considerable distorting interventions that would thwart the preference satisfaction of market actors. Likewise, efforts to shield people from failure also thwart individual preference satisfaction while reducing opportunities for them to learn from their mistakes and grow more responsible. This is a broader point than the argument that achievement is more valuable when it’s not guaranteed. Some people choose to lead a prudent and cautious life, but others prefer to push the envelope and see what they’re capable of experiencing even when dominant social norms may frown on such behavior.

One risk of paternalism foiling different experiments in living is that it deprives the would-​be experimenters, and us, of unforeseeable discoveries and desirable experiences. A ban on psychedelics and narcotics might prevent creation of all kinds of innovative art, literature, and music—or at least the trippy joy of consuming these in an altered state of mind. Financial restrictions may prevent entrepreneurs from risking their personal wealth for the chance of making profits. Requiring motorcycle helmets might deprive some riders of the thrill and danger of the open road—but then why do tightrope walkers get to perform dangerous stunts without a net? Bans on unhealthy foods may prevent gourmands from inventing new gustatory delights. Prohibiting adult gender modification may prevent some people from aligning their bodies with their self-​identifications.

Government measures like Social Security and mandatory health insurance—which often have paternalistic rationales—risk crowding out a proliferation of less expensive, and more reliable, forms of voluntary safety nets and risk-​pooling such as basic income arrangements and mutual-​aid societies. More generally, defenders of legal paternalism seek government solutions almost by reflex, overlooking the role civil society and markets may play for those who seek greater protection from harm without insisting that others unwillingly be coerced into such a scheme. Greater freedom tends to allow more opportunities for prosocial entrepreneurship and opportunities to replicate and scale successful experiments.

Granted, not everything will turn out rosy when people are free to experiment. Nothing but death is guaranteed in this life. There will be massive failures, but that’s where learning opportunities arise for others. We’ve learned much from those who blamelessly failed, and suffered, at countless previous trials: what plants and fungi aren’t safe to eat, what flood plains not to build on, how mercury isn’t a good disease treatment, etc. We also have the many testimonies of people who messed up their lives through avoidable poor decisions: substance abuse, excessive spending and lack of saving, bad relationship decisions, bad investments, bad business practices, general recklessness, etc.

It might seem counterintuitive, but allowing people the freedom to make bad examples of themselves could prevent more overall harm than selective interventions that reduce opportunities for onlookers to witness the grave consequences of irresponsible decisions. Let’s say gambling was prohibited. First off, that wouldn’t stop gambling; it would only drive its most eager and desperate practitioners underground. That would reduce the ability for those who financially ruined themselves to be public examples of what not to do. With the added threat of punishment from illegal activity, gamblers would not be likely to come forward either for help or for others’ edification. Second, even if relatively effective prohibitions made it more difficult for some to engage in gambling, that might lead them to channel their urges into even more harmful activities like opioid abuse. Urges, including self-​destructive ones, don’t go away just because laws or policies make it harder to satisfy them. If anything, the fix just becomes costlier to get and more harm is done.

Public shaming and boycotting of businesses that are legal but of questionable ethicality may make them more open to discouraging irresponsible gambling, accommodating gamblers seeking self-​restriction, etc. Do you think a mafia gang running an underground poker ring would face incentives to self-​regulate from public pressure?

Regardless, the sort of people prone to learn from others’ mistakes are those most likely to lead the kinds of responsible lives that comprise a free and flourishing society. Those who aren’t inclined to learn from others’ mistakes are likely to make plenty more of their own, repeatedly, and even partial enforcement of paternalistic laws won’t be enough to save them from themselves … unless the state really clamps down on our private lives.

Currently, people are still able to engage in a lot of prohibited self-​harmful behavior because they are out of the authorities’ lawful sight. If some self-​regarding behavior is outlawed, but people have strong enough preferences to engage in that behavior anyway, they will attempt to do it in secret. However, if a given behavior is considered enough of a scourge, this may allow enforcers a greater pretext to invade what would otherwise be private spaces. The Fourth Amendment presumption against “unreasonable” searches is fairly weak. It’s not too difficult to imagine a world where some courts find it “reasonable” to preemptively monitor potential behavior deemed unacceptable, given “probable cause” that many people will make self-​harmful choices, and especially given advances in surveillance technology that have increased the state’s ability to track how we live.

Besides gambling or substance use, what’s to keep Big Brother from running databases that monitor information about our grocery purchases and restaurant orders? Or our (lack of) exercise activity? Some might scoff that these are outlandish and fearmongering concerns—if so, I’ll leave it to them whether they trust political leaders to refrain from engaging in surveillance when those leaders stand to benefit. We already see government legislation that aims to control the size of soft drinks. In the UK, regulations control how High Fat High Salt and Sugar (HFSS) items can be displayed in stores. There are also “volume promotion bans” that prohibit businesses from offering certain “buy one get one free” deals. If paternalism makes more activities illegal, that only ups the ante for excuses to use emerging technology to root out illegal activity. NSA spying and DOGE information breaches are recent news, not the farfetched nightmares of paranoid conspiracy theorists.

While on the topic of federal agencies with little evident concern for individual freedom, consider the Food and Drug Administration (FDA), which presumably exists to protect people from unwittingly consuming unsafe food and drugs. Sadly, the FDA regulations have also prevented “the right to try.” That is, the regulations prevent many sick people from wittingly using experimental drugs while these undergo the lengthy and bureaucratic approval phase (which often doesn’t end in approval). The professed aim is to prevent people from the risk of severe harm, but most who seek experimental medicines are facing terminal illness or chronic pain. They aren’t looking to experiment with an unknown drug just for giggles. These people have little to lose and potentially much to gain by taking a risk with some unapproved medications, so it’s a sad irony that protecting them for their own good is a rationale for preventing them from acting on their own risk assessments. The presumption is that people lack pharmaceutical freedom unless given permission by self-​proclaimed authorities.

Consider the Drug Enforcement Agency and other agencies who execute drug laws. Drug prohibitions make it profitable for gangs to traffic narcotics and opioids, which calls for aggressive action to quell not only their violent activities but nonviolent exchanges among consenting adults. Low-​level offenders often get swept along. Couple this with decreased privacy and we see no-​knock raids, civil forfeiture, and incarceration for non-​violent “offenders.” Many lives are coercively ruined in the alleged name of preventing things which may noncoercively ruin lives. None of this would be happening if all drugs were legal.

Here I’ll limit the focus to currently illegal substances. We are familiar with the ongoing opioid crisis. Street fentanyl makes meth and heroin seem tame in comparison. But too much of the discussion involves treating the symptoms rather than looking at the issue systemically. Mental health struggles and lack of housing or employment options may drive many people to abuse fentanyl and other hard drugs. At the same time, halfway measures such as non-​enforcement of laws against a substance may cause unhoused addicts to fill the streets of certain vicinities such as Kensington in Philadelphia or Skid Row in Los Angeles, which tempts many to argue that stricter prohibitions and enforcement, not legalization, are the only solutions.

There are better and worse ways to legalize. A legal but heavily regulated approach may create an oligopoly of rent-​seeking prescription drug companies, whereas complete legalization is a radical approach consistent with principled opposition to paternalism. Nor should drugs require prescriptions, which often leads to overprescribing by doctors who mislead their patients into a false sense of security. My radical proposal is that drugs should be available to adults over the counter. Potential harms from the availability of such drugs should be addressed through threats of strict liability torts. That way, a person seeking to take pure, untainted meth can know they’re not taking street fentanyl, and they can seek legal recourse if companies act recklessly, an option which isn’t available for illegal street activity. The threat of torts would provide drug manufacturers with incentives to self-​regulate, to keep drug potency at levels that reduce risks of overdosing, and to include resources that treat accidental overdoses. Illegal dealers lack such incentives.

None of this is a panacea, of course. The availability of legal and safer drug options likely won’t eradicate street drugs, but it will reduce the extent of their harm. Still, people will die in a world of radically legalized substances. The question then is “compared to what?” Such a world is preferable to the current one, and it’s an empirical matter whether we can reach that world while reducing harm. Radical reform attempts are at least worth trying, perhaps as decentralized pilot programs in cities and states. Whatever one’s take, we can agree that the federal status quo prohibitions clearly aren’t keeping us safe.

Arguments for or against state paternalism are not mere academic exercises but have real-​world consequences that pertain to all of us. Every law is backed with violence. As professor Stephen L. Carter warns, never argue for invoking the power of law except in a cause for which one is willing to kill. It’s ironic that the state could use violence, even deadly force, against a person who refuses to obey a law meant to be for his own good. Better to have no law at all on the matter.