Statistics from Altmetric.com
I have reviewed, and made criticisms of, Sarah Conly's book elsewhere.1 ,2 In this comment, I am a constructive critic who wants to discuss an argument against paternalism that is different from the three which Conly emphasises in her precis. It is an argument that she attacks in her book, and I want to support her objection to it.i
The argument raises a quite particular objection to paternalism, that is, that it does not treat the object of paternalistic interference with proper respect. For paternalism always rests on a premise that the agent is making a mistake in her decision making , that she is not fully capable of making a rational decision and that she is in some way impaired in her cognitive or affective dispositions. And since all paternalistic interventions assume this premise, they all are expressing a judgement about the agent that is an insult. They fail to treat the agent as a rational and capable agent.3
Two things should be noted about this argument. First, it only establishes that paternalism is pro tanto wrong. There may be occasions where an insult is less important, morally speaking, than some other consideration. Second, it is interesting to note that this objection can apply to ‘nudges’ as well as coercive interventions. For all nudges involve the premise that without the nudge the agent is more likely to make a mistake in his decisions. He will eat the wrong food or not choose the best retirement option.
Now there seem to be a number of ways of defending the insult claim. One can say that if it is true that the agent will, absent intervention, make a mistaken choice, then it cannot be an insult to assume this is the case. But this does not seem correct. If you are overweight, it can still be insulting to say that you are fat. It depends upon the context. In the doctor’s office as part of his diet recommendations it is not. In the dress store, when you are trying on clothes, it is.
If we are talking about governmental paternalism, the issue is whether the expression by the government, addressed to a group of individuals, for example, all motorcycle riders, is insulting and a failure to respect the members of the group.
This depends upon exactly what the premise about defective capacities is. It is not the general assertion that motorcycle riders cannot make rational decisions. Nor is it the assertion that they cannot make rational decisions about what kind of life they want to lead, for example, risk-taking or cautious. Nor is it the claim riders do not value their health and well-being properly. Presumably, almost all riders prefer being alive and not injured to their opposites.
Rather, it is the claim that the group underestimates the degree of risk that is involved in riding without helmets, or that while they properly estimate the risk they underestimate the loss involved in death or serious injury or overestimate the joys of riding helmetless.
Assume, for the sake of argument, that this claim is correct. Why is it an insult to rely on this claim in determining social policy? It amounts to saying they are making a mistake. But we say that to people all the time without insulting them.
But, it will be said, that we do more than assert that the riders are making a mistake. For we could simply distribute a document with the relevant facts when they apply for a licence. Instead, we criminalise their conduct if they do not wear helmets. In effect, we say of them that nothing short of coercion will prevent them from making the mistake. Giving them more information, requiring them to visit comatose riders in the hospital, etc., will not do the job.
But if this is in fact the case, then expressing this judgement through the restriction is just another true thing about their capacities and dispositions. It's just another fact about the members of the class that we cannot prevent the harm at issue if we adopt less restrictive measures. Of course, this is an empirical claim and subject to the usual sceptical scrutiny that government coercion should be subject to.
Shiffrin,3 and others, argues that the wrongness of paternalistic measures arises from the fact of ‘substitution of judgement’. The state substitutes its judgement of what should be done for the agents.ii Sometimes it uses coercion but leaves it to the agent to decide what to do. Sometimes it forces the substitution upon the agent, for example, by making it impossible to purchase large sugared drinks. In these cases, the state makes it either more difficult or impossible for the agent to do what she judges best.
But as Peter de Marneffe4 points out, “The government, however, commonly ‘substitutes its judgment’ for the judgment of others when it adopts an unwanted policy, whether this policy is paternalistic or not. When the government imposes speed limits, for example, it limits the liberty of those who think they should drive faster than the speed limit allows, and so limits their liberty against their will. In so doing, the government substitutes its judgment that motorists should not drive faster for the judgment of those motorists who think they should drive faster. When the government imposes a speed limit paternalistically it acts on the judgment that the reasons of safety for a motorist to drive slower outweigh the reasons of efficiency and amusement for this same motorist to drive faster, and so substitutes its judgment about the relative weight of these reasons for this motorist's own judgment that the reasons of efficiency or amusement for her to drive faster outweigh the reasons of safety for her to drive slower. But when the government imposes a speed limit nonpaternalistically, it also substitutes its judgment for a motorist's own. It acts on the judgment that the reasons of safety for other motorists to want this person to drive slower outweigh the reasons of efficiency and amusement for her to drive faster, and so substitutes its judgment about the relative weight of these reasons for her own judgment that the reasons to drive faster outweigh others’ reasons against it. In both cases, the government limits a person's liberty on the basis of a judgment about the relative weight of reasons that she rejects and so ‘substitutes its judgment’ for hers. Why, then, is paternalistic substitution in judgment insulting assuming that non-paternalistic substitution is not?” (p. 74).4
My view is that the ‘insult’ argument against paternalism fails even in the weak form of a pro tanto claim.
Competing interests None.
Provenance and peer review Commissioned; internally peer reviewed.
↵ ii I leave for another time the interesting question of whether some agents might agree with the government that their welfare would be improved if they were restricted, so there is no substitution of judgement at the level of welfare, but nevertheless claim that they have a right to determine for themselves what to do in the area being restricted, and rights-violation is worse than welfare loss.
If you wish to reuse any or all of this article please use the link below which will take you to the Copyright Clearance Center’s RightsLink service. You will be able to get a quick price and instant permission to reuse the content in many different ways.