Even certain libertarian-leaning writers have argued that there isn’t much, if anything, paternalistic about Thaler and Sunstein’s ‘libertarian paternalism’. Will Wilkinson, formerly of the libertarian Cato Institute, writes in the Economist’s ‘Democracy in America’ blog: ‘By definition, “choice-preserving policy” is not paternalistic policy.’ Atlantic journalist Conor Friedersdorf believes it is possible to ‘sell “libertarian paternalism” to actual libertarians’. He writes: ‘My enthusiasm for “libertarian paternalism” is high when there is no neutral default position possible, and government sets an enlightened default within a realm it properly controls. I am even amenable to some government mandates… But to be worthy of its name, “libertarian paternalism” must go further… in insisting on a bright line between enlightened defaults and paternalistic mandates with no opt-out.’ In other words, as long as there is an opt-out, nudge policy’s ‘enlightened defaults’ are okay.
But what Thaler, Sunstein and their fans miss is the fact that just because nudges offer a degree of choice, this does not, in itself, mean that such programmes are respectful of individuals’ liberty and decision-making capacities. Nor does that fact render nudges any less paternalistic.
In his excellent critique of libertarian paternalism, New York-based academic Mark White highlights the highly problematic way in which nudging ‘choice architects’ construct scenarios. As the title of his book – The Manipulation of Choice - indicates, White finds that the nudge game is rigged. Nudgers not only believe people make the ‘wrong’ choices due to behavioural flaws, they also seek to play upon those same flaws to prod people to make what nudgers believe are the ‘correct’ choices.
White writes: ‘Libertarian paternalism is very much coercive, and in some ways more insidious than “old school” paternalistic policies such as prohibiting or taxing behaviour. Rather than telling people what to do or not to do, or influencing them explicitly with taxes, nudges – such as changing default options or the arrangement of choices – have an intrinsically covert nature, designed as they are to piggyback on people’s cognitive biases and dysfunctions to “guide” them into the “right” choices. Even if one is comfortable with some paternalism on the part of government if done openly and transparently, it is unseemly for policymakers to use people’s decision-making flaws to manipulate them, subtly and secretly, into making choices that policymakers want them to make, rather than the ones they would have otherwise made themselves.’
One example would be the ban on large sodas and other sugary drinks introduced last year by New York mayor Michael Bloomberg (which was subsequently struck down as unconstitutional). This move can be viewed as a nudge (albeit a pushy one) insofar as people would still be able to exercise their choice and buy multiple drinks. But typical of nudges, such a ban does not seek to appeal to rational argument. Instead, the nudge rests on the assumption that we’ll be too lazy or embarrassed to purchase additional drinks. Another example is default enrollment in employer-provided savings plans (401k plans in the US), whereby employees are automatically enrolled and have to take action to opt-out. It sounds good on the surface, but being in such a plan may not be in every employee’s interest, and even if it were, being tricked into joining through a default option is not the same thing as freely choosing.
Bowdoin College (US) philosophy professor Sarah Conly, like Mark White, also criticises libertarian paternalism for being manipulative. ‘The point of the nudge is to push you in ways that bypass your reasoning… The assumption is that because our decision-making ability is limited we need to use non-rational means to seduce people into doing what is good for them’, writes Conly in her book Against Autonomy, published earlier this year. Maintaining a semblance of choice is Sunstein and Thaler’s attempt to placate the classical liberal outlook, but ‘it doesn’t really respect choice, in the sense of thinking that people should be left to their own devices in deciding what to do’. However, unlike White, Conly cites this shortcoming as an argument to introduce more coercive forms of paternalism.
For Conly, the real problem with nudges is that they don’t work. ‘Some of those who ignore the nudge towards the fruit and go for the pork rinds will be wedging unhealthy, cholesterol-ridden bodies under the cafeteria table, because after years of such food they have a craving for fat and salt that no nudge will override, even while such a diet will give them shorter, more painful lives.’ As that passage reveals, Conly expresses a real disgust for the masses who apparently cannot control themselves.
Instead of pussyfooting around with nudges, Conly wants ‘to save people from themselves by making certain courses of action illegal’. This includes banning smoking, trans-fats and other unhealthy things. In her op-ed in the New York Times, entitled ‘Three cheers for the nanny state’, she applauded Bloomberg’s ban on Big Gulps.
In his review of Conly’s book, Sunstein finds much to admire, but thinks she goes too far. ‘Freedom of choice’ must be offered, because it is ‘an important safeguard against the potential mistakes of even the most well-motivated officials’, he writes - and by ‘choice’ he includes the kind of manipulated choices allowed under his nudge schemes. Furthermore, he argues that outright bans, like Conly’s proposed banning of cigarettes, are impractical because they are hard to enforce.
Rather than get caught up in Sunstein and Conly’s ‘should we nudge or ban?’ debate, it is important to recognise the negative consequences of the paternalistic outlook they share. Despite their disagreements on tactics, they start from the same assumptions.
Both Sunstein and Conly attribute various social problems to the fact, as they see it, that individuals consistently fail to act in their own best interests. Take obesity, for example. Both authors claim that many people say they want to lose weight, but these same people continually fail to make the correct choices (to eat well or exercise), which means they will remain obese with all the health complications that entails. Government should not just stand idly by, they argue. Instead, it should act to stop people from making ‘bad’ choices.
But as some critics of public-health authorities have pointed out, the definition of obesity has been broadened to include the slightly overweight – and obesity’s impact on health more generally (especially on longevity) is far from definitive. Thus, by hyping up an obesity ‘epidemic’, paternalists exaggerate the extent of so-called ‘self-harm’ in the name of justifying outside intervention.
Both Sunstein and Conly are wrong to claim that they know people’s interests, and that they are only ‘helping’ people realise the goals they have set themselves. To continue with the obesity example: wanting to be slim is a value judgment which should not be projected on to others. Indeed, the relatively recent preoccupation with weight is primarily an elite concern, not shared by all. When deciding what to eat, some might think about food taste rather than calories (or not think about either). Maybe people have multiple interests – and one interest (working to earn a living) might make it harder to find the time to pursue another interest (exercise). When Sunstein or Conly refer to ‘we’, they erroneously assume everyone shares their goals. But, as White says, paternalism ‘is not about helping people make better choices – it’s about getting people to make the choices policymakers want them to make’.
This paternalistic approach changes the relationship between government and citizens. Instead of government representing us, working for us, government now works on us, trying to change our interests. It would be one thing if government sought to convince the public in open debate, but those who would nudge or ban do not want to have open debate or discussions. As the term ‘paternalism’ implies, citizens are essentially treated like children who do not speak; they are only spoken to.
Underlying both Sunstein’s and Conly’s arguments – and providing a pretext for an infantilising stance towards the public - is an assault on the idea of people as rational subjects. Sunstein and Thaler’s Nudge famously relied on behavioural economics and its assertion that people have certain biases and flaws in thinking. Conly piggybacks on this work. Time and again she states that John Stuart Mill’s classic source of anti-paternalist arguments, On Liberty, is now outdated. ‘We have already revised our view of human agency, following Marx, Freud and the philosophical insights of feminism. What we see now, in light of contemporary psychology and behavioural economics, is that some further revision is necessary.’
As the title of her book Against Autonomy indicates, Conly admits that her paternalism is a denial of liberty and moral autonomy. Indeed, she argues that the kind of autonomy that philosopher Immanuel Kant and others have extolled is not all it’s cracked up to be:
‘The ground for valuing liberty is the claim that we are pre-eminently rational agents, each of us well suited to determining what goes in our own life. There is ample evidence, however, from the fields of psychology and behavioural economics, that in many situations this is simply not true. The incidence of irrationality is much higher than our Enlightenment tradition has given us to believe, and keeps us from making the decisions we need to reach our goals. The ground for respecting autonomy is shaky.’
Conly’s bluntness in attacking autonomy can take you aback: ‘The reason for intervention is that we don’t trust you to choose rightly. We are taking away freedom of choice in those cases because we don’t think people will choose well themselves. We don’t think preserving your autonomy, your freedom to act based on your own decision, is worth the costs, in part because your decision-making is done so badly that your freedom is used very poorly.’
For both Sunstein and Conly, people’s irrationalism means they can’t look after themselves, and that provides a rationale for calling on the government to step in. But Conly is effectively saying to Sunstein: we both agree that people are stupid, but if people are stupid, why do you want to give them any choice at all?
I can at least give Conly credit for going to the heart of the matter, and recognising that the key question is one of autonomy. Anyone who recoils at the idea of paternalism needs to challenge the attack on human agency that both Conly and Sunstein champion. One response is to highlight how their broad claims are not warranted by their research. But it’s even more important to note that, despite our biases in decision-making, we still retain the capacity for purposeful subjectivity that overcomes those biases. Yes, we humans have flaws, but for all those flaws we have managed to transform our circumstances, to cooperate and to build advanced societies. And, as it happens, Enlightenment thinkers like Mill were well aware of biases and backward tendencies. What is different about today is not that we have discovered some amazing psychological or biological insights that totally undercut the rational subject; no, what’s different is that today’s elite are deeply pessimistic, and that pessimism is projected on to human subjectivity more generally.
Paternalism had, until recently, become something of a taboo subject, conjuring up visions of Big Brother. Yet, five years after Nudge, policymakers and academics are treating it as a legitimate topic, and debating the best method of applying the idea. As we can see from the discussion surrounding Conly’s book, the idea of nudge – presented as ‘gentle’ or ‘soft’ paternalism – has opened the door for pushing the government to take more coercive steps. Given that America’s Prohibition (of alcohol) from 1919 to 1933 has been widely considered a moment of madness, who would have imagined that intellectuals would be taking seriously a call to prohibit cigarettes?
Indeed, widespread acceptance of the idea that people are hopelessly irrational and flawed can have wider – and more damaging – consequences than just bans on sodas and cigarettes. If people are so useless at making decisions, why not intervene in other areas of life beyond health – for example, what jobs people have, or who they marry? Arguably these areas determine people’s ‘wellbeing’ as much as health does. As it happens, Conly doesn’t rule out arranged marriages in the future; it’s just that the research isn’t complete yet. ‘Professionals don’t have the data about long-term compatibility we would need in order to make successful predictions’, she writes. And given such authoritarian tendencies, I suppose we should not be totally surprised to learn that, for her next project, Conly will argue for the right of the state to impose one-child families.
But for the time being at least, Conly’s favoured techniques are not really on the cards. The more deceptive – and no less paternalistic – Sunstein-style nudging is more likely to be the preferred method. The elite’s turn to paternalism is not about the specific issues themselves – after all, a big soda ban really just amounts to a token gesture. What the paternalistic turn really reflects is a ruling class at sea, pessimistic about its ability to take society forward. In the absence of meaningful change that could really transform people’s circumstances, such measures give politicians a sense of purpose (to ‘help’ to show they care) that is otherwise lacking. Feeling vulnerable itself, the elite projects its own insecurities on to the population at large, and frets about issues that weren’t considered to be such big problems before. They just can’t imagine that others don’t share their preoccupations, which is why they so easily assume they can paternalistically substitute their own interests in the name of all.
We don’t live in a restrictive period like the US Prohibition of the 1920s and 1930s. But in some respects, our situation is worse. The ‘dry movement’ of the late nineteenth century was led by groups such as the Women’s Christian Temperance Union, who, according to its leader Frances Willard, sought to create ‘a union of women from all denominations, for the purpose of educating the young, forming a better public sentiment, reforming the drinking classes, transforming by the power of Divine grace those who are enslaved by alcohol, and removing the dram shop from our streets by law’. Women often entered public life for the first time in this movement, which also fought for women’s suffrage and labour reforms. As bad as Prohibition would become, the movement was started by people who thought the heavy-drinking working classes could take control of their own situation by means of education.
Today, in contrast, our paternalists don’t see any hope of redemption. People, in their view, are irredeemably irrational – it’s hardwired in our brains or genes. Those who would nudge or ban think that the masses do not have the capacity to reason or learn from making bad decisions, and so they won’t even try to convince using arguments, nor will they allow others to make decisions. Left to their own devices, people will only harm themselves.
As today’s discussion reveals, the new paternalists are relentlessly pessimistic about humanity. But that doesn’t mean we have to be.
Sean Collins is a writer based in New York. Visit his blog, The American Situation.