Paternalism

Paternalism refers to the practice of interfering with a person’s freedom and personal autonomy for his or her own good. The term evokes the idea of a family led by a benevolent father who looks after his wife and children, even if that should involve sometimes defying their desires and forcing them to do what he knows will best secure their welfare. Although individuals may treat one another paternalistically, such as a doctor who lies to a patient about a life-​threatening illness to save her from grief, the term is typically applied to government legislation aimed at forcing people to make certain choices for their own good. Laws against drug use, mandating the use of seat belts, and the prohibition against voluntary euthanasia are generally intended to keep individuals from harming themselves, whether they like it or not. The view that such laws are legitimate is called legal paternalism or narrow paternalism to distinguish it from broad paternalism, which includes the private application of paternalistic coercion.

Legal or narrow paternalism comes in a number of varieties; soft paternalism is often distinguished from what has been called hard paternalism. The hard paternalist supports laws that prohibit or mandate that individuals make certain choices. The soft paternalist leaves open some space for choice, but deploys coercion more subtly, manipulating behavior through propaganda, by encouraging and discouraging choices through subsidies and taxes, and by throwing up impediments to voluntary action, such as the requirement to acquire a license or undergo a waiting period before undertaking a certain activity.

Another distinction within legal paternalism centers on the way one conceives of where the good or the interest of an individual is located. Torquemada, the Spanish Inquisitor, may be said to have acted paternalistically in torturing individuals to confess their sins insofar as he did this intending to save them from damnation to eternal hellfire, which he believed to be infinitely worse than the pain of the rack. For Torquemada, the true nature of the interests of the individual had been revealed by religious texts and authorities. This kind of religious paternalism, based on a theological conception of the individual good, exists today in a number of theocratic Islamic societies and occasionally rears its head even in relatively secular societies. This view is often closely related, although not identical, to moral paternalism. Pornography, for example, is often banned to protect both its producers and consumers from its allegedly harmful effects on moral character. Welfare paternalismconcerns itself with well-​being as understood more broadly. Laws banning certain fatty foods may be intended to protect the individual’s physical welfare by keeping them from making imprudent dietary choices, and this preference may or may not be considered a moral matter.

Until the emergence of liberal political sentiments in the 17th century, legal paternalism was a rarely questioned feature of political organization. Throughout recorded history, slaves have been considered much like older children, without the full capacity for self-​governance. This deficit required, and therefore allegedly justified, paternalistic regard from their masters. Aristotle notoriously argued that, because some individuals lacked a full rational capacity, they were “natural” slaves and, therefore, required paternalistic guidance. Aristotle regarded most women as falling between natural slaves and fully rational men. Although women were able to reach a complete rational capacity, for the most part they were too emotional to exercise it reliably and, therefore, needed paternalistic guidance from fathers and husbands. This view was common in the West until the end of the 20th century and continues to be common in most of the world.

Liberalism, which developed in part as a reaction against the often explicit paternalism of monarchical, aristocratic, and slave-​holding societies, has generally sought to minimize the state’s paternalistic interference with individual liberty and autonomy. However, although liberal views of natural equality developed, not everyone was seen as equally capable of self-​rule. Not only was legal paternalism regarding slaves and women maintained in countries with explicitly liberal constitutions, such as the United States, but also the idea that some people were limited in developing their full capacities. This view was widely considered a justification for colonial rule by otherwise liberal governments. It was thought to be in the interests of “backward” people to submit to the paternal rule of “civilized” states.

Rights-​based classical liberal thinkers such as Immanuel Kant ruled out legal paternalism on principle as being inconsistent with the autonomous exercise of practical reason, which he regarded as intrinsically valuable. According to Kant, the individual’s right to develop and act on one’s own conception of the good was essential to one’s dignity as a person. To override this right was to treat the individual with ultimate disrespect:

A government might be established on the principle of benevolence towards the people, like that of a father towards his children. Under such a paternal government, the subjects, as immature children who cannot distinguish what is truly useful or harmful to themselves, would be obliged to behave purely passively and to rely upon the judgment of the head of state as to how they ought to be happy, and upon his kindness in willing their happiness at all. Such a government is the greatest conceivable despotism.…

Utilitarian liberals, such as Jeremy Bentham and John Stuart Mill, argued that allowing legal paternalism would have bad consequences for human well-​being and should be opposed on those grounds. The locus classicus of liberal antipaternalism is Mill’s masterpiece On Liberty, in which he lays out his “harm principle” for legitimate government coercion: “The only purpose for which power can be rightfully exercised over any member of a civilized community, against his will, is to prevent harm to others. His own good, either physical or moral, is not sufficient warrant.”

Mill argued that the individual is more likely than not to be the best judge of his or her own good. In any case, when another individual (or assembly) substitutes their judgment for someone else’s, that individual is denied the chance to cultivate his capacities of choice and learn from his mistakes. Generally, judgment improves through practice; thus, people should be left free to use their own judgment even if they sometimes do themselves harm. Finally, truth is hard to come by, and none of us can be fully certain we have arrived at what is unalterably true—especially when it comes to questions of value. Allowing people to act on diverse opinions about human well-​being broadens the search for truth about good lives by allowing experiments in living that may succeed or fail in plain view. Paternalistic interference too often assumes a contentious conception of welfare and short-​circuits this useful process of cultural discovery. So unless an action harms another, individuals should be left at liberty to act according to their own judgment, whether it is saintly or sinful, coolly rational or impulsively emotional.

Legal paternalism is straightforwardly inconsistent with 20th-​century libertarian philosophies, which are grounded on a prohibition against the initiation of coercion; if individuals cannot be coerced for any reason, then obviously they cannot be coerced for their own good. However, even libertarians who embrace this principle of noncoercion recognize that legal paternalism may be legitimate when individuals, such as children, the senile, or the mentally handicapped, lack the capacity to act responsibly in their own interests. Difficult line-​drawing questions are therefore unavoidable. What capacities are necessary for autonomous behavior? Under what conditions are individuals expected to effectively exercise them? Must one have a coherent conception of one’s interests? Must one’s deliberations be free of distorting emotion?

Recent work in so-​called behavioral economics has created a fresh interest in the issues relating to paternalism. One recent argument, going by the name of libertarian paternalism, has caused some controversy due, in part, to the seeming oxymoron embodied in the name. The authors draw on recent work in psychology to demonstrate that individuals do not act as the standard interpretation of microeconomic theory would predict. Because this theory is supposed to set out certain necessary conditions for rational behavior, empirical divergence with the theory is taken as a failure of rationality. This alleged failure then motivates a kind of soft paternalist intervention.

One much-​discussed example of a libertarian paternalist policy is a government mandate that employers must enroll new employees in a savings or investment program under which some portion of their pay is withheld and deposited in a designated account. Employees may choose to opt out of the program, but, if they do nothing, the employer must enroll them by default. This kind of policy is said to be libertarian because it leaves the employee free to choose either to participate or not. However, the standard libertarian view is that individuals and firms must be free to negotiate the terms of labor contracts. If employee and employer are not free to enter into a contract that does not include the opt-​out savings program, then the policy is hardly libertarian in the standard sense. Nor is this paternalism soft, as it is sometimes claimed. Rather, this intervention in the labor market is what is known as impure paternalism, in which some individuals are coerced to protect the welfare of other individuals, as is the case, for example, when the manufacture of cigarettes is made illegal to protect the welfare of the people who might smoke were cigarettes available. In the case of the savings program, workers are paternalistically prevented from entering into alternative labor contracts by the virtue of coercive government regulations of employers. Indeed, a great deal of labor regulation is paternalistic in just this way and is meant to prevent workers from harming themselves by entering into unacceptable labor contracts.

More generally, the recent intellectual revival of paternalism predicated on new psychological findings appears to confuse economic models of rationality for a theory of the minimal conditions under which individuals are capable of acting effectively on their own behalf and according to their own conceptions of the good. As a consequence, when it is discovered that the models do not fit real people, some writers have concluded that there is some kind of problem with the rational capacity of real people, whom they then place in something like the category in which Aristotle had placed women: rational in principle, but unable to exercise rationality without paternalistic supervision. However, because the relevant psychological findings are general, we seem to be left without a fully rational class of paternal supervisors. The agents of government are as limited as the rest of us. But if our rational capacities are good enough to trust politicians and bureaucrats with the welfare of millions of citizens, then it would seem that they also are good enough to trust the citizens to look after themselves.

Further Readings

Aristotle. Politics. Book I.

Camerer, Colin, Samuel Issacharoff, George Loewenstein, Ted O’Donoghue, and Matthew Rabin. “Regulation for Conservatives: Behavioral Economics and the Case for ‘Assymetric Paternalism.’” University of Pennsylvania Law Review 151 no. 3 (January 2003): 1211–1254.

Dworkin, Gerald. “Moral Paternalism.” Law and Philosophy 24 (May 2005): 305–319.

Glaeser, Edward. “Paternalism and Psychology.” University of Chicago Law Review 76 (Winter 2006): 133–156.

Husak, Douglas. “Legal Paternalism.” The Oxford Handbook of Practical Ethics. Hugh LaFollette, ed. New York: Oxford University Press, 2003.

Kant, Immanuel. “On the Common Saying: ‘This May Be True in Theory, but Does Not Apply in Practice.’” Political Writings. New York: Cambridge University Press, 1970.

Mill, John Stuart. On Liberty. New York: Longman Library of Primary Sources in Philosophy, 2006.

Sunstein, Cass R., and Richard H. Thaler. “Libertarian Paternalism.” American Economic Review 93 no. 2 (May 2003): 175–179.