This is an intelligent, thorough discussion of state paternalism, rationally organized and very clearly written. It will be a good resource for those who want to learn about paternalism, both in the various ways it has been conceived of and the various manifestations it has had in public policy. It also does well in providing detailed arguments against some of the common objections made to paternalist theory and practice. I do not think that it offers much that is new in terms of a normative position: the approach ultimately defended is not very different from positions that others have already articulated, in particular, the libertarian paternalism now familiar through the work of Cass Sunstein and Richard Thaler (Thaler and Sunstein Reference Thaler and Sunstein2009; Sunstein Reference Sunstein2013, Reference Sunstein2015). It does, though, offer further exploration of some of the material that others only touch on, and this again makes it valuable.
The book divides roughly into two parts, one that more or less explains the state of paternalist theory and practice today, and one that advances the position that paternalism can, in some cases, be justified.
In Chapters 2 and 3, the authors provide a schemata of concepts. They begin by reviewing the many definitions of paternalism that have been offered in the literature. I may be unique among philosophers in thinking a long discussion of rival definitions is not rousing good fun. After all, in philosophy it is almost a given that any term will have been defined different ways at different times. Some accounts are more apt, some are less apt, and in some cases there just is no fact of the matter, because we haven't got a settled definition. However, for those who do enjoy discussions of definitions, for those who did not know that there is more than one definition of paternalism, and for those who feel particularly bellicose in defence of their own favourite definition, this will be a fruitful chapter.
In the end, Le Grand and New say a policy treats someone paternalistically ‘if it is intended to address a failure of judgment by that individual [and] designed to promote the individual's own good’ (23). Like Sunstein and Thaler in Nudge, they reject definitions of paternalism that include the curtailment of freedom: a subsidy, they argue, designed to make people more likely to visit museums can rightly be called paternalist, even though it does not curtail freedom in the least. They believe that their account doesn't fall prey to the counter-examples that undercut accounts that stress liberty, and further avoids some ‘conflicting interpretations of what counts as an interference in autonomy’ (16).
On the other hand, it gives rise to some confusions of its own. Many might say that failures of reason justify paternalistic intervention, rather than that such failures must be present for a policy to qualify as paternalistic in the first place. Indeed, in later chapters, Le Grand and New themselves use the presence or absence of reasoning failures to differentiate between justified and unjustified paternalistic interventions, when by their lights intervention in the absence of a reasoning failure isn't paternalist at all. In Chapter 5, for example, they say that ends-related paternalism, which doesn't correct for judgement but rather imposes values that the subject himself doesn't hold, isn't justified because we can't prove any reasoning failures when it comes to ends (101–105). Later, in Chapter 8, they assess what they refer to as paternalistic policies and argue that only those polices that correct for reasoning failure are justified, when according to their definition policies that don't correct for reasoning failures furthermore aren't paternalistic at all, which they don't, at this point, mention. This change of emphasis is a bit confusing.
Chapter 3 continues with the mapping of the current paternalist territory. The authors provide accurate accounts of the various kinds of paternalism: hard, soft, pertaining to means or to ends, legal and moral, among others. This again is useful to those wanting an overview of the subject, although not, for the most part, novel.
In Chapter 4, we see a discussion of current paternalistic government practices, and a defence of the claim that these are, in fact, paternalistic. When proponents of paternalism point out that we have and endorse a number of paternalistic regulations, a standard rejoinder from critics is that such practices all have non-paternalist justifications: it is permissible to require motorcycle helmets, for example, because of externalities – costs to others than the helmetless rider who suffers injury, either in terms of the financial costs of recovery or the psychic costs to those whose cars caused the injury.
The authors argue that these supposed non-paternalistic justifications fail. If we were concerned about medical costs, we could merely charge motorcyclists a sufficient fee for engaging in the dangerous activity. We wouldn't need to ban the activity that endangers them if we weren't trying to protect the riders themselves. As to psychic costs to third parties, they argue, these are not costs we generally allow to count when it comes to prohibiting activities – we don't usually think an activity should be banned simply because the knowledge that others engage in it causes us pain. Given this, only a paternalistic rationale makes sense of requiring helmets.
Other non-paternalist justifications for interference also fail to show that some practices aren't truly paternalist. When the state provides information as to how dangerous smoking is, for example, the desire is not simply to inform us of a pertinent fact about smoking. If that were true, the state could list the benefits of smoking (relaxation, or whatever) as well as the harms, but this never happens. Information is designed to persuade citizens to adopt a certain course of action, not merely to allow them to make an informed choice. Space does not allow me to report all the authors’ refutations of claims that there are non-paternalist justifications for such beneficial policies, but theirs is a comprehensive discussion that is again extremely clear and convincing.
The next few chapters develop a normative theory, while the authors continue their overview of the state of inquiry in various areas. In Chapter 5, the authors review the findings of behavioural economics, endorsing the claim that we suffer from systematic biases when it comes to making decisions. Their presentation of the findings of Daniel Kahneman and Amos Tversky (Kahneman et al. Reference Kahneman, Slovic and Tversky1982; Kahneman and Tversky Reference Kahneman and Tversky2000), of Richard Thaler (Thaler Reference Thaler1992), and others, is once again clear and thorough, but it is material that has been pretty well discussed by now, by Kahneman, Tversky, et al. themselves, of course, but also by those who discuss the policy implications of these findings, especially the works of Cass Sunstein. If the reader isn't already familiar with this body of work, though, she will appreciate the evidence that we are indeed subject to failures of reasoning in various contexts. In terms of normative theory, the authors use these findings to argue that paternalistic intervention can be justified, because we often choose means that fail to promote our ends, and correcting for these mistakes only help us get where we ourselves want to go. Such intervention is justified only when it applies to the means the agent chooses, rather than the end he ultimately pursues, because it is in choosing means that we see these reasoning failures.
How and when may we intervene? The authors see a trade-off between well-being and autonomy. Well-being consists in reaching one's goals, which will be aided by paternalistic interventions, and autonomy, discussed in Chapter 6, is ‘the ability to act as a deliberating agent’ (105). Governments should act to correct our failures in reasoning when those have a significant impact on our well-being, but should aim for the greatest increase in well-being consistent with the least loss of autonomy. Some loss of autonomy is inevitable when we endorse paternalistic practices, for Le Grand and New: those who think they can affect choice without diminishing autonomy forget that ‘autonomy has as one of its essential elements individuals’ belief that they are governing their own lives’ (108), and no matter how unintrusive a paternalistic policy, ‘the object of paternalistic intervention will almost always perceive his autonomy as being offended’ (108). Some such losses are acceptable in light of the gains to welfare made possible through appropriate paternalistic intervention, but they should be minimized.
To this end, the authors review (in Chapter 8) acceptable policies as they concern three potential areas of paternalist intervention: smoking, pensions and assisted suicide. Refusing to allow physician-assisted suicide to those who choose it turns out to be unjustified, since those who chose it need not have made a mistake in reasoning – they simply have values with which some might disagree. Cigarettes can indeed be discouraged, but bans are not preferred: rather, smokers can sign, or not sign, contracts that will allow them to buy cigarettes for a distinct period of time, with the hope being that in a moment of strength they will not sign the possible contract and then will be forced to forgo cigarettes even when their resolve weakens. For pensions, they favour the libertarian paternalist policy, where the default option is that the individual is enrolled in the most beneficial pension programme, but can opt out if she chooses. For all of these, the idea is that failures of reasoning are corrected for in the way most consistent with preserving autonomy.
This normative position leaves some questions. Le Grand and New support interventions when it comes to people's choice of means, not ends. This raises at least two issues. The authors support the claim that intervention is permissible only as to means, not ends, by saying that we can clearly perceive when people have chosen inappropriate means, but that there is no way of showing that someone has chosen an end poorly. Those who choose controversial ends haven't demonstrably made ‘compelling’ errors of logic and there is no ‘empirical’ way of testing whether someone has chosen a poor end – no way of showing that a person's ultimate goals or values are mistaken (102). A number of people, though, clearly think that we can correctly characterize some people's goals as bad for them, and might argue that neither empirical evidence nor an obvious failure of deductive reasoning is necessary for us to demonstrate error when it comes to value. Aristotelians, for example, may say that what is essential to a person is that he is human, and that to be human is to have a particular function, and that to be a good human is to fulfil that function well. Insofar as you deviate from that, you undercut your own well-being. I myself am sympathetic to the authors’ belief that intervention as to ends is unjustified, but the question as to how ends may be properly evaluated is more complicated than they suggest.
Second, as they do note, it can be extremely difficult to discern which of one's choices are mere means to the achievement of ends, and which reflect the desire for something as an end in itself. Take the pursuit of fame. Many people pursue fame who already have achieved wealth and success, for example, so they don't pursue fame to attain those. Do they pursue it as an end in itself? Or might we think that they pursue fame as, for example, a means to buttress their own shaky self-esteem? How can one determine such a thing? While some means/ends differences are pretty clear (presumably, no one has dental appointments for the sake of doing so, but only as a means to dental health) others are not, so the scope for intervention is not easily determined. Le Grand and New suggest (103) that surveys will help: we can ask people if, having done x, they now believe it was a mistake to have pursued x, but I'm not sure that even post-hoc agreement that mountain-climbing (their example) was a mistake shows that it wasn't pursued as an end in itself. We sometimes change our ends, after all. Or, if we respond that we are glad we pursued x, and mean to pursue it again, the question of whether we pursue it as a means or an end is still not clear. Since we often don't know why we want the things we want, our responses may not be informative to policy-makers. More discussion would be of interest here.
Then, there is the issue of autonomy. Since Le Grand and New believe that paternalistic policies need to give us the greatest amount of well-being with the least loss of autonomy, we need a clear and correct idea of what autonomy consists in. One peculiarity of Le Grand and New's account is that, as mentioned, they include ‘perceived’ autonomy as relevant here – if I think I have lost control, this diminishes my autonomy. For this reason, they think that coercion through public bans or other prohibitive regulations is worse than regulations that affect behaviour more subtly: the individual will be aware that she is being controlled, which in itself is a loss of autonomy on their account, and she furthermore may react against such control by doing just what the regulation tries to prevent.
I find this unconvincing. For one thing, while it may be detrimental to happiness for a person to believe that she is being controlled, I just don't see that it is detrimental to her autonomy. After all, such perceptions can be quite wrong, and it is peculiar to think that one's autonomy can be diminished (or augmented) by making a mistake about one's circumstances. A person may think she is in full control of herself when in fact her choices were caused by hypnosis, or some other mind control. Surely the fact that she doesn't know she's being controlled can't contribute to her actual autonomy. If anything, the perception that she lacks control might be thought to make her more autonomous – at least then she has full information.
Second, Le Grand and New believe that the perception that one is being coerced is likely to cause a reaction: the more a person sees that a policy is trying to make him do one thing, ‘the less he will change his behavior in the direction in which the policy is trying to steer him’ (110). The effectiveness of the intervention will be reduced, because ‘a loss in perceived autonomy will damage intrinsic motivation’ (132). I question how much this is true. When asbestos was banned, did we see a mad rush to buy forbidden asbestos tiles for our houses? It is true that when seat belts were made mandatory there were people who complained about that, and who resisted using them, but were these people who would gladly have buckled up if that hadn't been made a legal requirement? Surely not. If anything, we have a natural tendency to conformity, according to social psychologists. A practice's becoming illegal makes us likely to think it is especially disapproved of by our peers, and we have a natural tendency to want to do what our peers approve of (Asch Reference Asch1955, Reference Asch1956; McAdams Reference McAdams2015). This matters, since if coercive regulations are indeed counter-productive that would be a good reason to reject them – but I don't see the evidence for this.
Lastly, as a practical matter, I question the authors’ attempt to preserve autonomy and yet promote well-being, at least when it comes to smoking. On their picture, some people will have signed the smoking contract, and will have access to cigarettes, and others will not. Surely, though, those who bravely opted out of the smoking contract will find it all-too-easy to buy cigarettes from those who have legal access to them, so not having signed the contract will do nothing to prevent them from getting cigarettes. Le Grand and New argue that there are black markets even where there are complete bans on a substance, but surely there will be much more of one where cigarettes are legal and readily available for lots of people. As is often the case, our failure to diminish autonomy results in a huge loss of well-being, not just a small one.
So, these are caveats. On the whole, as I have said, the book is intelligent and clear, and while it leaves questions unanswered, it provides accurate, complete information and explores many questions well.
