In Our Best Interest: A Defense of Paternalism 0190877162, 9780190877163

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In Our Best Interest

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In Our Best Interest A Defense of Paternalism Jason Hanna

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1 Oxford University Press is a department of the University of Oxford. It furthers the University’s objective of excellence in research, scholarship, and education by publishing worldwide. Oxford is a registered trade mark of Oxford University Press in the UK and certain other countries. Published in the United States of America by Oxford University Press 198 Madison Avenue, New York, NY 10016, United States of America. © Oxford University Press 2018 All rights reserved. No part of this publication may be reproduced, stored in a retrieval system, or transmitted, in any form or by any means, without the prior permission in writing of Oxford University Press, or as expressly permitted by law, by license, or under terms agreed with the appropriate reproduction rights organization. Inquiries concerning reproduction outside the scope of the above should be sent to the Rights Department, Oxford University Press, at the address above. You must not circulate this work in any other form and you must impose this same condition on any acquirer. Library of Congress Cataloging-in-Publication Data Names: Hanna, Jason (Associate Professor of Philosophy), author. Title: In our best interest : a defense of paternalism / Jason Hanna. Description: New York : Oxford University Press, 2018. | Includes bibliographical references and index. Identifiers: LCCN 2018008367 (print) | LCCN 2018028127 (ebook) | ISBN 9780190877163 (online content) | ISBN 9780190877149 (updf) | ISBN 9780190877156 (epub) | ISBN 9780190877132 (cloth : alk. paper) Subjects: LCSH: Social psychology. | Paternalism—Social aspects. Classification: LCC HM1033 (ebook) | LCC HM1033 .H376 2018 (print) | DDC 302—dc23 LC record available at https://lccn.loc.gov/2018008367 9 8 7 6 5 4 3 2 1 Printed by Sheridan Books, Inc., United States of America

For my family

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CONTENTS

Acknowledgments  ix 1. Pro-​Paternalism   1 1.1. What Pro-​Paternalism Is   3 1.2. Interests: Three Issues   8 1.3. Anti-​Paternalism   18 1.4. Further Clarifications   21 1.5. Plan of the Book   28 2. Misapplication and Individuality: Millian Arguments   31 2.1. Mill and Paternalism   32 2.2. Moral Principles and Institutional Rules   36 2.3. Rule-​Consequentialism   39 2.4. An Absolute Prohibition?   42 2.5. Individuality   47 3. Insult and Equality   56 3.1. Three Preliminary Replies   58 3.2. The Motive-​Based Objection   60 3.3. The Expressive Objection   67 3.4. The Status-​Based Objection   75 4. The Imposition of Values   87 4.1. The Weak Constraint   89 4.2. Stronger Constraints   92 4.3. “Means-​Related” vs. “Ends-​Related” Paternalism: Problems  102 4.4. Admissible and Inadmissible Interests, Revisited   107 4.5. A Problem Case: The Jehovah’s Witness   111 5. Paternalism and Moderate Deontology   118 5.1. Moderate Deontology   119 5.2. Brennan’s Analysis   123 5.3. The Net Interests Principle and the Zero Threshold Proposal  128

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[ viii ] Contents

5.4. The Positive Threshold Proposal   136 5.5. Autonomy   140 6. Soft Paternalism I: The Ignorance Exception   145 6.1. Soft Paternalism   147 6.2. Ignorance and Responsibility   151 6.3. Preferring Ignorance for Its Own Sake   155 6.4. Hypothetical Informed Consent   159 6.5. Voluntariness and Risk   163 7. Soft Paternalism II: The Impairment Exception   170 7.1. Impairment: Examples   172 7.2. Impairment and Imprudence   174 7.3. Impairment and Voluntariness   182 7.4. The Desire-​Based Account: Implications   185 7.5. The Desire-​Based Account: Further Problems   192 7.6. Summary: Rejecting the Hard/​Soft Distinction   196 8. Libertarian Paternalism, Manipulation, and the Shaping of Preferences   199 8.1. Preference-​Shaping Paternalism and the Manipulation Objection  201 8.2. Preference Shaping: Rational Persuasion or Manipulation?   206 8.3. An Account of Manipulation   209 8.4. Applying the Account   216 8.5. The Subliminal Messaging Objection   220 9. Applications   228 9.1. Tobacco   229 9.2. Alcohol   236 9.3. Compulsory Insurance   240 9.4. The Withholding of Medical Information   246 9.5. Conclusion   250 References  253 Index  267

ACKNOWLEDGMENTS

In 2012, New  York City’s Board of Health approved a policy prohibiting restaurants from selling soda in containers larger than sixteen ounces. The stated aim of the policy was to combat obesity-​related illness. Not surprisingly, however, the “soda ban,” as it was perhaps misleadingly called, generated considerable controversy. Before a court ruling that struck down the policy, a group of protestors took to the streets, wielding large plastic cups to signal their opposition. Newspaper advertisements and editorial cartoons depicted then-​mayor Michael Bloomberg as an overbearing nanny. The view expressed by these opponents of the soda ban seemed clear enough:  it is not the government’s job to protect us from our own imprudent choices. What is less clear, however, is just how far most people would be willing to take this line of argument. While people sometimes complain about meddling by the “nanny state,” most also accept some policies, such as anti-​ drug laws, that appear to be manifestations of the nanny state. Indeed, opponents of the “soda taxes” recently enacted in some American cities do not seem especially interested in rolling back or reducing taxes on tobacco. The tension apparent in common attitudes toward paternalism helps to explain why it remains a problem of philosophical interest. I once approached this problem in the way that I suspect many would: I believed that although paternalism toward competent adults is presumptively wrong, exceptions should be made in particular cases. The more I  thought about how this basic approach might be developed, however, the less tenable it began to seem. Eventually, I came to believe that there is nothing distinctively objectionable about paternalism. This book is my attempt to explain and defend this pro-​paternalistic view. I first wrote about paternalism for my doctoral dissertation, completed at the University of Colorado Boulder under the supervision of David Boonin. Without David’s support and encouragement at that early stage in

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my philosophical career, this book would never have been written. I can only hope that some of the clarity, rigor, and originality that David brings to his work has rubbed off on me; his enthusiasm for applied ethics certainly has. After completing the dissertation, I wrote periodically about paternalism and related issues for a number of years. A 2015–​2016 faculty fellowship from the Center for Ethics and Public Affairs at Tulane University’s Murphy Institute enabled me to bring together many of my ideas, write several chapters, and revise several others. I  am grateful to the Murphy Institute—​especially Steven Sheffrin and Meg Keenan—​for a productive and enjoyable year. I am also grateful to Northern Illinois University, both for granting me the year of research leave and for a semester-​long sabbatical during which I finished the full manuscript. I have learned a great deal from friends and colleagues with whom I discussed my views on paternalism. Although many disagreed with me, their feedback was for my own good. I would like to thank Eric Chwang, Kalle Grill, Jonathan Quong, Jason Raibley, Jon Riley, Danny Scoccia, and Chad Van Schoelandt for helpful feedback on parts of the manuscript. Daniel Groll revealed himself to be a reviewer for Oxford University Press, in which capacity he provided a number of helpful suggestions on the penultimate draft. I  would especially like to thank Peter de Marneffe, who offered generous and invaluable feedback on a draft of the full manuscript, read the manuscript again (I later learned) as a reviewer for OUP, and generally offered more assistance than I  had any right to expect. Without Peter’s help, this book would have included far more mistakes than it undoubtedly still does. For valuable discussion, I  am grateful to audiences at Bowling Green State University; Tulane University; the University of Colorado Boulder; the first meeting of the Philosophy, Politics, and Economics Society; the Ethics of Bodily Commodification conference at The College of New Jersey; and the Respecting Context-​Dependent Preferences workshop at Umeå University, Sweden. A former student, Haley Dutmer, provided helpful research assistance. Students in two seminars I taught on paternalism, coercion, and exploitation at Northern Illinois University served as valuable test audiences for some of the arguments contained in this book. I am also grateful to Lucy Randall and Hannah Doyle at OUP for their assistance and support. Parts of this book draw on three previously published essays: “Paternalism and the Ill-​ Informed Agent,” Journal of Ethics 16 (2012): 421–​439 (© Springer Science+Business Media B.V. 2012). With permission of Springer (­chapter 6).

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“Paternalism and Impairment,” Social Theory and Practice 37 (2011): 434–​460 (­chapter 7). “Libertarian Paternalism, Manipulation, and the Shaping of Preferences,” Social Theory and Practice 41 (2015):  618–​ 643 (­chapter 8). I am grateful to the publishers and the anonymous reviewers of the original articles. My greatest debt, as always, is to my family:  to my parents, Sam and Sara Hanna, who always have my best interest at heart; to Courtney, a partner in paternalism; and to Lorelei and Phoebe, the objects of my paternal affection. This book is for them.

In Our Best Interest

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CHAPTER 1

Pro-​Paternalism

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eople sometimes make imprudent choices and cause themselves harm. The reasons for this are as numerous as they are familiar. We ignore relevant information or pay attention only to what we want to hear. We act impulsively, without appreciating the consequences of our behavior. We are shortsighted and discount our future interests. We fail to recognize how our tastes and desires are likely to change. We engage in wishful thinking. We procrastinate and suffer from weakness of will. The results of these shortcomings are hardly trivial: through our own choices, we limit our opportunities, damage our health, and shorten our lives. The claim that we sometimes choose imprudently hardly seems provocative. But it does raise a difficult question: When, if ever, is it permissible to intervene in a person’s affairs for that person’s own good? In other words, when, if ever, is paternalism justified? Many philosophers are suspicious of paternalism. In On Liberty, J. S. Mill claimed that each person has “absolute” authority over that portion of his conduct “which merely concerns himself.”1 Of course, virtually everyone, including Mill, accepts some paternalism, such as that directed toward children or adults of unsound mind. Nonetheless, many people would claim that it is never permissible to intervene in the choices of a sane, sober, and competent adult for paternalistic reasons. Others would hold that there is always a weighty objection to such intervention, even if it is in the best

1. Mill (1859: I.9, 224). Here, and throughout, citations to On Liberty will first be indicated with a chapter and paragraph number (e.g., I.9), followed by a page reference (e.g., 224) to John M. Robson, ed., The Collected Works of John Stuart Mill, Vol. XVIII (Toronto and London: University of Toronto Press and Routledge & Kegan Paul, 1977).

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[ 2 ]  In Our Best Interest

interest of the person subject to it. As two recent commentators observe, normative debates over paternalism “don’t usually concern whether it is problematic but rather how problematic it is.”2 Moreover, while there is broad agreement that paternalism is often objectionable, there is considerable disagreement about what makes it objectionable, when it is. In my view, a compelling account of the wrongness of paternalism has proved elusive, and this is so for a very simple reason:  there is nothing distinctively objectionable about paternalism. If intervention in a person’s affairs would be in her best interest, then it does not treat her impermissibly. Such intervention is justified unless it is wrong in virtue of its effects on others. These claims, suitably clarified, constitute the central thesis of this book. My position is likely to strike many people as implausible. If there is nothing distinctively objectionable about paternalism, are there any limits on the interference to which we may be subject? Isn’t it presumptuous for others to make decisions about my own life? Such questions may seem embarrassing to the defender of paternalism. Nonetheless, I will argue that they can be adequately addressed. Some common objections rest on misunderstandings of what, precisely, the defender of paternalism is claiming, while others rely on moral claims that we have good reason to reject. The problem of paternalism is important both practically and theoretically. At the theoretical level, moral and political theories are sometimes praised for condemning paternalism and are sometimes criticized for permitting paternalism (or for permitting too much paternalism).3 More generally, the permissibility of paternalism is likely to reveal something important about the scope and contours of our moral rights and about the moral limits of political power. At the practical level, questions about paternalism are important because there surely appear to be some acts and policies that can be justified if, and only if, paternalistic rationales are counted in their favor. Thus, at least on the face of it, laws requiring the use of seat belts and some laws restricting access to potentially dangerous drugs would appear to be justified, if at all, on paternalistic grounds. More controversially, some have argued that laws requiring citizens to purchase certain types of insurance, such as health insurance, are best justified on paternalistic grounds.4 Our 2. Coons and Weber (2013: 2, emphasis in original). 3. To take just two examples, Anderson (1999: 300–​301) criticizes certain “luck egalitarian” views on the grounds that they can support apparently justified policies only on objectionably paternalistic grounds, while Quong (2011: chap. 3) argues that perfectionist views in political philosophy are objectionably paternalistic. 4. See Midtgaard (2015).

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views about the acceptability of a range of public policies are likely to turn on our views about paternalism. Although questions about paternalism are bound up with many policy disputes, my central aim is not to defend any particular policy or political agenda. Rather, I will discuss and defend a view about the moral status of paternalistic rationales, or rationales that appeal to a person’s own interests in order to justify intervention in her affairs. Instead of deriving this view from a fully comprehensive moral theory, I will attempt to defend it by isolating a set of moral concerns prominent in debates over paternalism. It has sometimes been claimed that intervention in a competent adult’s self-​regarding choices virtually always does more harm than good. While this claim, commonly attributed to Mill, no doubt indicates one common source of opposition to paternalism, many of Mill’s critics have convincingly argued that there is good reason to deny it, as I  further discuss in ­chapter 2.5 Consequently, it is perhaps more common nowadays for anti-​ paternalists to argue that even effective paternalistic intervention can be objectionable, perhaps because it is insulting or disrespectful, or because it imposes values on people, or because it violates their rights. In the following chapters, I interpret and address each of these common concerns, with an eye toward showing that there is nothing distinctively objectionable about paternalism. Moreover, I  argue that prominent competitors to my view face formidable challenges of their own. The aim of this introductory chapter is relatively modest: it explains and clarifies the view I shall be defending, which can be labeled pro-​paternalism. After describing this view (sections 1.1–​1.2), I  distinguish it from its anti-​paternalistic competitors (section 1.3). I then address several further definitions and distinctions (section 1.4) before outlining the argument of the book (section 1.5).

1.1 WHAT PRO-​P ATERNALISM IS

The pro-​paternalist view, as I  shall understand it, is not fundamentally a view about the permissibility of a certain sort of behavior—​for instance, behavior that can be appropriately described as “paternalistic.” Instead, it is a view about the availability and weight of a certain sort of

5. According to some recent commentators, empirical research shows pretty conclusively that when it comes to prudential decision-​making, we make predictable errors that could at least sometimes be avoided through benevolent intervention. This view is now associated especially with the work of Thaler and Sunstein (2008: chap. 1).

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[ 4 ]  In Our Best Interest

reason or rationale. On my view, paternalistic rationales count in favor of intervention—​that is, it is a valid reason in favor of intervening in someone’s affairs that doing so would advance some interest of hers. I here construe “intervention” broadly to include any way in which one might involve oneself in another person’s decisions, behavior, or sphere of agency.6 Of course, intervention that advances some of a person’s interests might frustrate or thwart other interests of hers. In such cases, we need a way to determine which interest (or set of interests) is weightier. If the interests that would be served by intervention are weightier or more important than the interests (of the same person) that would be thwarted by intervention, then intervention advances this person’s interests on balance or, as I shall say, is in her best interest.7 As I  will understand it, the claim that intervention is in a person’s best interest implies that there is no alternative that would advance this person’s interests to a greater extent, on balance, without generating additional costs for others. It would not be in your best interest for me to violently push you out of the way of some oncoming danger if I could just as easily give you a timely warning. Subject to one qualification to be noted in section 1.2, the pro-​paternalist view holds that, setting aside any possible effects on third parties, intervention in a person’s affairs is justified if it is in her best interest. For the sake of brevity, call the person (or people) likely to gain from intervention in her (or their) affairs the target (or targets) of paternalism. According to pro-​paternalism, when intervention is in a target’s best interest, it does not violate her rights or give her a moral complaint sufficient to render it impermissible. Of course, intervention may have adverse effects on those other than the target. When it does, we must compare the target’s interests with the interests of others. There are, of course, different ways of assessing the relative weight of interests and competing views about what interests people have. The important point is that one has not identified any distinctive problem for paternalism if one objects to some intervention on the grounds that it is not in anyone’s best interest, or on the grounds that, although it is in the target’s best interest, it is contrary to the best interests of others. After all, many sorts of acts and policies—​and not merely those thought to raise concerns about paternalism—​can be objectionable because 6. Shiffrin has claimed that normative concerns about paternalism might arise even in cases in which one aims to avoid an effect on a person’s “sphere of legitimate agency” (2000: 213, 218). This is because she seems to think that certain omissions can be objectionably paternalistic. To leave room for this position, we can simply stipulate that, despite the unfortunate terminology, omissions can count as a form of intervention. 7.  Compare Feinberg:  “In general, X will not be in a person’s interest all told if it advances his interest in Y at unacceptable cost to his interest in Z” (1984: 40).

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they impede or frustrate individual interests. Moreover, it is widely agreed, even among anti-​paternalists, that paternalism is fundamentally concerned with the advancement of individual interests.8 When intervention is not in a person’s best interest, then, it would appear that even those sympathetic to paternalism have good reason to oppose it. Though pro-​ paternalism is obviously controversial, it wears whatever appeal it has on its sleeve. Ordinarily, the fact that some act or policy would advance a person’s interests would appear to provide a reason in its favor. We often applaud people who go out of their way to help others. And we generally approve of social policies that promise to save lives, or enhance public safety, or make people more financially secure, and so forth. For instance, if a reduction in highway speed limits would result in fewer traffic fatalities, then this surely provides some reason in favor of lower speed limits. Whether it provides a sufficiently strong reason depends on how the interests that would be served by lower speed limits are to be weighed against the interests that would be thwarted by lower speed limits. Likewise, the fact that air bags and other mandatory safety equipment save lives would surely appear to provide some reason in favor of the (arguably paternalistic) policy requiring that new cars have air bags.9 Most of us accept this policy because we believe that this increase in safety outweighs any associated costs. According to the view I shall defend, things are no different in those contexts more commonly thought to raise concerns about paternalism. It should be clear that the pro-​paternalist view does not imply that the government is justified in banning or otherwise restricting all imprudent

8.  Thus, it is commonly claimed that paternalistic reasons or motivations must refer to the target’s “welfare, good, happiness, needs, interests, or values” (Dworkin [1971: 20]; see also Quong [2011: 80]). It seems to me that interests are the broadest item on this list: presumably a person has interests in the satisfaction of her needs and the promotion of her well-​being or happiness. And when we have reason to advance a person’s values for her sake, the realization of her values would likewise appear to be among her interests. To be sure, Shiffrin (2000:  215–​16) claims that one person, A, may treat another person, B, paternalistically even if she acts solely out of concern for some third party, C, provided that questions involving the treatment of C fall within B’s legitimate sphere of agency. Nonetheless, there is good reason to distinguish between two questions. The first concerns the conditions under which intervention might treat someone impermissibly even though it serves (and is intended to serve) her best interest; the second concerns the conditions under which intervention might treat someone impermissibly even though it serves (and is intended to serve) some third party’s best interest. For related discussion of Shiffrin’s account of paternalism, see Dworkin (2013: 36–​38). 9. For the view that many such auto safety regulations are at least arguably paternalistic, see Husak (2003: 407).

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[ 6 ]  In Our Best Interest

behavior.10 Even if a particular restriction would deter or reduce some particular kind of imprudent behavior, it might frustrate other important interests and be wrong for this reason. Notice that a parallel point applies to the widely accepted “harm-​to-​others” principle. According to this principle, it is a valid reason in favor of intervention that it is (probably) necessary to prevent a person from inflicting nonconsensual harm on others.11 The harm-​to-​others principle does not imply, however, that the government is justified in banning all behavior that could potentially harm others, or that it is justified in preventing such behavior through any means necessary, no matter the cost.12 There may be some cases in which there is no feasible way to prevent people from harming others. And there may be some cases in which such harm could be prevented, but only through means that would frustrate even more (or more important) interests. In these cases, even proponents of the harm-​to-​others principle should oppose intervention. But that is a problem for the acts and policies in question, not the harm-​to-​ others principle. Something similar is true for pro-​paternalism: although the fact that some policy would deter imprudent behavior is always a valid reason in favor of intervention, it may not always be a decisive reason. In this regard, consider the common complaint that restrictive anti-​drug laws, such as the US “war on drugs,” do more harm than good. If this is true, then even pro-​paternalists ought to oppose these laws. Indeed, though I cannot fully defend this view here, laws with respect to most currently illegal drugs, such as cocaine and heroin, seem unjustifiably stringent. This is because such laws impose disproportionately severe punishments, including long jail sentences, on those who use illegal drugs and on those who

10. This claim is sometimes made by critics of paternalism. Thus, Harris claims that “[t]‌he legitimization of physical paternalism could conceivably justify the imposition of a Spartan-​like regimen requiring rigorous physical exercise and abstention from smoking, drinking, and hazardous pastimes” (1967: 585n19). This claim is cited with approval by Beauchamp (1977:  78). If the claim here is that a pro-​paternalist view “could conceivably” justify these impositions given some possible set of empirical facts, then it may be true but not all that interesting. If, on the other hand, the claim is that a pro-​paternalist view would likely justify the prohibition of all hazardous pastimes given the facts as they are, then much more argument would be required. In particular, it would at the very least need to be shown that such prohibitions would be effective and would not frustrate interests more important than those they would advance. 11. Feinberg (1984) offers an extended discussion of this principle and some of the questions it raises. Although we may disagree about precisely how the principle is to be articulated, none of these details affects the following discussion. 12. To take just one example, the heavy consumption of alcohol often results in harm to others, but few people take this fact all by itself to show that the harm-​to-​others principle would justify a “ban on drinking.”

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sell even small quantities of these drugs.13 But one can accept this judgment without thereby abandoning pro-​paternalism, just as the one can accept the judgment that it is wrong to imprison people for speeding or shoplifting without thereby abandoning the harm-​to-​others principle. Further, the claim that our current drug policies are unjustifiably stringent does not show that all restrictions on recreational drugs are unjustified, much less that all intervention in the sphere of self-​regarding conduct is unjustified. Indeed, it seems to me that some drug policies can almost certainly be justified on paternalistic grounds. I will largely postpone detailed discussion of particular policy issues until the concluding c­ hapter 9, where I discuss two widely used, and legal, drugs: tobacco and alcohol. There, I suggest that an ideal tobacco policy would probably move us gradually toward a prohibition on the manufacture and sale of cigarettes. An ideal alcohol policy should avoid imposing overly severe burdens on those who use alcohol prudently and responsibly, but it should also aim to deter heavy “problem drinking,” perhaps through measures that increase the price of alcohol. Of course, acts and social policies may be supported by a host of different rationales, some of which are paternalistic and some of which are not. We might thus distinguish between “mixed” and “unmixed” rationales.14 An unmixed paternalistic rationale appeals exclusively to the target’s interests in order to justify intervention on her behalf. A  mixed rationale appeals partly to the target’s interests and partly to other considerations (for instance, the interests of others). As I  shall understand it, if a rationale is truly mixed, each of these components must be thought necessary to justify the intervention. (In some cases there may be a sufficient paternalistic rationale for intervention and a sufficient nonpaternalistic rationale for intervention. But since these rationales would be individually sufficient, nothing is ultimately to be gained by conjoining them.) At least on the face of it, there is a strong case that one should take the same position with respect to the paternalistic component of a mixed rationale that one takes toward unmixed paternalistic rationales.15 For instance, if a rationale that appeals to the target’s interests fails to provide any valid reason in favor of intervention when this rationale is considered in isolation, presumably it would also fail to provide a valid reason when considered alongside other, nonpaternalistic, rationales. For the sake of simplicity, however,

13.  De Marneffe (2003:  35) makes a similar point in defending paternalistic laws designed to curb heroin abuse. 14.  See, for instance, Grill (2018:  48–​49), Le Grand and New (2015:  37), Feinberg (1986: 8), and Kleinig (1983: 12). 15. Grill (2007: 445–​46) makes a similar point.

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[ 8 ]  In Our Best Interest

I will mainly focus on unmixed paternalistic rationales. Of course, if I am correct that such rationales are valid, then they can enter in as components of mixed rationales, as well.

1.2 INTERESTS: THREE ISSUES

The pro-​paternalist view as described so far maintains, first, that sound paternalistic rationales provide valid reasons in favor of intervention and, second, that when intervention would be in the target’s best interest, it is permissible unless it is ruled out in virtue of its effects on others. Consider now three preliminary questions about interests. First, what interests do people have?16 Second, do we have good reason to advance or satisfy all interests, or only some? Third, how should the competing interests of different people be weighed against each other? I aim to show in this section that pro-​paternalism does not presuppose any controversial answers to such questions. The second, however, may suggest a slight modification to the view as I have characterized it.

1.2.1 What Interests Do People Have?

To say that a person has an interest in getting, having, or avoiding something is to say that this would be good for her or that it is something she has reason to want for herself. This generic understanding of interests takes no position on what ultimately determines a person’s well-​being or on what people have reason to want for themselves. Consider some possibilities. According to one common view, interests are ultimately reducible to well-​being, which can in turn be usefully understood in terms of a theory familiar from the philosophical literature.17 According to hedonism, for instance, pleasure and pain are the sole determinants of well-​being. If our only (noninstrumental) interests are in experiencing pleasure and avoiding pain, then intervention is in a person’s best interest just in case it would increase the net balance of pleasure minus pain over the course of her life.18 16. Though I will continue to focus on the interests of human beings, our dealings with nonhuman animals may sometimes raise concerns about paternalism. Most anti-​ paternalists would likely accept benevolent intervention on behalf of animals, however. For relevant discussion, see T. Regan (1983: 103–​109). 17.  The taxonomy that follows is familiar from the seminal discussion in Parfit (1984: 493–​502). 18. This claim may be somewhat simplistic. For instance, a hedonist might think that the shape of a life matters: perhaps a life that starts out well and then deteriorates is

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Of course, many philosophers reject hedonism. Some argue instead that a person’s well-​being is determined solely by the extent to which her desires are fulfilled (or, perhaps, by the extent to which some subset of her desires are fulfilled, or by the extent to which her hypothetical informed desires are fulfilled). If our only interests are in the fulfillment of our (actual or idealized) desires, then intervention is in a person’s best interest if, and only if, it leads to a greater overall level of desire-​fulfillment for her, however this is ultimately to be measured. To be sure, when paternalistic intervention is contrary to the target’s will, it might frustrate her current desire to be left alone. But it may compensate for this by fulfilling or enabling the fulfillment of other desires, including those she will have in the future.19 Hedonism and desire-​fulfillment theories are often considered to represent “subjective” accounts of well-​being. They are typically contrasted with “objective list” accounts, which hold that various substantive goods—​perhaps including achievement, friendship, virtue, and autonomy—​contribute to well-​being in ways that are not reducible to their contribution to pleasure or desire-​fulfillment.20 On this sort of view, there is no single, ultimate determinant of well-​being. In order to show that intervention is in a person’s best interest, one would need to argue that it promotes some component of well-​ being without posing a sufficiently great threat to other such components. Of course, the three views of well-​being discussed so far are not exhaustive, and they could be developed or modified in various ways. One might, for instance, accept a view according to which a person’s well-​being is determined by the extent to which she takes pleasure in things that are objectively worth taking pleasure in.21 I have been considering the view that our interests are reducible to well-​ being, as understood in terms of a theory familiar from the philosophical literature. Perhaps, however, this view is mistaken. Some philosophers would argue that “well-​being is not a well-​defined notion that moral thinking can

not as good as a life that starts out badly and then improves, even if both contain the same amount of pleasure (for discussion, see Bradley [2015: 72–​76]). A similar point might hold for the alternative views to be discussed, but I  will set aside these (and many other) complications. 19. Several reasons for thinking that paternalistic intervention sometimes promotes desire-​fulfillment are discussed by Zamir (1998: 240–​46). 20. For an overview of some of the goods that may appear on such a list, see Bradley (2015:  chap.  5). Note also that while hedonism and desire-​fulfillment theories are often considered to be “subjective,” there may be alternative schemes of theory classification on which hedonism resembles objective list theory in crucial respects (see Fletcher [2013: 206–​14]). 21. Feldman (2004: 117–​22).

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[ 10 ]  In Our Best Interest

simply take over from the outlook of a single rational individual.”22 People may have interests in the sense that they have objective reasons to want certain things for themselves, even if these reasons are not usefully thought of as reasons to promote or advance their own well-​being. Perhaps one has reason to want to achieve success in certain worthwhile projects that one has adopted—​for instance, to be a successful parent or writer—​even apart from the contribution that such success would make to anything appropriately regarded as well-​being. Likewise, one might have an interest in being free from arbitrary forms of discrimination, in the sense that this is something one has objective reason to want for one’s own sake, even apart from any other welfare-​related benefits to which nondiscrimination would be instrumental.23 If we understand interests along these lines—​as those things that one has objective reason to want for oneself, for one’s own sake—​then in order to determine whether intervention would be in a person’s best interest, we would need to compare the weight of the reasons she has to favor her own situation if the intervention is undertaken with the weight of the reasons she has to favor her own situation if the intervention is not undertaken.24 If the former reasons are stronger than the latter reasons, then intervention would be in her best interest in the relevant sense, and pro-​paternalism would imply that it is justified (unless it wrongs others). This way of understanding interests requires that we are able to distinguish those things that a person has reason to want for her own sake from those things that a person has reason to want on some other basis—​for instance, on the basis that these things would simply “make the world a better place.” But this distinction often seems clear enough. There is a difference, for instance, between the claim that people have reason to want to be able to engage with their natural environment in certain ways (a personal interest) and the claim, advanced by some environmentalists, that pristine nature is itself intrinsically valuable (even if it is not valuable for anyone). Of course, it might be that the only things one has reason to want for oneself are

22. Scanlon (1998: 217). 23. For this example, see Scanlon (1998: 216). 24. This sort of approach has been defended by Peter de Marneffe (2013a: esp. 58–​59; 2013b: esp. 32–​33; 2010: esp. 113; 2005: esp. 159; 2003: 35). To be sure, de Marneffe does defend what he refers to as a “principle of antipaternalism” (2010: 67). It does not appear that his view is anti-​paternalist in the sense described in section 1.3, however. Indeed, the pro-​paternalist view I  defend might be used to formulate a principle of anti-​paternalism, since it allows that intervention in a person’s affairs might treat her impermissibly when it is not in her best interest (and cannot be justified by appealing to the interests of others). If one had a complete account of interests and their weight, one could formulate such a principle more precisely.

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those things that contribute to well-​being as traditionally understood, in which case we would be led back to the possibilities already canvassed. I will take no position on which particular account of interests is most plausible.25 If I were to come down in favor of any such account, I would only invite the objection that my position is mistaken because it rests on a mistaken conception of interests. For instance, if I  were to argue that intervention is in a person’s best interest only if it increases her overall level of desire-​fulfillment, some critics would surely respond by rehearsing the familiar objections to desire-​based theories of well-​being. Conversely, if I were to presuppose a more objective view of interests, I would only invite the objection that such a view ought to be rejected in favor of a subjective account. Even if such objections were successful, they would not refute the pro-​paternalist claim that, setting aside any effects on third parties, intervention is justified when it serves the target’s best interest. Instead, such objections would only challenge a particular conception of interests, one that the pro-​paternalist need not accept. Pro-​paternalism should be combined with the best account of interests, whatever that turns out to be. Even in the absence of a full-​blown theory of interests, however, we often do judge that certain things would (or would not) be in someone’s best interest. Parents, for instance, typically want the best for their children (including their grown children): we want our children to grow up to have (and once grown up, to have) relationships and careers that they enjoy, to be independent and self-​directing, to have a sense of their own worth, and so forth. And it seems that we want these things for the sake of our children, and not merely because, say, our children’s success will benefit others. In thinking about whether intervention is in a target’s best interest, we might consider whether someone would have sufficient reason to support or endorse the intervention, insofar as one cares about the target for the target’s own sake.26 Of course, we might disagree, in particular cases, about how 25.  I  diverge here from several recent defenders of paternalism, who come down squarely in favor of more subjective accounts, partly out of a concern that more objective accounts would support objectionably illiberal or “perfectionist” forms of intervention. See Le Grand and New (2015: 27–​33, 101–​104), Sunstein (2014: 63–​71), and especially Conly (2013: 102–​12). 26. For relevant discussion, see Darwall (2002). Indeed, the fact that a (good) parent cares about her child for the child’s own sake suggests one way in which “paternalism” may be an apt label for the view I am discussing. Consider, for instance, the “crib test” described by Feldman (2004: 10): to elucidate the notion of well-​being, Feldman has us imagine that we are lovingly looking into the crib at our newborn child, considering the various ways in which her life might go, and hoping that it goes well. Though ordinarily this hope will reveal something about what we take to be in the child’s interests, the crib test is not perfect: consider a religious fanatic who, gazing into the crib, eagerly anticipates the day that her child will become a martyr.

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[ 12 ]  In Our Best Interest

this question is to be answered, just as those who agree that parents should do what is best for their children may sometimes disagree about what that involves. Any plausible view, however, will imply that people have interests in certain goods, such as health, and thus there may be considerable convergence, in practice, among various accounts of interests. Let us now consider two critical concerns about my discussion of interests. First, a critic might ask how we can usefully debate the merits of pro-​paternalism unless it is combined with some particular account of interests. In defense of this point, the critic might argue that the precise implications of pro-​paternalism may vary depending on which account proves to be most defensible. There may be some acts or policies that would be in their targets’ best interests if hedonism is true, but not if (say) a desire-​based theory is true. How can we assess the pro-​paternalist position unless we have in mind some particular view about the conditions under which intervention would be in a person’s best interest? The answer is that we ought to distinguish between two different questions. First: Under what conditions is intervention in a person’s affairs in that person’s best interest? Second: Under what conditions does intervention that is in a person’s best interest constitute or involve a wrong against that very person? Pro-​paternalism addresses the second question, not the first. To show that there is something distinctively objectionable about paternalism, one would need to show that even if intervention is in the target’s best interest, it might nonetheless treat her impermissibly—​ for instance, because it is insulting or disrespectful, or because it imposes a conception of the good on her, or because it violates her right to control her own body. And indeed, these are the sorts of objections that I  focus on in the following chapters. To be sure, if intervention could never be expected serve the target’s best interest, then pro-​paternalism would be of little practical significance even if it is true. As I shall argue in c­ hapter 2, however, such pessimism about our ability to discern and promote others’ interests is unwarranted. Turning now to a second possible concern, a critic may point out that I have left open the possibility that freedom or autonomy may be intrinsically good for a person, as on some objective accounts of well-​being.27 Yet freedom and autonomy are among the values with which paternalism is

27. For a view on which autonomy is valuable in this way, see Kazez (2007: 65–​68). Feinberg claims that people have interests in liberty: “Any interference . . . with a voluntary action . . . is an invasion of a person’s interest in liberty, and is thus harmful to him to that extent” (1984: 78, emphasis in original). Notice that Feinberg’s claim would also be true of interference that is designed to prevent harm to others.

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[ 13 ]

commonly thought to be in tension. Shouldn’t pro-​paternalism rule out the possibility that people might have (more than merely instrumental) interests in freedom or autonomy? I do not believe so. Partly this is for the reasons already mentioned. Even anti-​paternalists agree that paternalism is fundamentally concerned with the promotion of individual interests. Pro-​paternalism should thus be combined with the most defensible conception of interests, whatever that turns out to be. It would be uncharitable if critics of pro-​paternalism were to saddle it with a conception of interests that even they regard as indefensible. Thus, if people have noninstrumental interests in, say, achieving success in worthwhile projects or acquiring certain sorts of knowledge, then these interests should be considered alongside others. Likewise, if people have noninstrumental interests in having certain sorts of freedom or autonomy, then the pro-​paternalist should take account of these interests as well. Indeed, as I  shall argue, the claim that people have interests in autonomy may sometimes support intervention in the self-​regarding sphere, since such intervention might serve to promote or safeguard autonomy.28 Of course, there are different accounts of autonomy and different ways in which values such as autonomy might be thought to oppose paternalism. Pro-​paternalists must reject some claims about autonomy. In particular, while pro-​paternalists need not deny that people have noninstrumental interests in autonomy, they must reject the claim that intervention can wrongly violate or disrespect a person’s autonomy even when it is in her best interest. A final issue merits brief discussion. The consequences of acts and policies can rarely be predicted with certainty. In some cases, we may be unsure whether intervention will have the desired effect. It would appear, however, that a person has at least some interest in getting or having something so long as it is likely to benefit her. For instance, if you generously buy me an expensive drug that is likely, but not certain, to cure some illness I have, it seems that you advance an interest of mine even if, as luck would have it, the drug is ineffective. After you provide me with the drug, I am, in at least one respect, better off than I  was before. At any rate, I  shall assume that interests can be advanced by intervention that is merely likely to provide a benefit. Some may disagree. They may argue that in order to determine whether intervention advances (some of) a person’s interests, we should consider only its actual consequences. A full resolution of this 28. In a similar vein, Dworkin argues that paternalism is most likely to be justified “in those instances in which it preserves and enhances for individuals their ability to rationally consider and carry out their own decisions” (1971: 33).

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[ 14 ]  In Our Best Interest

disagreement would take us too far afield, into broader questions about how moral theories ought to deal with our epistemic limitations. For present purposes, two points will have to suffice. First, the fact that some intervention poses a risk of harm to the target provides some reason against it, as pro-​paternalists can surely recognize. And if a well-​intentioned paternalistic agent intervenes in a way that causes harm, even though such harm was unlikely, he might now be responsible for assisting the harmed party. Second, at the level of action guidance, when we must decide what to do, it is unlikely to make much difference whether we hold that the permissibility of intervention depends on its actual as opposed to its expected consequences. Either view would presumably advise us to intervene when doing so is sufficiently likely to advance some of the target’s interests, without imposing overly severe burdens on her (or others).

1.2.2 Admissible Interests

According to pro-​paternalism as I have characterized it, the fact that intervention would serve some of a person’s interests always provides a valid reason in its favor. There is a potential complication for this claim, however. It is at least possible that people have some interests that others have no reason to advance or fulfill, even in contexts that do not raise any concerns about paternalism. If there are some interests of this sort, then they do not provide valid reasons in favor of intervention. But this has to do with the nature of the interests in question, not paternalism. Consider a toy example. Suppose, if only for the sake of argument, that we ought to accept a version of hedonism on which all pleasure, of any sort whatsoever, contributes to one’s well-​being. Suppose further that Betty usually experiences sadistic pleasure when she views photographs or videos depicting the real-​life suffering of her enemies. Imagine that you happen to have video footage of one of Betty’s enemies being ruthlessly attacked by a shark and that Betty asks to see this video.29 Under these circumstances, showing Betty the video may advance her interest in experiencing sadistic pleasure (assuming, again, that she has such an interest). Still, one might argue that there is no reason to show Betty the video, since sadistic pleasure is by its very nature morally noxious and thus not the sort of thing that one

29. To eliminate moral concerns about wrongs done to Betty’s enemy, imagine that you were able to obtain the video without violating the enemy’s privacy—​perhaps it was taken at a public beach—​and that there is nothing you or anyone else could have done to assist him.

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[ 15 ]

should aim to provide to others. If this is so, then a similar point would apply to a paternalistic variant on our case, in which you can (somehow) bring Betty sadistic pleasure by treating her in some way that she opposes. Likewise, to take another example, one might argue that even if people have interests in the fulfillment of their (informed) desires, a person’s desire to, say, oppress or dominate others should have no positive weight in our deliberations about how to treat her. To deal with this sort of possibility, it will be useful to introduce some terminology. I  will say that an interest is generally inadmissible if it fails to provide valid reasons in favor of acts and policies that do not raise moral concerns about paternalism—​for instance, acts and policies that are undertaken with the consent, or at the request, of those toward whom they are directed. By contrast, an interest is generally admissible if it generally provides valid reasons in favor of such acts and policies. If Betty has an interest in experiencing sadistic pleasure, and if this interest provides no reason to show her the video of her enemy’s suffering even if she requests to see it, then Betty’s interest in experiencing the relevant pleasure is inadmissible. Though this sort of case may seem rather fanciful, others are relevant to our main concern. Critics sometimes object that pro-​paternalism would permit the government to promote contentious or “perfectionist” values. For instance, some philosophers, including some who are generally sympathetic to paternalism, are especially wary of moral paternalistic rationales.30 Moral paternalistic rationales appeal to the claim that intervention in a person’s behavior would be for her “moral good,” or that it would satisfy some interest she has in developing virtue or responding appropriately to certain moral values.31 (Moral paternalistic rationales can thus be distinguished from simple moralistic rationales, which purport to justify interference on the grounds that the restricted behavior is morally wrong or otherwise undesirable, independent of its relation to anyone’s interests.32)

30.  For views that would support a range of paternalistic measures while condemning moral paternalism, see Le Grand and New (2015:  30–​32, 35–​36) and Conly (2013: 103–​105). 31. For discussion, see de Marneffe (2018), Dworkin (2005), Scoccia (2000: 53), and Feinberg (1988: 16–​17). 32.  The contrast between paternalism and moralism is clearly, and influentially, drawn by Hart (1963:  30–​34). The distinction between paternalism and moralism appears to be challenged by Groarke, who holds that “[p]‌aternalism invokes some substantive idea of the good and is, in some inescapable sense, a form of legal moralism” (2002: 221). Even if paternalism does invoke a substantive idea of the good—​and, as I shall argue in c­ hapter 4, that claim needs to be made more precise—​rationales that appeal to the target’s interests can nonetheless be distinguished from rationales that

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[ 16 ]  In Our Best Interest

Some would argue that the government should not be in the business of, say, promoting controversial ideals of virtue, even if individuals do have interests in becoming virtuous. If the point, however, is that such interests do not provide valid reasons in favor of any government action—​including, for instance, those undertaken with the consent, or at the request, of any affected parties—​then the interests in question are generally inadmissible (with respect to government action, at least). As I  shall further argue in ­chapter 4, if some interests are generally inadmissible in this way, then it should hardly be surprising if they do not provide valid grounds in favor of policies that seem to raise concerns about paternalism. I am thus inclined to qualify the pro-​paternalist view as follows: the fact that intervention in a person’s affairs would advance an admissible interest of hers is always a valid reason in its favor. And when intervention is in a person’s best interest, in the sense that it would advance her admissible interests on balance, then it is justified unless it mistreats others. For the sake of brevity, then, I  will generally use “interests” to refer only to admissible interests, except where otherwise indicated. Of course, for all that I have said, it may be that all interests are admissible. My point is simply that in order to show that there is something distinctively objectionable about paternalism, one would need to show that interests that generally provide good reasons in favor of acts and policies are nonetheless incapable of justifying certain types of intervention in a person’s affairs (namely, those judged to be wrongly paternalistic), even when such intervention would not frustrate any of that person’s comparably important interests.

1.2.3 Weighing the Interests of Different People

Let us turn now to a third issue. Even if intervention in a person’s affairs would be in her best interest, it might be contrary to the best interests of others. How should we adjudicate among the competing interests of different people? There are a number of possible answers to this question. A first is essentially utilitarian and holds that costs and benefits should simply be aggregated, with each person’s interests counting equally. (Though I will continue to speak of costs and benefits, I  obviously do not construe them in purely economic terms.) One might then hold that the act or policy is justified so long as its net benefit exceeds the net benefit of any alternative.

appeal to the bare fact that certain acts are immoral or “constitute or cause” other “free-​floating” evils (Feinberg [1988: xx]).

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[ 17 ]

On a prioritarian view, in contrast, the interests of the worse off should be given some priority.33 The implications of this view might differ from the implications of a purely utilitarian view. Suppose, for instance, that a certain policy would be in the best interests of a minority but contrary to the best interests of the majority. Suppose, however, that those in the minority tend to be among the worst off. Under these circumstances, a view that gives some priority to the worse off may support a greater degree of intervention than a straightforward utilitarian weighting. Indeed, if the imprudent are disproportionately represented among the worst off, as may well be the case, then the prioritarian view may generally be more tolerant of paternalistic intervention than the utilitarian view.34 There are obviously other alternatives to utilitarian aggregation. One might argue that a cost or harm to one person can be justified only if it is necessary to prevent a greater or roughly comparable cost or harm to another. Or one might argue that a policy that is contrary to someone’s best interest can sometimes be justified by aggregating the lesser interests of others, but only if each of these lesser interests is sufficiently important relative to the weightiest interest that would be thwarted.35 Just as pro-​paternalists may sometimes disagree about what is in a person’s best interest, pro-​paternalists may sometimes also disagree about how to adjudicate among the competing interests of different people. For this reason, I will again take no stand on how this latter issue is to be resolved. Distinguishing among the various views just described may nonetheless help to forestall a possible objection. It is sometimes claimed that even if a putatively paternalistic policy is in the best interests of some people, it is likely to be contrary to the best interests of others.36 Even when this is so, however, it would not necessarily constitute a decisive objection to intervention. For intervention may still be justified if the interests it 33. For relevant discussion of this view, see Parfit (1997). 34. On this point, see Arneson (1989). 35. This sort of view may appeal to the notion of aggregative “relevance” discussed by Scanlon:  “If one harm, though not as serious as another, is nonetheless serious enough to be morally ‘relevant’ to it, then it is appropriate, in deciding whether to prevent more serious harms at the cost of not being able to prevent a greater number of less serious ones, to take into account the number of harms involved on each side” (1998: 239). In the debate over paternalism, a somewhat similar view is reflected in de Marneffe’s “burdens principle” (2010: 113–​14; 2005: 159; 2003: 35). 36.  Consider Mill’s remark that “[t]‌ he interference of society to overrule [the individual’s] judgement and purposes in what only regards himself, must be grounded on general presumptions” (1859:  IV.4, 277). More recently, Quong has argued that “many examples of state-​legislated paternalism  .  .  .  may not be justified since such state policies do not assess individual cases, but rather are blanket policies that apply to everyone” (2011: 104).

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[ 18 ]  In Our Best Interest

advances are weightier or more important than the interests it frustrates, by whatever criteria ought to be used to assess the weight or importance of interests. Of course, pro-​paternalism would be of little practical significance if it were to turn out that the interests impeded or thwarted by intervention are always weightier than the interests advanced by intervention. But in the absence of further argument, I see no reason to think that this is true. One final point. Perhaps intervention in a person’s self-​ regarding choices can sometimes be wrong not because it thwarts sufficiently important personal interests but, rather, because it would prevent or impede the realization of certain impersonal values—​values that are not tied to the well-​being or interests of anyone.37 Such cases are perhaps unusual, but consider the following. Imagine that several people have recently sustained severe injuries while hiking in a remote section of a national park. The government plans to build a new road into this area so that rescue crews can more quickly reach any injured hikers. The local hiking group, however, is unanimously opposed to this plan, perhaps because its members prize an ideal of rugged self-​reliance. The government’s plan might be rejected not (only) on the grounds that it is paternalistic but, rather (or also), on the grounds that it would detract from the beauty of a pristine area and that natural beauty, as distinct from anyone’s experience of it, is intrinsically valuable. This sort of environmentalist objection, whatever its merits, does not have much to do with paternalism; it does not show that the policy in question would wrong the hikers who oppose it. When I claim that an otherwise justified intervention might be wrong because of its harmful effects on third parties, I thus (stipulatively) include any effects on the realization of impersonal values among its effects on others.38

1.3 ANTI-​P ATERNALISM

Some people may have misgivings about paternalism only in the sense that they believe that some acts and policies that are commonly classified 37. On the notion of an impersonal value, see Scanlon (1998: 218–​23). 38.  Earlier, I  noted that people may have noninstrumental interests in autonomy. At least some philosophers, however, may regard autonomy as impersonally valuable (see Bou-​Habib [2006: 259–​61]). This view represents a further way in which one could defend the value of autonomy without rejecting pro-​paternalism. My own view, which I cannot defend here, is that although people may have noninstrumental interests in autonomy, autonomy is not impersonally valuable in the way just suggested. Notice, however, that if it were, it may speak against some liberty-​limiting acts and policies but in favor of others (for instance, those that would promote or protect autonomy). I am grateful to Jason Raibley for discussion of this issue.

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[ 19 ]

as “paternalistic”—​such as the war on drugs, for instance—​are not in anyone’s best interest, or impose unjustifiably severe harms on some people, or do more harm than good. According to the account I have given, however, anti-​paternalists are committed to a deeper claim: they hold that intervention might be impermissible even if it serves the target’s best interest without wronging any third parties. Nonetheless, there are at least three potentially important differences among anti-​paternalist views. In particular, anti-​paternalist views can be distinguished along the following overlapping dimensions: the range of behaviors to which they apply, the way in which they distinguish among possible targets of paternalism, and their strength. Consider each dimension in order. All anti-​paternalists agree that we can at least sometimes wrong people by coercing them or limiting their liberty, even when doing so serves their best interests. But they disagree about whether other forms of putatively paternalistic behavior are even presumptively wrong. Consider, for instance, a paternalistic omission: suppose that I refuse to provide you with requested assistance because I (correctly) believe that you need to become more self-​reliant. Some anti-​paternalists would argue that my behavior is objectionable, perhaps because it manifests an attitude of disrespect toward you, while others would argue that my behavior is wholly unobjectionable because I am under no obligation to assist you.39 Anti-​paternalists likewise disagree about the moral status of paternalistic “nudges,” or attempts to improve prudential decision-​making by adjusting the way in which options are structured and presented. To take a standard example, suppose that a cafeteria owner attempts to encourage healthier eating by displaying vegetables more prominently than cake in the buffet line.40 Some anti-​paternalists would argue that this sort of behavior is at least somewhat objectionable, perhaps because it is manipulative, while others would claim that it is morally innocuous. Turn now to the second distinction among anti-​paternalist views: the way in which they distinguish among possible targets of paternalism. Anti-​paternalist principles, including Mill’s, are typically “meant to apply only to human beings in the maturity of their faculties.”41 Virtually all anti-​paternalists would hold that it is easier to justify intervention on behalf of children than it is to justify intervention on behalf of generally

39.  For the view that omissions can be objectionably paternalistic, see Shiffrin (2000: 213). 40. For this example, see Thaler and Sunstein (2008: 1–​3) and Sunstein and Thaler (2003: 1164–​65). 41. Mill (1859: I.10, 224).

02

[ 20 ]  In Our Best Interest

competent adults. More broadly, most anti-​paternalists would hold that it is easier to justify “soft” paternalism than it is to justify “hard” paternalism. Soft paternalism involves intervention on behalf of people who are ill-​informed, impaired, or otherwise incapable of voluntary choice. Hard paternalism, by contrast, involves intervention on behalf of adequately informed and unimpaired decision-​makers. As we shall see in ­chapters 6 and 7, however, anti-​paternalists disagree about how to interpret the relevant notion of impairment and thus how to distinguish soft from hard paternalism. Finally, anti-​paternalist views differ in their strength. An absolutist anti-​ paternalist view holds that paternalistic rationales carry no weight at all, so that intervention can never be justified on the grounds that it is in the target’s best interest.42 By contrast, a moderate anti-​paternalist view holds that paternalistic rationales carry at least some weight and can thus sometimes (perhaps only rarely) serve to justify intervention. Nonetheless, the moderate anti-​paternalist will claim that intervention in a person’s self-​ regarding choices at least sometimes treats her impermissibly, even if it is in her best interest.43 Moderate anti-​paternalist views obviously come in weaker and stronger forms. A  very weak anti-​paternalist view may differ little, in practice, from pro-​paternalism. In fact, however, most anti-​ paternalists accept a view that is either absolutist or toward the strong end of the spectrum, at least when we confine our attention to coercive or liberty-​limiting intervention. The various distinctions just drawn obviously intersect. Thus, an anti-​ paternalist may be absolutist with respect to coercion targeted toward competent adults but moderate with respect to, say, paternalistic nudging targeted toward competent adults. An anti-​paternalist who accepts an absolutist or strong moderate position with respect to coercion toward

42.  Feinberg (1984:  15). For further discussion (but not endorsement) of anti-​ paternalism construed along these absolutist lines, see Grill (2015a) and (2010). 43. See, for instance, Cornell (2015: 1321–​24), Tsai (2014: 81), Quong (2011: 102), and Shiffrin (2000: 220n25). One might ask whether we should instead reserve the label “anti-​paternalism” for views according to which (liberty-​limiting) intervention can never be justified on the grounds that it is in the target’s best interest. Moderate views might then be interpreted as moderate pro-​paternalist views, or simply as anti-​ anti-​paternalist views. Though I am not sure that much hinges on this terminological issue, I  prefer my terminology, for two reasons. First, the authors just cited clearly regard themselves as anti-​paternalists, insofar as they attempt to show that there is something distinctively objectionable about paternalism, even if paternalism is not always wrong, all things considered. Second, since I  am interested in defending the pro-​paternalist view characterized in section 1.1, clarity speaks in favor of classifying alternatives to this view as “anti-​paternalist.”

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competent adults may accept a weak moderate position with respect to coercion toward adolescents. And, of course, some anti-​paternalists may argue that there is nothing at all objectionable about certain forms of noncoercive intervention, such as omissions, that serve the target’s best interest.

1.4 FURTHER CLARIFICATIONS

Having now clarified both pro-​ paternalism and its anti-​ paternalist competitors, it will be useful to address a few further issues as a prelude to the arguments of the following chapters. I begin by considering some issues raised by recent attempts to define “paternalism.” I then discuss some differences between government paternalism and interpersonal paternalism and between “direct” paternalism and “indirect” paternalism.

1.4.1 What Makes an Act or Policy Paternalistic, and Does It Matter?

As Joel Feinberg observes, “ ‘paternalism’ can refer either to a practice or a theory.”44 I have attempted to define paternalism in the same way that one might attempt to define other philosophical “-​isms,” such as consequentialism or libertarianism. In particular, I  have attempted to explain and clarify the pro-​paternalist theory that I shall be defending. It may be tempting, however, to suppose that an adequate definition of paternalism must also indicate how paternalistic acts and policies differ from other sorts of acts and policies. A definition of this sort is unlikely to be of fundamental importance, however. If the moral debate over paternalism is best understood as a debate about the availability and weight of a certain rationale for intervention, then we can assess the merits of the paternalistic view even without a definition that tells us what makes an act or policy “paternalistic.”45 Consider a common definitional dispute about paternalism.46 In an influential paper, Gerald Dworkin defined paternalism as “interference with 44. Feinberg (1986: 7). I am indebted to Peter de Marneffe for discussion of this issue. 45. Husak (2003: 389) makes a similar point, though he seems to understand reasons in motivational terms, so that a paternalistic reason is a paternalistic motivation. In my view, there may be a sound justifying paternalistic reason in favor of an act or policy, even if the act or policy is not in fact paternalistically motivated. 46. The definitional literature is too voluminous to fully summarize here, but for two recent overviews see Dworkin (2013) and Garren (2006).

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[ 22 ]  In Our Best Interest

a person’s liberty of action justified by reasons referring exclusively to the welfare, good, happiness, needs, interests, or values of the person being coerced.”47 Many other proposed definitions hold that paternalistic behavior must involve, if not coercion, then at least restrictions or limitations on the target’s liberty or opportunity to choose. Call such definitions narrow.48 According to broad definitions, by contrast, a much wider range of behaviors can qualify as paternalistic. As we have seen, some hold that omissions and “nudges” can be paternalistic, even if they do not obviously limit anyone’s liberty.49 Some also claim that it can be paternalistic to offer someone incentives to engage in more prudent behavior:  imagine that I offer to pay you five dollars for each day you exercise.50 It has even been argued that rational persuasion can be paternalistic, if the agent’s attempts at persuasion show insufficient respect or deference to the target.51 How should this apparently definitional dispute be resolved? Should we opt for a broader or narrower definition of paternalism? It is not clear how to answer this question. Some ethicists appear to be attracted to broader definitions because they believe that omissions and incentives, when motivated by a desire to secure the target’s own good, are objectionable in the same way that other forms of behavior widely classified as “paternalistic” are (in their view) objectionable.52 Conversely, some are probably attracted to narrower definitions because they think that restrictions on ­liberty are at least presumptively objectionable in a way that, say, omissions and incentives are not. Whether a certain sort of omission or incentive is presumptively objectionable, however, is a substantive moral question, not a definitional matter. The fact that people disagree about how to answer

47. Dworkin (1971: 20, emphasis added). Dworkin (2017; 1983: 105–​107) has since argued that paternalism need not interfere with liberty, though he suggests that it must always interfere with autonomy. 48.  Examples of narrow definitions include those offered in Bullock (2015), Beauchamp (2009: 79–​82), de Marneffe (2006: 73–​74), Clarke (2002: 82), and Archard (1990: 36). Some have argued that paternalistic behavior can involve interference with a person’s “freedom of information,” as through deception, as well as a person’s freedom of action. See Buchanan (1978: 61–​62) and Kleinig (1983: 6–​7). Gert and Culver hold that an agent acts paternalistically toward someone only if the agent believes that his action “involves violating a moral rule . . . with regard to that person” (1976: 49). For my purposes, these definitions can be considered narrow, as well. 49.  On omissions, see Shiffrin (2000:  13), Archard (1994:  288), and VanDeVeer (1986: 22–​23). On nudges, see Thaler and Sunstein (2008: 5) and Sunstein and Thaler (2003: 1162). A broad definition is also proposed by Groll (2014a: 190). 50. Quong (2011: 75) and Scoccia (2008: 353). 51. Tsai (2014) and Dworkin (1983: 107). 52. This appears to be true of both Shiffrin (2000: esp. 212) and Tsai (2014: 81–​82).

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this question does not necessarily show that some of them are confused about the meaning of the word “paternalism.” There is a more general point worth making here. One might attempt to offer a definition of paternalism that is “normatively interesting,” in that it picks out some set of acts and policies that one regards as presumptively wrong, or that most self-​described anti-​paternalists regard as presumptively wrong.53 Since there is not unanimous agreement, even among anti-​paternalists, about which sorts of acts and policies are objectionably paternalistic or about what makes acts and policies objectionably paternalistic, a definition of this sort may be ill-​suited to serve as a neutral starting point for moral inquiry.54 Such a definition is liable to be criticized on the moral grounds that it adopts a mistaken view about what (if anything) makes paternalism presumptively objectionable. Of course, one might argue that an adequate definition should simply map all the ways in which the word “paternalism” is used in ordinary discourse. Yet a definition of this sort may not be all that useful for the purposes of moral assessment, either.55 This is largely because, as we have seen, pro-​paternalists can consistently oppose some acts and policies that are commonly called “paternalistic.” Indeed, many definitions imply that intervention may count as paternalistic even if it is not (and cannot reasonably be expected to be) in the target’s best interest; thus one critic claims that failed or “unsuccessful” paternalism is “paternalism nevertheless.”56 Yet it is obvious that no one, including the pro-​paternalist, should support pointless or “unsuccessful” intervention. Just as pro-​paternalists can consistently oppose acts and policies that are commonly called “paternalistic,” staunch anti-​paternalists may support some acts and policies that can be appropriately described as “paternalistic.” It would seem paternalistic for a professor to require his students to turn in rough drafts of their term 53. For the view that a definition of paternalism should be normatively interesting in this sense, see Beauchamp (2009: 81). For related discussion of various ways in which definitions of paternalism might be moralized, see Grill (2013). 54.  For caution about “morally charged” definitions of paternalism, see Bullock (2015:  3–​5), Coons and Weber (2013:  5–​7), VanDeVeer (1986:  16–​17), and Kleinig (1983: 4–​5). 55. As Grill observes, the “wider conceptual . . . debate [about which acts and policies are paternalistic] is peculiar because, on the one hand, it largely relies on linguistic intuitions about what cases are properly called paternalism, while, on the other hand, it seems to engage authors because they are interested in normative issues to do with antipaternalism. This is peculiar because it seems obvious that the normatively most plausible version of antipaternalism need not target the linguistically most accurate characterization of paternalism” (2015a:  55). For related discussion, see Sankowski (1985: 1–​2). 56. Clarke (2002: 83); see also Pope (2004: 697).

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papers, if he does so because he believes that they will otherwise procrastinate. But I suspect that many self-​described anti-​paternalists would find such behavior wholly unobjectionable. Luckily, the pro-​paternalist need not take a stand on which acts and policies are, and are not, “really” paternalistic.57 Whether pro-​paternalism is true depends on whether intervention that serves the target’s best interest (without wronging others) is sometimes impermissible; it does not depend on any further definition of the word “paternalism.” To be sure, I  shall sometimes distinguish contexts that seem to raise normative concerns about paternalism from those that do not, as I did in explicating the distinction between admissible and inadmissible interests in section 1.2.2. I  will also sometimes refer to various measures as “paternalistic.” In doing so, however, I will simply be guided by the judgments commonly made by those who claim that paternalism is objectionable—​for instance, the judgment that it is objectionable to limit a person’s self-​regarding ­liberty against her will, but not to provide someone with assistance when she requests it.58

1.4.2 Government and Interpersonal Paternalism

I now consider a second preliminary. The pro-​paternalist view, as I  have described it, applies to the behavior of both individuals and governments. Still, there may be morally important differences between intervention as carried out by a government (or its authorized agents) and intervention as carried out by an individual. There are some contexts in which the government is uniquely suited to intervene: the government can effectively regulate areas of life that individuals cannot. There may also be some contexts in which individuals are uniquely suited to intervene: a person’s friends and

57. Indeed, we may sometimes be unable to resolve disputes about whether a policy is “really” paternalistic without simply resorting to stipulation (Husak [2003: 389]). I am sympathetic to the claim, made by Enoch, that “ ‘paternalism’ is to a large extent a term of art, and the search for a definition for a term of art is even more futile than it is for natural-​language terms” (2016: 21). 58.  There is perhaps one further terminological complication worth noting. Paternalism is often thought to be modeled on the relationship of a parent to a child (Fotion [1979]). But the gendered terminology may suggest that it is modeled on the relationship of a father to a child. The more neutral “parentalism,” which has been used by some writers (Kultgen [1995]), may be preferable to “paternalism,” especially if the latter term has more authoritarian associations. Nonetheless, at this point the term “paternalism” has become sufficiently well entrenched that departing from it would create unnecessary confusion.

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relatives may have more knowledge of her interests, or be more motivated to help her, than the government is.59 Be this as it may, it appears that certain forms of coercion should be carried out by the government, if they are to be carried out at all. This has more to do with the nature of coercion than the nature of paternalism, however. Let me explain, by way of an analogy. While virtually everyone agrees that it is a good reason in favor of liberty-​limiting intervention that it would prevent (nonconsensual) harm to others, this is not ordinarily taken to show that just anyone may permissibly intervene in order to prevent such harm. Individuals are normally prohibited from acting as vigilantes. Though public roadways surely ought to have speed limits, private citizens are not permitted (either by law or morality) to pull over other drivers and require them to pay “fines.” Moreover, a private individual may not punish people she believes to be guilty of murder, nor may she break into someone’s house in order to confiscate goods that she believes were stolen. These points obviously do not show that harm-​to-​others rationales fail to provide good and weighty reasons in favor of intervention. Instead, such examples show only that there are certain ways of deterring or preventing people from harming others—​for instance, imposing punishments or confiscating goods—​that generally ought to be left to the state. Of course, there may be some circumstances, such as cases involving self-​or other-​ defense, in which an individual is permitted the unilateral use of coercion. But these cases are the exception. In this regard, what is true of the prevention of harm to others is also true of the prevention of harm to self. It may be wrong for an individual to coercively interfere in another person’s self-​regarding choice, even if it would not be wrong for the state to do so. For instance, even if there is a sufficiently strong paternalistic argument in favor of intervention to encourage seat belt use, we can surely object to the behavior of a private citizen who forces other drivers to stop on the roadway when they have failed to buckle up, just as we can object to the behavior of a citizen who similarly stops drivers who exceed the speed limit. Of course, there may be some circumstances in which a private citizen is permitted to coerce or forcibly restrain someone for paternalistic reasons: imagine that a person has no time to summon the authorities when he sees someone about to kill herself. But there are presumably many cases in which coercion, assuming it ought to be exercised, should be left to the government.

59. For variations on this point, see Quong (2011: 104–​105), Husak (2003: 396–​99), and Raz (1996: 122).

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This point is important. It is sometimes thought that once we have accepted paternalism in principle, there will be no moral barrier to a state of affairs in which individuals run around knocking cigarettes and fried food out of each other’s fingers. But this concern is misguided. Just as those who invoke nonpaternalistic rationales in order to justify gun-​control laws need not believe that private citizens should run around confiscating each other’s weapons, those who appeal to paternalistic rationales for coercive intervention need not believe that such interference can always be permissibly carried out by private citizens.

1.4.3 Types of Government Intervention and the Direct/​I ndirect Distinction

Finally, we should keep in mind that even when we confine our attention to coercive or liberty-​limiting measures, governments can intervene in a variety of ways. Consider various strategies that the government may use in order to deter the use of a potentially dangerous substance, such as a drug. The government might make the dangerous substance more costly to acquire by taxing it at a higher rate than other goods. In addition, the government might permit the sale of the substance subject to various other restrictions, such as restrictions on the quantity that a single consumer is allowed to purchase at one time. Perhaps most controversially, the government might discourage use of the substance through criminal sanctions. There is an important distinction to be made here between “indirect” and “direct” forms of interference.60 Suppose that two people, A and B, freely and consensually interact with each other in a way that is likely to harm only B. An indirect paternalistic measure would impose punishment (or other restriction) on A, for the sake of B. As an example, consider a policy prohibiting the sale (but not the use) of heroin. Such a policy may be unlikely to serve the interests of prospective drug sellers. But it might nonetheless be justified on the paternalistic grounds that it benefits prospective drug users by limiting their access to the drug.61 Direct paternalistic 60. See, among others, Grill (2018: 51–​52), Pope (2004: 686–​88), Feinberg (1986: 9), and Kleinig (1983: 11). What I am calling the “direct/​indirect” distinction is sometimes also referred to as the distinction between “pure” and “impure” paternalism (Dworkin [1971: 22]). 61. Thus it is commonly claimed that Prohibition in the US was paternalistic, even though it prohibited only the sale and manufacture of alcohol, not its consumption. To take another example, Goldman argues that “[l]‌icensing physicians prevents some quacks from harming other persons, but also limits these persons’ freedom of choice for their own good. Hence it is paternalistic” (1980: 61–​62).

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punitive measures, on the other hand, would impose punishment on people who behave in imprudent or self-​harmful ways. An example would be a policy prohibiting the use of heroin. Such direct punitive measures have sometimes been thought puzzling. As Douglas Husak observes, punishment—​especially severe punishment, such as imprisonment—​is unlikely to be in the best interest of the person who is punished. And if punishment is unlikely to be in the best interest of the person punished, how can direct punitive measures possibly be justified on paternalistic grounds?62 The important thing to recognize here is that even if individual acts of punishment are not typically in the best interests of those punished, a law establishing punishment—​and thus imposing a threat of punishment—​for a certain sort of imprudent behavior might be justified because it is likely to deter such behavior in the general population. To take a simple illustration, consider the policy under which motorists can be assessed small fines for failing to wear seat belts. Such a policy is likely to be justified (if it is) on the paternalistic grounds that it saves lives by encouraging people to buckle up. But this does not necessarily mean that I am benefited when a police officer writes me a ticket for failing to wear a seat belt. In a similar vein, it is at least coherent to claim, first, that those who actually are punished for drug possession do not usually benefit from such punishment and, second, that such anti-​drug laws can be justified on the paternalistic grounds that the threat of punishment deters enough people from using harmful drugs.63 (Of course, whether such laws actually are justified on this basis is a separate question.) It seems likely that indirect paternalistic punitive measures (for instance, prohibitions on the sale of dangerous drugs) will often be easier to justify than direct paternalistic punitive measures (for instance, prohibitions on the use of dangerous drugs). Given the costs of enforcing any drug prohibition, perhaps the most sensible course is to reserve criminal sanctions for

62.  This point has been made in a number of writings by Husak (2013:  50–​51; 2008: 151–​52; and 2003: 405–​406). For the alternative view that punishment is itself often justified on paternalistic grounds, see Morris (1981). 63. A similar point is made by Hurd, who is suspicious of paternalism but argues, against Husak, that “paternalists do not need to argue that punishment must itself be in the intrinsic interest of the person punished in order for its imposition to be both paternalistic and legitimate” (2009: 55). To make the point more vividly, imagine that if a certain putatively paternalistic policy were enacted, everyone would comply with it, so that no one would be punished. (Perhaps the mere threat of punishment would be sufficient to ensure perfect compliance.) Under these rather fanciful circumstances, one could not object to the law on the grounds that it seriously harms people by punishing them. But many anti-​paternalists would presumably still object to the law.

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(large-​scale) sellers and manufacturers.64 Still, it may be that paternalistic rationales are rarely, if ever, sufficient to justify criminal laws that impose very severe punishments on people. And if a law is unlikely to deter or reduce self-​harmful behavior unless it is backed up by unjustifiably severe sanctions, then there may be good reason to reject this law. That would be a problem for the law, not for pro-​paternalism. After all, any law, paternalistic or otherwise, should be rejected if it relies on the use of disproportionate punishment. Even when a flat criminal prohibition cannot be fully justified on paternalistic grounds, however, pro-​paternalists might have other, less punitive measures at their disposal.65

1.5 PLAN OF THE BOOK

The arguments of the subsequent chapters proceed as follows. In c­ hapter 2, I consider a set of broadly consequentialist arguments often attributed to J. S. Mill. Critics sometimes charge that paternalistic intervention is rarely effective or that it stifles individuality. These objections, if sound, would challenge the practical import, rather than the truth, of pro-​paternalism. I argue that given plausible normative and empirical assumptions, we can sometimes identify cases in which intervention is likely to serve the target’s best interest. In making this argument, I further clarify the commitments of the pro-​paternalist view. The next two chapters discuss some of the most prominent non­ consequentialist objections to paternalism. Chapter  3 focuses on the argument that paternalistic intervention is insulting, because it is prompted by objectionable motives, or sends an insulting message, or denies or denigrates the moral status of its targets. The pro-​paternalist view, I argue, can withstand each of these objections.

64. For further discussion of this issue, see section 9.1. 65. Indeed, while Feinberg opposes the “criminalization” of harmful self-​regarding behavior, he does not (necessarily) oppose other means of discouraging it:  “I object to criminalization of smoking because it is supported only by a paternalistic liberty-​ limiting principle that I  find invalid, but I  do not oppose taxing cigarette use, even though it too is coercive in a proper sense, and its rationale would be equally paternalistic” (1984: 23–​24, emphasis in original). As Feinberg recognizes, the imposition of such a tax may still involve punishment in a “less direct” or “derivative” way, since people who attempt to avoid paying the tax may be subject to punishment (1984: 20). But it seems to me that Feinberg is correct that there is at least a potentially important difference between, on the one hand, criminalizing smoking (that is, punishing people for smoking) and, on the other hand, taxing cigarettes and then punishing those who knowingly circumvent the tax.

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Chapter 4 critically examines the common complaint that paternalism “imposes values” on people. There are several different ways to interpret this objection. The most plausible, however, applies only to paternalistic rationales that appeal to generally inadmissible interests, and pro-​ paternalists can consistently deny that such interests provide valid grounds for intervention. In making this argument, I discuss some of the special problems raised by moral paternalism and other “perfectionist” rationales for intervention. I then turn in ­chapter 5 to consider the relationship between pro-​paternalism and rights-​based or deontological moral theories. It may appear that pro-​ paternalism leaves no room for the idea that people have certain rights, such as rights over their own bodies. I argue that this appearance is misleading. In doing so, I appeal to a moderate deontological view, according to which rights have thresholds beyond which they may be permissibly infringed. In ­chapters  6 and 7, I  go on the offensive in criticizing prominent alternatives to pro-​ paternalism. As we have seen, virtually all anti-​ paternalists agree that intervention—​even liberty-​limiting intervention—​ can sometimes be justified on the grounds that it serves the target’s best interest. In particular, most anti-​paternalists oppose hard paternalism but permit soft paternalistic intervention in ill-​informed or impaired self-​ harmful choices. I argue, however, that it is difficult for anti-​paternalists to articulate and defend a satisfying version of the hard/​soft distinction. In ­chapter 6, I argue that anti-​paternalists have difficulty explaining why, and when, it is permissible to interfere with ill-​informed choices. In ­chapter 7, I argue that anti-​paternalists have yet to offer a conception of impairment that can bear the weight they place on it. Chapter  8 considers the recent debate over nudging or, as it is sometimes called, “libertarian paternalism.” Critics have claimed that libertarian paternalistic strategies are often manipulative, insofar as they bypass the target’s rational capacities or exploit her cognitive biases. I  argue, however, that such strategies are not generally manipulative in any morally objectionable sense. In the concluding c­ hapter 9, I consider several applications of the pro-​ paternalist view. In particular, I consider its possible implications for the regulation of tobacco and alcohol, for legal requirements to purchase insurance, and for the disclosure of health-​related information to patients. Though a great deal of empirical study would be required to reach a firm verdict about any particular case, I  show that pro-​paternalism offers a framework within which these issues, among others, can be fruitfully considered.

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Having briefly mentioned some possible applications of pro-​paternalism, it is worth offering a final cautionary note. I  will sometimes appeal to examples to illustrate the claims I  am defending. Since these examples are usually intended for illustrative purposes, no one should reject pro-​ paternalism on the grounds, for instance, that intervention in some of the cases I  discuss would not actually serve the target’s best interest, or would do more harm than good, and so forth. Such objections would show only that the acts and policies in question cannot be justified by the pro-​ paternalist view, not that pro-​paternalism itself is mistaken.

CHAPTER 2

Misapplication and Individuality Millian Arguments

I

t is always a valid reason in favor of intervention that it would serve some of a person’s (admissible) interests, and intervention is justified when, all things considered, it would serve a person’s best interest without wronging others. That is the core pro-​paternalist view. Some would respond to it by arguing that paternalism “doesn’t work,” or that intervention in the self-​regarding sphere is usually counterproductive over the long run. If so, it might be thought, then both governments and individuals should be discouraged from interfering with choices that do not significantly affect the interests of those other than the decision-​maker. This concern receives its most prominent philosophical expression in John Stuart Mill’s On Liberty. Mill argued that the individual is better positioned to secure his own interests than are others acting on his behalf. Moreover, Mill claimed that we can expect people to develop their capacities for deliberation and choice only if they are allowed to freely exercise these capacities. Mill takes these broadly consequentialist arguments to rule out liberty-​limiting intervention in a person’s self-​regarding choices.1 Depending on how they are interpreted, such arguments, even if sound, may not threaten the truth of the pro-​paternalist view. Instead, they may challenge the practical import of pro-​paternalism. If it is virtually never reasonable to 1. Mill almost surely would have accepted that certain types of non-​liberty-​limiting paternalistic behavior, such as omissions, can be justified on the grounds that they are in the target’s best interest. For this reason, I will continue to focus on liberty-​limiting intervention throughout this chapter.

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believe that intervention in the self-​regarding affairs of a (nonconsenting) adult would be in his best interest, then pro-​paternalism, even if true, may be insignificant at the level of practice. One aim of this chapter, then, is to show that Mill’s arguments, and others like them, impugn neither the truth nor the practical import of pro-​paternalism. A second aim is to further clarify the commitments of pro-​paternalism in order to pave the way for a discussion of the nonconsequentialist objections considered in later chapters. After first describing several of Mill’s utilitarian arguments on behalf of liberty (section 2.1), I  explain how pro-​paternalists can support institutional constraints that discourage ineffective or counterproductive intervention (section 2.2). I then consider whether pro-​paternalism is consistent with rule-​consequentialism (section 2.3) and assess the claim that we ought to accept an absolute prohibition on paternalism at the level of institutional practice (section 2.4). Finally, I examine Millian claims about the value of individuality and show that they do not jeopardize the pro-​ paternalist position (section 2.5). First, a brief caveat is in order. Although I will take Mill as my starting point in this chapter, my primary aims are critical, not exegetical. Any attempt to place Mill’s anti-​paternalism within the context of his fuller utilitarian moral theory would likely require a book of its own.2 Given my aims here, it will be sufficient to briefly summarize and then assess several arguments that are commonly attributed to Mill, that appear to be suggested by the text of On Liberty, and that have influenced the contemporary debate over paternalism.

2.1 MILL AND PATERNALISM

Mill appears to divide human conduct into two distinct spheres:  a self-​ regarding sphere and an other-​regarding sphere. The self-​regarding sphere consists of conduct that “affects only [the individual] himself, or if it also affects others, only with their free, voluntary, and undeceived consent and participation.”3 Within this domain, the individual’s liberty ought to be absolute. On Mill’s view, a person’s “own good, either physical or moral, is not a sufficient warrant” for limiting his liberty, at least so long as we confine our attention to generally sane, competent, and informed adults.4 By 2.  For two recent but divergent attempts to do this, see Riley (2015a) and Brink (2013). 3. Mill (1859: I.12, 225). 4. Mill (1859: I.9, 223). Mill at least sometimes appears to hold, however, that paternalistic rationales can help to justify interference in combination with other,

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contrast, society has jurisdiction over behavior that affects others (without their voluntary consent and participation). When expedient, society may regulate behavior in this other-​regarding sphere. Though Mill evidently intends his view to apply both to the use of legal coercion and to the “moral coercion” of public opinion, I will focus mainly on the former.5 There are well-​ known problems in attempting to distinguish self-​ regarding behavior from other-​regarding behavior. Critics have objected that virtually no behavior is purely self-​regarding, since virtually all behav­ ior has some effect on others. “No one is an island,” as the saying goes. For present purposes, however, we might consider an action to be self-​ regarding just in case interference in this action cannot be justified on the wholly nonpaternalistic grounds that it is necessary to protect the interests of others.6 Why does Mill endorse absolute liberty within the self-​regarding sphere? His arguments appear to be broadly utilitarian, as he explicitly forswears “any advantage which could be derived to [his] argument from the idea of abstract right, as a thing independent of utility.”7 Two general lines of argument appear especially salient. The first holds that if the public is given the authority to interfere with self-​regarding conduct, it will inevitably misuse

nonpaternalistic rationales. This may be evident in his claim that products “positively injurious” to users ought to be taxed in preference to other, less harmful products (1859: V.9, 298). Further, Mill seems to suggest that punishment is sometimes justified at least in part because it can be good for the offender. For relevant discussion, see Riley (2015a: 310–​12; 2015b: 794–​95). 5. Mill (1859: I.9, 223). 6. Brink has likewise argued that, on Mill’s view, to say that some conduct is self-​ regarding “is the conclusion of an argument about whether it should be regulated, not a premise” in such an argument: an action counts as self-​regarding if, and only if, interference in it cannot be justified on the grounds that it prevents harm to others (2013: 141). For a similar view, see Lovett (2008: esp. 124–​27). To be sure, the account I have given implies that behavior would be self-​regarding if interference with it can be fully justified only by a mixed rationale that appeals partly to the agent’s own interests and partly to the interests of others. Depending on how we interpret Mill, this result may not exactly conform to his own understanding of the self-​regarding sphere, and it may seem odd as a matter of linguistic propriety. Yet it may not be substantively objectionable to conclude that a choice is self-​regarding so long as intervention in this choice cannot be fully justified by appeal to the interests of others. Indeed, this conclusion may fit the way in which the self-​regarding/​other-​regarding distinction is actually used in debates over paternalism. For instance, if one argues that outdoor smoking bans on university campuses can be fully justified on the nonpaternalistic grounds that they protect the interests of nonsmokers, then one is likely to consider outdoor smoking on campuses to be other-​regarding behavior. By contrast, if one argues that blanket smoking bans on university campuses cannot be fully justified as protecting nonsmokers, one is likely to conclude that outdoor smoking is self-​regarding. 7. Mill (1859: I.11, 224).

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that authority. Call this the argument from misapplication. It is suggested by one of Mill’s most forceful condemnations of intervention in the self-​ regarding sphere: But the strongest of all the arguments against the interference of the public with purely personal conduct, is that when it does interfere, the odds are that it interferes wrongly, and in the wrong place. On questions of social morality, of duty to others, the opinion of the public, that is, of an overruling majority, though often wrong, is likely to be still oftener right; because on such questions they are only required to judge of their own interests; of the manner in which some mode of conduct, if allowed to be practised, would affect themselves. But the opinion of a similar majority, imposed as a law on the minority, on questions of self-​regarding conduct, is quite as likely to be wrong as right; for in these cases public opinion means, at the best, some people’s opinion of what is good or bad for other people; while very often it does not even mean that; the public, with the most perfect indifference, passing over the pleasure or convenience of those whose conduct they censure, and considering only their own preference.8

Mill here identifies at least two possible reasons for thinking that a paternalistic agent is likely to interfere “in the wrong place.” On the one hand, even if the paternalistic agent is genuinely motivated by benevolent concern, he is likely to err because competent adults are generally the best judges of their own interests. As Mill emphasizes elsewhere, the individual has the greatest incentive to make good choices about his own affairs, and the individual is in a privileged epistemic position with respect to his own interests: “with respect to his own feelings and circumstances, the most ordinary man or woman has means of knowledge immeasurably surpassing those that can be possessed by any one else.”9 On the other hand, as Mill 8. Mill (1859: IV.12, 283). 9.  Mill (1859:  IV.4, 277). A  different epistemic argument is defended by Terlazzo (2015). Terlazzo argues, first, that people have an interest in settling on commitments that help to shape their identities; second, that once a person has settled on a commitment, she has a strong interest in pursuing it, even if it was imprudent for her to adopt this commitment in the first place; and, finally, “that third parties necessarily lack the epistemic access that would allow them to determine whether a person’s unlikely or unseemly preferences have reached the level of commitment so important to her interests” (2015: 312). I have some reservations about the second step in this argument: if it was foolish for me to adopt a certain commitment in the first place, it is not clear that my having adopted it gives me good reason to pursue or honor it (Wall [2013:  103–​104]). More importantly for present purposes, however, it seems likely that third parties can sometimes determine what a person’s commitments are—​for instance, by asking her, or observing how she lives her life. And for policy purposes, it may be sufficient that we know the prevalence of some commitment among the general

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suggests at the end of the passage, an agent who seeks to restrict someone’s self-​regarding liberty may not even be motivated by benevolence. Mill is apparently concerned that a principle permitting intervention in the self-​ regarding sphere would essentially provide the majority with a license to legislate its own likings and dislikings.10 Of course, we might hope that an ideal public or government would seek to limit self-​regarding liberty only when doing so would be in the best interests of (enough of) those subject to the restriction. But, Mill asks rhetorically, “where has there been seen a public which set any such limit to its censorship?”11 The argument from misapplication is not Mill’s only objection to paternalism, however. Mill also argues that social interference in self-​regarding behavior can impede the development of our unique powers and capacities. On his view, the more self-​regarding freedom people have, the more they are able to exercise their powers of deliberation and choice. And the development of these powers, he seems to think, is a crucial ingredient of well-​being. Thus, Mill claims that liberty is a precondition for the full and harmonious development of our distinctively human capacities: He who chooses his plan [of life] for himself, employs all his faculties. He must use observation to see, reasoning and judgment to foresee, activity to gather materials for decision, discrimination to decide, and when he has decided, firmness and self-​control to hold to his deliberate decision. And these qualities he requires and exercises exactly in proportion as the part of his conduct which he determines according to his own judgment and feelings is a large one.12

According to this line of argument, the growth of a person’s moral, aesthetic, and intellectual capacities will be stunted unless he enjoys freedom within the self-​regarding sphere. Call this the argument from self-​development. The arguments from misapplication and self-​development are not mutually exclusive. Nonetheless, it is useful to separate the two arguments, at least for dialectical purposes, since someone might endorse one without endorsing the other. In particular, the argument from misapplication, unlike the argument from self-​ development, does not appeal to any

population, not that we know whether this commitment has been adopted by any particular individual. In fairness, however, Terlazzo (2015:  305), arguably unlike Mill, does not believe that her view rules out all intervention in the self-​regarding sphere. 10. Mill (1859: I.7, 222). 11. Mill (1859: IV.12, 284). 12. Mill (1859: III.4, 262–​63).

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contentious claims about the nature of happiness or well-​being.13 In the following three sections, I focus on the argument from misapplication. In section 2.5, I turn to the argument from self-​development.

2.2 MORAL PRINCIPLES AND INSTITUTIONAL RULES

A preliminary question regarding the argument from misapplication is precisely how it should be thought to pose a problem for pro-​paternalism. The argument’s central contention is that intervention in the self-​regarding affairs of competent adults is likely to be counterproductive or to do more harm than good. This point, however, does not identify any objectionable feature of successful or effective paternalistic intervention.14 As we have seen, pro-​paternalists can consistently oppose intervention that is not in anyone’s best interest. They can likewise oppose intervention on the grounds that, while it may be in the best interests of some, it imposes overly severe burdens or hardships on others. To be sure, the argument from misapplication may speak against giving the government (or others) broad legal authority to interfere in self-​regarding behavior.15 But how would this conclusion threaten pro-​ paternalism? Consider the following sort of argument: (1) Pro-​paternalism implies that the government should have very broad legal authority to interfere in self-​regarding behavior. (2) The government should not have broad legal authority to interfere in self-​regarding behavior, since it would be likely to misuse this authority, with dreadful consequences. (3) So pro-​paternalism is mistaken.16

13. Larmore (1996: 127–​34) and Quong (2011: 99–​100) argue that Mill’s appeal to individuality invokes contentious or perfectionist value claims. For an alternative interpretation of Mill, according to which he offers a broadly “non-​sectarian” argument against paternalism, see Gaus (2008). 14. See Brink (2013: 151). 15. For the sake of simplicity, I will continue to focus on government paternalism in what follows, but the points I make apply more broadly. 16. Consider Fuchs’s characterization of Mill’s argument: “Mill concedes, to be sure, that some individuals (even minimally competent ones), will on some occasions use their liberty unwisely and will indeed harm themselves in ways that society might have prevented had it the paternalistic power to intercede. But granting any such authority to society as a rule, which it could invoke on any occasion when intervention was thought to be in the interest of the agent, is sure to bring about more harm than good” (2001: 238, emphasis added).

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The problem for this argument is that (1) is false. Pro-​paternalism, as I have characterized it, does not imply anything about what kinds of legal authority the government should have. To see why this is so, it is necessary to appreciate the level at which the pro-​paternalist view operates. Pro-​paternalism is a moral view about the reason-​giving status of paternalistic rationales. It is not an institutional rule that tells us how the government should be arranged or how government officials should be legally permitted or encouraged to conduct themselves.17 Nor does the pro-​paternalist view necessarily provide a decision procedure, which would direct the government and its representatives always to aim at the prevention of imprudent self-​regarding conduct. Thus, one can accept the pro-​paternalist view while endorsing institutional constraints on the government’s ability to intervene in the self-​regarding sphere. Such institutional constraints would function to deter harm and abuse. Consider the scenario in which there are no institutional constraints on the government’s authority to intervene in its citizens’ behavior, so that it can easily intervene whenever it (perhaps groundlessly) decides to do so. Moreover, suppose, as seems likely, that the government would use this unlimited authority in harmful or counterproductive ways. Perhaps, as Mill feared, the government would intervene in order to suppress behavior that is merely eccentric, or perhaps it would intervene in ways calculated to strengthen its own position to the detriment of citizens, and so forth. If so, there would be strong reasons—​reasons that even pro-​paternalists can recognize—​to accept institutional constraints on the way in which the state may involve itself in individuals’ affairs. The pro-​paternalist argument for endorsing such constraints would be that, without them, the government would often intervene in harmful ways, and that the costs of such harmful intervention are likely to outweigh any paternalistic gains made possible only by the absence of the relevant constraints. Of course, if the government were always capable of determining whether intervention would serve the best interests of (enough of) its citizens without wrongly burdening others, and if government officials could always be counted on to act in good faith, then such constraints may be unnecessary. But since governments (and other prospective interveners) are imperfect, such constraints are a necessary prophylactic against counterproductive intervention and abuse.18 17.  See Arneson (2000) for a somewhat similar point, as applied to egalitarian principles. 18.  For the view that Mill’s arguments for self-​regarding liberty are “prophylactic” in this way, see Sher (1997:  128–​38), who considers whether Mill’s prophylactic arguments are sufficient to justify some ideal of political neutrality.

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In case this is thought to be a significant concession by the pro-​ paternalist, it is worth noting that a similar point applies to the “soft paternalist” views endorsed by most anti-​paternalists. Soft paternalism, recall, holds that it is a good reason in favor of liberty-​limiting intervention that it would protect people from their own ill-​informed or impaired choices. Most people agree with Mill, for instance, that it is permissible, on soft paternalistic grounds, to interfere with the liberty of adults who are insane or otherwise of unsound mind. Some critics have worried, however, that this view leaves “unacceptable latitude” to prospective paternalistic agents: Prison environments and therapeutic agencies have thrived on the use of paternalistic justifications. Paternalism potentially gives prison wardens, psychosurgeons, and state officials a good reason for coercively using most any means in order to achieve ends they believe in the subject’s best interest. It is demonstrable that allowing this latitude of judgment is dangerous and acutely uncontrollable.19

If these concerns are valid, as they may well be, then presumably therapeutic agencies, state officials, and others should not be given the relevant degree of latitude. For instance, if prison wardens or psychosurgeons would frequently offer (soft) paternalistic arguments to justify the harmful treatment of people with severe mental illnesses, then perhaps institutional rules should be enacted to prevent them from imposing such treatment, or at least to make it more difficult for them to do so. The desirability of such rules would not show that there is anything objectionable, in principle, about intervening in the best interests of adults with severe mental illnesses. It would instead show only that we should be careful to prevent people from intervening in ways that cause harm. In sum, then, we ought to distinguish two issues. The first concerns the conditions under which intervention in a person’s affairs can be justified on the grounds that it is in his best interest. The second concerns the institutional constraints that ought to be placed on public officials’ (and others’) ability to intervene in the self-​regarding domain, as a prophylactic against harm and abuse. Pro-​paternalism addresses the first issue; it does not, by itself, resolve the second. My initial response to the argument from misapplication may invite two critical rejoinders, however. A first appeals to rule-​consequentialism.

19. Beauchamp (1977: 78). As Beauchamp makes clear in the next sentence, he is here focusing on the views of Feinberg (1971), Dworkin (1971), and Hart (1963).

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A  second holds that even if pro-​paternalism is true, we should accept a near-​absolute prohibition on paternalism at the level of institutional practice. I will briefly examine each argument before turning to Mill’s claims on behalf of individuality and self-​development.

2.3 RULE-​C ONSEQUENTIALISM

The argument from misapplication raises the following possibility: if people accept pro-​paternalism in the sense that they attend to, and are prepared to act on, what they believe to be good paternalistic rationales, they may be far too disposed to intervene in harmful or counterproductive ways. (This possibility is suggested by Mill’s claim that when the public interferes with self-​regarding conduct, “the odds are that it interferes wrongly, and in the wrong place.”) Thus, it may be better, even by the pro-​paternalist’s own lights, if people ignore (what they take to be) paternalistic rationales, at least in certain contexts. This conclusion would not necessarily show that pro-​paternalism is false:  a principle might be true even if its acceptance would have undesirable consequences.20 At this point, however, a critic might endorse some variety of rule-​ consequentialism. There are a number of different rule-​consequentialist theories; for the sake of simplicity, I focus on one developed by Brad Hooker. Hooker’s view can be briefly summarized in the following two claims: (1) an act is wrong (permissible, required) if it is forbidden (permitted, required) by the optimal code of moral rules, and (2) a moral code is optimal if its internalization by “the overwhelming majority of everyone everywhere

20. Parfit (1984: 23–​24). To appreciate the significance of this point, consider Groll’s discussion of the relationship between an “autonomy principle,” which gives patients the right to make decisions about their medical care, and the “beneficence principle,” which “enjoins clinicians to act in ways that are ultimately good for the patients in their charge” (2014b: 195). Groll argues that the autonomy principle has priority over the beneficence principle, at least in part because “authorizing people to make decisions about their own care is, at least in general, good for them both instrumentally and intrinsically” (2014b: 200). As Groll recognizes, this view may seem odd, since it seems to imply that the autonomy principle is actually subordinate to the beneficence principle. Groll (2014b: 200–​201) seems to suggest, however, that clinicians who generally think in terms of the autonomy principle are likely to do more good than those who generally think in terms of the beneficence principle. Notice, however, that if this is true, then even pro-​paternalists could argue that clinicians ought to give some priority to the autonomy principle in their thought, since doing so may best promote patient interests. This point would be consistent with the view that intervention is in fact permissible whenever it serves the patient’s best interest (without imposing sufficiently severe costs on others).

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in each new generation has maximum expected value.”21 As this formulation makes clear, in evaluating rules we are to evaluate the consequences of their internalization. To say that someone has internalized a rule is to say that he is disposed to follow it and consult it in deciding what to do, that he is disposed to encourage others to comply with it, that he generally blames those who fail to comply with it, that he feels guilt when he violates it, and so forth.22 To accept or internalize a rule, then, is to adopt a range of related attitudes and dispositions. How does this bear on paternalism? If pro-​paternalism is likely to be misapplied for the sorts of reasons described by Mill, then perhaps the optimal moral code would include a constraint on certain types of intervention in the self-​regarding sphere. Such a constraint would, in effect, check the tendency that we might otherwise have to intervene in counterproductive ways. And if the optimal moral code were to include such a constraint, then there would presumably be certain types of intervention that pro-​paternalism deems permissible but rule-​consequentialism deems impermissible. This conclusion may seem to pose a problem for the pro-​paternalist.23 A full treatment of this objection would require a more detailed discussion of rule-​consequentialism than I  can undertake here. One of the most persistent objections to rule-​consequentialism is the so-​called rule-​ worship objection. It seems likely that there will be some cases in which an agent knows that departing from the optimal set of rules will have better consequences than adhering to the rules. And, the objection goes, if the acceptance of the rules is itself justified because it has better consequences than the acceptance of any alternative set of rules, why shouldn’t the agent violate the rules when he knows that doing so would have optimal consequences? To do otherwise would be to fetishize or worship the rules. Though this objection has seemed decisive to many critics, it has also elicited thoughtful responses from proponents of rule-​consequentialism.24 Since I  cannot here resolve the debate over the merits of rule-​ consequentialism, I will instead have to rest content with two points. The first is that even if the rule-​consequentialist argument is sound, paternalistic rationales are still relevant—​in particular, they are relevant in deciding

21.  Hooker (2000:  32). Hooker understands maximum expected value in terms of maximum expected well-​being, with some priority for the worse off. 22. Hooker (2000: 76). 23. For an interpretation of Mill’s argument against paternalism along these lines, see Miller (2010: 139–​40) and, perhaps, Fuchs (2001: 238, 240). 24. See, e.g., Hooker (2000: 99–​102).

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on the optimal set of rules. Let me explain. Many consequentialists hold that acts (and policies) are direct objects of moral evaluation, to be assessed by whether they maximize value. But according to the rule-​consequentialist line of argument just described, only rules (or dispositions, etc.) are direct objects of consequentialist evaluation; we are to decide on the optimal set of rules by consequentialist criteria and then assess individual acts by their conformity with the rules. But notice that on such a view, the fact that the near-​universal acceptance of some rule (or set of rules) would benefit people by deterring self-​harmful behavior would always count as a reason in favor of accepting this rule (or set of rules). We can then say that, if rule-​consequentialism is true, paternalistic rationales always provide valid reasons with respect to the objects of direct moral evaluation—​namely, the system of rules. And we can leave open, as a general question about consequentialist morality, whether acts or rules (or both) ought to be selected as the direct objects of moral evaluation. The second point is that a rule-​consequentialist argument similar to the one described earlier may well apply to the sorts of putatively soft paternalistic intervention accepted by most anti-​paternalists. If people are likely to make mistakes when they attempt to determine whether intervention in a competent and informed person’s self-​regarding choices would be in his best interest, they are presumably also likely to make mistakes when they attempt to determine whether intervention in an incompetent or ill-​informed person’s self-​regarding choices would be in his best interest. Moreover, people are also likely to make mistakes when they attempt to determine whether a person is competent and informed enough to be capable of voluntary choice.25 Thus, it may be best if people accept a moral code that at least sometimes rules out beneficial intervention in the affairs of incompetent or ill-​informed decision-​makers, since the alternative may be a moral code that people predictably misapply. Once this possibility is conceded, however, it appears that the rule-​consequentialist objection we have been considering does not identify any distinctive problem for (hard) paternalism. Since most anti-​paternalists embrace a soft paternalistic principle permitting intervention on behalf of incompetent adults without attempting to show that this principle would be part of the rule-​ consequentialist’s optimal moral code, the rule-​consequentialist objection does not seem to be a particularly plausible way of understanding their opposition toward paternalism.

25. This may especially be true if we accept a sliding-​scale conception of voluntariness, of the sort proposed by Feinberg (1986: 117–​24) and summarized in section 6.1.

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[ 42 ]  In Our Best Interest 2.4 AN ABSOLUTE PROHIBITION?

The argument from misapplication still leaves a lingering concern, however. I have conceded that there may be good reason, as a matter of institutional practice, to discourage public officials and others from intervening in certain types of self-​regarding choices. A Millian critic may attempt to press this point further: perhaps concerns about misapplication and abuse are so serious that, in practice, we ought to “restrict our deliberations concerning coercive social interference so that they are predicated solely upon the prevention of harm to people other than the agent whose freedom may be limited.”26 There are in fact two versions of this argument. A  first is rule-​ consequentialist. It holds that the optimal moral code would include an absolute or near-​absolute prohibition on intervention in the self-​regarding affairs of competent adults.27 A second version of the argument, consistent with act-​consequentialism, holds that we ought to strategically restrict our deliberations as a sort of “best policy.”28 According to this line of reasoning, we should generally be disposed to dismiss paternalistic rationales for intervention, even if intervention is in fact permissible when it produces the best overall consequences. Consider an analogy. Suppose that beginning tennis players tend to be far too willing to run toward the net when they should hang back near the baseline. An experienced coach might encourage such players to always resist the temptation to run toward the net. And this advice might be sensible, even if there are rare occasions on which such a player is likely to score a point by playing near the net. The second version of the argument holds that something similar is true in the case of paternalism: because we are so likely to err when we attempt to intervene in others’ self-​regarding affairs, perhaps we would do best to banish 26. Lyons (1994: 64, emphasis added) suggests this interpretation of Mill. See also Skorupski (1989: 360) and Sartorius (1975: 154). 27. Defenders of this view would obviously need to provide some criterion of competence, and this may be quite a difficult task. In the interests of brevity, however, I will set this point aside. 28. See Turner (2013: 326). Turner clearly distinguishes the two versions of the absolutist argument just described, though he attempts to show that neither represents an accurate interpretation of Mill. Talbott, on the other hand, argues that “[f]‌or Mill’s argument [for self-​regarding liberty] to go through, he needs to show that the expected utility of a policy of legal paternalism is lower than the expected utility of an antipaternalistic policy” (2010: 278). It may not be entirely clear how we are to understand a “policy of legal paternalism.” If it involves the government’s having broad legal authority to restrictively regulate vast swaths of our lives, however, then there would seem to be alternatives both to a “policy of legal paternalism,” on the one hand, and “an antipaternalistic policy,” on the other.

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paternalistic rationales from our deliberations, even if such rationales do sometimes provide a sufficient justification for intervention. Since this version of the argument allows that intervention in a person’s choice is in fact permissible when it serves his best interest (without wrongly burdening others), it does not challenge the truth of pro-​paternalism. Instead, the argument, if sound, would show that pro-​paternalism should be largely ignored, even if it is true. The problem for both versions of the argument is that they rely on a very strong empirical assumption—​namely, that we cannot identify any exceptions to the absolutist rule in a sufficiently reliable way, where the criterion of sufficient reliability is essentially consequentialist. There are at least two reasons to be suspicious of this assumption. The first, which has been rehearsed by many critics of On Liberty, is that consequentialism does not seem to justify absolute prohibitions on just about anything.29 To illustrate, consider the case of promises. Consequentialists are likely to argue that there are good reasons for us to cultivate dispositions that make us reluctant to break promises. But of course this doesn’t mean that one should wholly ignore the good that might be done by breaking a promise, no matter how great that good is. Perhaps it would be best, in consequentialist terms, if we were to internalize a rule under which a promise can be broken only when it is relatively trivial or when a very significant loss could by avoided by its violation.30 The question, then, is why the consequentialist shouldn’t say something similar about paternalism. Perhaps we should strategically restrict our deliberation in the following way: we count the target’s interests as a valid reason for limiting his liberty only if these interests are very important or the limitation relatively trivial.31 Indeed, though this is partly an empirical question, it may well turn out that the majority of cases in which there is good reason to believe that intervention would be in the target’s best interest are cases in which the interests served are very important. Let us turn now to a second reason to reject the absolutist arguments just described. As we have seen, one of Mill’s most influential objections to paternalism centers on competence-​based considerations:  the typical adult has a greater incentive to make a good choice for himself than others 29. See, among others, Dworkin (1971: 24). 30.  Hooker (2000:  133). Of course, as Hooker points out, determining whether a promise is trivial or “solemn” is a matter for judgment, but there are clear cases in either direction. 31. In this regard, consider Lyons’s claim that Mill ought to accept some intervention that protects “uncontroversial, unproblematic, shared interests, or primary goods” (1994: 135).

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do on his behalf, and he also has greater knowledge of “his own feelings and circumstances.” Yet there are sometimes countervailing reasons for thinking that the individual is not uniquely well-​positioned to secure his own interests.32 Some of these reasons are suggested by the recent psychological literature on cognitive bias.33 But the basic point can be made even without reviewing this literature. There are some cases in which a weak-​willed individual admits that his choice is contrary to his well-​being. (Consider, for instance, the number of smokers who attempt to quit, apparently out of a conviction that smoking is bad for them.) In such a case, the general presumption that the individual is the party most able to secure his best interest may not apply. Relatedly, individuals may be subject to temptation of a sort that leads them to ignore or downplay considerations that oppose the course of action toward which they are tempted. They may engage in wishful thinking about their own behavior. As David Archard observes, there are cases in which “closeness to some object distorts its perception or prevents a proper appreciation of its form.”34 (If one wants to estimate the probability that a recent marriage will last longer than ten years, one would do much better to consider population-​level data than to ask the besotted newlyweds.) Moreover, even if an individual has special expertise about his current tastes and desires, he may not have special expertise regarding the ways in which his tastes and desires will change in the future.35 Indeed, Mill himself seemed to recognize this point; he noted that there is an “exception to the doctrine that individuals are the best judges of their own interest” arising “when an individual attempts to decide irrevocably now, what will be best for his interest at some future and distant time.”36 Finally, people may sometimes have difficulty behaving prudently when confronted with choices that, considered individually, have negligible effects but that, taken together, can have rather significant effects.37 Many habitual smokers agree that the costs of a long-​term smoking habit are not

32. Hart (1963: 32–​33). 33. There is a large and growing literature considering the relationship between cognitive bias and paternalism; prominent contributions to this literature include Levy (2014), Trout (2005), Sunstein and Thaler (2003), and Camerer et al. (2003). 34. Archard (1994: 286). 35.  Gilbert and Wilson (2000). For the view that “affective forecasting” errors are problematic because they result in imprudent, rather than nonautonomous, choices, see Hanna (2013). 36. Mill (1848: V.XI.10; 953). Cohen-​Almagor (2012: 568–​69) suggests on this basis that Mill may have had good grounds to be suspicious of “living wills,” or advance directives regarding health care. 37.  As Andreou notes, such situations are “first-​rate breeding ground for self-​ destructive behavior” (2006: 101).

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worth the benefits, but they may have difficulty quitting because they focus only on the miniscule marginal contribution of each additional cigarette. No doubt more could be said about the ways in which prudential decision-​ making often goes awry. For present purposes, the important point is that the sorts of factors just mentioned, and others like them, do not merely identify errors in self-​regarding deliberation. They also identify respects in which third parties may be better positioned than the individual himself to secure the individual’s own best interest.38 After all, while the individual’s desire to engage in some form of behavior may tempt him to act against his better judgment or incline him toward wishful thinking, it is unlikely to have these effects on others. Likewise, third parties, armed with statistical information about the way in which individuals’ preferences typically change, may sometimes be able to predict an individual’s future preferences better than he is. They may also be more likely to think in terms of population-​level data and thus avoid the errors associated with imprudent choices that pose only miniscule marginal risks. The upshot is this: if the Millian critic’s opposition to intervention is prompted by a judgment that the individual’s knowledge of his tastes and circumstances puts him in an epistemically privileged position over others, then such opposition should be tempered when the presence of factors such as those just described gives others a significant advantage over the individual himself. At this point, a critic might reply that even if we can identify some cases in which others are better positioned than the individual to secure his own interests, there are nonetheless good reasons not to grant the government any authority to intervene in the self-​regarding sphere. One concern here points to the likelihood of a “slippery slope.”39 Perhaps we can reliably identify some policies that are in the best interests of their targets. But, the argument goes, if the government enacts these policies, it will become far more likely to enact other, counterproductive policies. Recall Mill’s rhetorical question: Where has there been seen a public which limited its censorship to clearly undesirable modes of behavior? Our current practice strongly suggests, however, that we can design institutions that permit us to go partway down the paternalistic path without crashing into the ravine. For example, many governments regulate various classes of consumer products, such as newly developed therapeutic drugs. Drugs that are judged to be too dangerous, or to have overly severe

38. Goodin (1995: 127–​30). 39.  For relevant discussion, see Whitman and Rizzo (2007). Miller (2010:  151) suggests that an appeal to slippery-​slope reasoning may help to strengthen Mill’s arguments against paternalism, though Miller appears skeptical of such reasoning.

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side effects, are simply barred from the market. But few people seem to be worried that granting the US Food and Drug Administration the authority to take potentially dangerous drugs off the market will result in a snowball effect whereby vast swaths of our lives are subject to invasive interference.40 Instead, we rely on a device discussed already: institutional constraints that grant government agencies the authority to intervene only in certain types of behavior. Although we should be cognizant of slippery-​slope concerns, there is little reason to expect the optimal set of constraints to rule out all intervention in the self-​regarding sphere. It is worth making one final point relevant to the slippery-​slope argument. Although this argument is often pressed against pro-​paternalism, a mirror image of it may confront the view that we ought to “restrict our deliberations concerning coercive social interference” to account only for the prevention of harm to others. If imperfect government officials were to restrict their deliberations in this way, they may set out to repeal or roll back laws and regulations that they (perhaps mistakenly) believe can be justified only as protecting people from their own imprudent decisions. And if the government’s efforts to enact new paternalistic policies would be likely to overshoot the mark, then perhaps the government’s efforts to repeal policies that it believes can be justified only as protecting people from their own imprudence would be likely to overshoot the mark in the other direction. In particular, such a government might end up repealing some policies and regulations that are justified on the nonpaternalistic grounds that they protect some people from others. It might turn out, for instance, that a move to repeal putatively paternalistic policies would contribute to an environment of deregulation, which in turn could lead to the repeal of some policies that would be endorsed even by most anti-​paternalists—​for instance, certain consumer protection laws that prevent fraud.41 Of course, 40. It might be argued that most of us want newly developed therapeutic drugs to be tested and regulated for safety, since we do not have the time or information to assess their safety for ourselves. In this case, such regulations may not seem to raise serious concerns about paternalism. Even so, the more general point just made would still stand: an agency might have some authority to regulate a specific product or behavior without having unlimited authority to intervene in our lives. I am grateful to Daniel Groll for helpful feedback on this point. 41. Dworkin gives as an example of paternalism “[l]‌aws requiring a license to engage in certain professions with those not receiving a license subject to fine or jail sentence if they do engage in the practice” (1971: 20). Whatever we might think of these policies, it can hardly be denied that they are often regarded as paternalistic, or as justified on the grounds that they benefit people by limiting their opportunity to use the services of unlicensed professionals. A government steadfastly opposed to all paternalism may thus be more likely to repeal these policies. And it is not totally implausible to think that a government that has repealed these policies may also be less likely or less able

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the anti-​paternalist may conjecture that this would not in fact happen. Whether it would is a matter of empirical speculation, just as the original slippery-​slope objection was. My point is simply that a robust anti-​ paternalist view might face slippery-​slope concerns of its own. It may be fair—​indeed, I  believe it would be fair—​for anti-​paternalists to respond that it is no argument against their view that some people are likely to misunderstand or misapply it. But then it would likewise be fair for pro-​ paternalists to offer a similar response.

2.5 INDIVIDUALITY

Having examined the argument from misapplication, let us now turn to the argument from self-​development, which may appear to be Mill’s strongest argument against paternalism. A central argument of On Liberty holds that “[i]‌ndividuality is the same thing with development, and that it is only the cultivation of individuality which produces, or can produce, well-​developed human beings.”42 On Mill’s view, one becomes a “noble and beautiful object of contemplation” by “calling forth” what is “individual” or unique in oneself, at least provided that one does not thereby violate others’ rights.43 Such individuality is opposed to mere imitation and conformity. To cultivate it, one must actually exercise one’s unique powers and capacities, and one can do this only by making choices. Self-​development requires liberty as one of its prerequisites. Critics have claimed that some of Mill’s appeals to individuality abandon the utilitarianism that he explicitly affirms.44 This is not so clear, however. On the one hand, as the title of On Liberty’s third chapter suggests, Mill considers individuality to be an element or component of well-​being. And surely a utilitarian can acknowledge that individuality is valuable in this way. The utilitarian claim that well-​being ought always to be maximized does not take any stand on what well-​being is. On the other hand, Mill’s appeal to individuality may be in tension with his (apparent) hedonism, according to which pleasure and pain are the sole determinants of

to enact or enforce laws prohibiting fraud by professionals such as doctors or financial advisers, even if these laws can be justified on the Millian grounds that they prevent nonconsensual harm to others. 42. Mill (1859: III.10, 266–​67). 43. Mill (1859: III.9, 266). 44. For contemporary statements of this concern, see, e.g., Feinberg (1986: 384n7), Sankowski (1985: 3), and Dworkin (1971: 26–​27).

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well-​being.45 Consider two lives, identical in all respects, except that one is marked by a greater degree of individuality or self-​development. Mill would presumably claim that the life characterized by individuality goes better for the person whose life it is. As Mill puts the point, it matters “not only what men do, but also what manner of men they are that do it.”46 Pro-​paternalism, as I  have characterized it, does not presuppose any particular theory of well-​being. It can thus accommodate the claim that individuality is a component of well-​being. Suppose it is. Suppose further that intervention in the self-​regarding sphere would virtually always inhibit individuality without advancing other, more important interests. The conclusion we should then draw is that liberty-​limiting intervention in a person’s self-​regarding choices can only rarely be justified. The claim that the pro-​paternalist view would only rarely justify intervention, however, does not show that it is false. Thus, the argument from self-​development, like some versions of the argument from misapplication, is probably best understood as an objection to pro-​paternalism’s practical import. So understood, the argument turns on two claims: first, that intervention in a competent adult’s self-​regarding choices (nearly) always impedes individuality and, second, that if it does, then it is (virtually) always contrary to his best interest. Both of these claims, however, face serious problems. Let us consider them in reverse order. Suppose, for the sake of argument, that the first claim is true—​that is, that intervention in the self-​regarding sphere always impedes individuality. This conclusion would not yet show that such intervention is always contrary to the best interest of the person subject to it. For even if individuality is an element of well-​being, it is surely not the only element of well-​being, and it may be worth sacrificing some individuality for the sake of other goods.47 Such tradeoffs would be ruled out only if one were to assign a very strong form of priority to individuality. To appreciate this

45. See Brink (2013: 60–​63) and Bogen and Farrell (1978). Ten (1980: 77–​78) notes that some of Mill’s claims on behalf of individuality make it difficult to interpret him as a “straightforward utilitarian,” partly because it is unclear how individuality, as a component of well-​being, can be ranked as more (or less) important than other components of well-​being. A full assessment of the relationship between Mill’s hedonism and his views on individuality is complicated by the fact that he accepts a qualified hedonism, according to which some pleasures are qualitatively, and not merely quantitatively, superior to others. 46. Mill (1859: III.4, 263). 47. This point has been noted by others, though some put the point in terms of autonomy rather than individuality. See, for instance, Young (2008:  217), Skorupski (1989: 359–​60), Gray (1983: 94), and Bogen and Farrell (1978: 336–​37).

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point, consider Mill’s doctrine of higher and lower pleasures. In an infamous passage of Utilitarianism, Mill characterized this doctrine as follows: If one of the two [pleasures] is, by those who are competently acquainted with both, placed so far above the other that they prefer it, even though knowing it to be attended with a greater amount of discontent, and would not resign it for any quantity of the other pleasure which their nature is capable of, we are justified in ascribing to the preferred enjoyment a superiority in quality, so far outweighing quantity as to render it, in comparison, of small account.48

According to some commentators, Mill is here claiming that higher pleasures are discontinuously or infinitely more valuable than lower pleasures.49 One might rule out tradeoffs between individuality and other components of well-​being by assigning the same sort of priority to individuality (or, perhaps, the pleasures with which it is associated). Alternatively, and more weakly, one might hold that although individuality does not strictly speaking take lexical priority over other elements of well-​being, it is so important that, in the cases we are actually likely to encounter, intervention in the self-​regarding sphere is unlikely to provide benefits sufficient to compensate for its adverse effects on individuality.50 Neither of these views, however, seems very palatable. We can surely imagine someone who is miserable, even though he has succeeded in developing his distinctive talents and capacities. And when we reflect on such a case, it seems difficult to believe that it would be imprudent for him to trade some individuality for a sufficiently large increase in other goods. And if it would be prudent for a person to make such a tradeoff, then it is difficult to see how one could argue that third-​party intervention is always counterproductive in virtue of its effects on individuality. It may be true that, all else equal, a person’s life goes better for him to the extent that it is characterized by individuality. But because individuality is not the only component of well-​being, all else is not always equal. There is a further reason not to assign strong priority to individuality over other elements of well-​being, at least if we assume that individuality is always compromised by intervention in the self-​regarding sphere. Consider some form of self-​regarding behavior that has the following features: (a) it

48. Mill (1861: II.5, 211). 49. See Riley (2008; 2009). 50. See Gray (1983: 95–​97). Likewise, Ten (1980: 73–​74) and Fuchs (2001: 234–​38) suggest that Mill emphasizes individuality largely because he believes that it is conducive to the highest forms of pleasure.

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[ 50 ]  In Our Best Interest

appears to be severely self-​harmful; (b) many people who engage in it do so nonvoluntarily, as a result of immaturity, mental illness, and so forth; (c) some people who engage in it do so voluntarily; but (d) there is no reasonable or effective way to distinguish those who engage in the behavior voluntarily from those who do not, so that it must be restricted among everyone or among no one. Under these circumstances, most anti-​paternalists would argue that if a sufficiently great proportion of people who engage in the behavior do so nonvoluntarily, there is a sufficient soft paternalistic rationale for intervention.51 But notice that, ex hypothesi, such intervention would limit the liberty of some people to voluntarily engage in behav­ ior that affects only themselves, and we are now assuming that all such restrictions on voluntary self-​regarding behavior compromise individuality. If intervention is nonetheless justified on soft paternalistic grounds, that is presumably because the loss in individuality for those who would otherwise voluntarily engage in the behavior is outweighed by the gains for those who would otherwise nonvoluntarily engage in the behavior. Moreover, these gains to the nonvoluntary participants may not be related to individuality. (We can imagine, for instance, that many beneficiaries of the policy suffer from forms of impairment or incapacity that render them unable to achieve a significant degree of individuality in any case.) If such a policy can be justified on the grounds that it prevents many people from incurring nonvoluntary self-​harm, even though it interferes with the voluntary and informed choices of at least some others, then apparently one person’s individuality is not incomparably more important than any other (non-​individuality-​based) third-​party interest. And if one person’s individuality is not incomparably more important than any other third-​party interest, then it is unclear why this person’s individuality would be incomparably more important than any other of his own interests. So far, I  have been assuming that intervention in the self-​regarding sphere (virtually always) restricts individuality and asking whether this assumption would be sufficient to show that such intervention is (virtually always) contrary to the target’s best interest. I now want to turn my attention to the initial assumption. Why should we think that intervention in a person’s self-​regarding choices always compromises individuality? The short answer is that we should not, for at least two reasons. The first is that certain types of intervention are likely to have no effect on one’s ability to develop one’s unique capacities and talents. The development of individuality probably does require that we be free to make enough choices

51. See Goldman and Goldman (1990: 71–​76).

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for ourselves or that we be free to make certain types of choices for ourselves. But it probably does not require that we have maximal freedom to make our own choices (even within the domain of conduct not harmful to others). To appreciate this point, compare two cases. Suppose that a new brand of breakfast cereal has just become available at grocery stores near John. Although the cereal is not all that different from anything currently on the market, it does have a somewhat unique texture. The cereal is not, however, available at grocery stores near Paul. This is because the cereal contains some potentially dangerous food additive the use of which is prohibited in Paul’s society.52 Would these facts have any significant effect on the relative extent to which John and Paul are capable of developing their unique capacities? That seems difficult to believe. Part of the reason is that judgments of the extent to which a person possesses individuality are not plausibly made by considering the sheer number of options at his disposal or the sheer number of restrictions to which he is subject, especially when the options (or restrictions) in question seem fairly trivial. It is difficult to believe that individuality is compromised every time an option is eliminated or made more costly. Indeed, our options are sometimes affected by the operation of “natural” forces. An increase in the price of cigarettes, resulting from a tobacco blight, would appear to pose no great threat to our self-​development, even if it does effectively price some people out of the market. Why should we think any differently if the price of cigarettes were to increase as the result of a tax imposed for the purpose of deterring smoking? Of course, one might argue that taxes and other forms of deliberate interference are morally wrong because they seem insulting or violate rights. But these objections do not (or at least need not) appeal to individuality considered as a component of well-​being, and that is the issue we are now considering. A second point is that intervention may sometimes enhance or preserve our abilities to develop our distinctive capacities. Mill observes that liberty is a prerequisite of self-​development. But even if liberty is one prerequisite of self-​development, surely there are others. Indeed, Mill, citing von Humboldt, claims that both freedom and “variety of situations” are necessary for the “highest and most harmonious development” of one’s powers.53 Yet these prerequisites of self-​ development may sometimes come into conflict, since, left to his own devices, someone might behave in

52. Suppose, moreover, that the cereal John is able to purchase is clearly marked as containing this additive, so that there is no soft paternalistic argument in favor of intervention on John’s behalf. 53. Mill (1859: III.2, 261).

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[ 52 ]  In Our Best Interest

ways that radically reduce the options (“variety of situations”) he is likely to encounter going forward. Moreover, to fully and harmoniously develop one’s powers, one may also need a sufficiently long life span, reasonably good health, and reasonably well-​functioning deliberative, aesthetic, and moral capacities. Certain forms of imprudent behavior can jeopardize these goods: someone who dies in early adulthood, or suffers serious brain damage, may thereby be prevented from fully developing his distinctive powers.54 Thus, it may be worth sacrificing some freedom for the sake of other prerequisites of individuality, and if so, individuality does not speak univocally against paternalism. The points just made—​that intervention sometimes has no effect on individuality and sometimes enhances it—​can be strengthened. When we ask whether a law or policy compromises individuality, we should always consider the social forces that would have operated on people in the absence of the law or policy. In this regard, it is important to keep in mind that Mill identified two different threats to individuality: the “physical” coercion of law and the “moral coercion of public opinion.”55 Even if one is legally at liberty to behave as one likes, one may merely imitate others out of a desire to conform to social expectations.56 Law might thus be used to counteract the effects of “moral coercion.” For instance, intervention that makes it somewhat more difficult for people to engage in a “faddish” form of imprudent behavior may deter some of those drawn to the behav­ ior largely because of its popularity, without deterring very many of those drawn to the behavior because it is uniquely suitable to their character or temperament.57 If, as Mill believed, public opinion and apish imitation can 54. For a similar point, as applied to autonomy or freedom rather than individuality, see Scoccia (2000:  62), Archard (1994:  291–​92), Husak (1981:  35–​36), and Dworkin (1971: 33). As an extreme case, consider a policy that forbids people from voluntarily choosing to receive lobotomies that are not medically necessary: it would surely appear difficult to oppose such a policy by appealing to the value of self-​development. For this example, see Shafer-​Landau (2005: 170). Levy (2014: 298–​300) argues that in the medical context, very mild forms of coercion can sometimes enhance a patient’s ability to act on her unique conception of the good. 55. Mill (1859: I.9, 223). 56. Conly (2013: 58–​60) provides excellent discussion of this point and argues that we have a natural tendency to conform, independent of any social pressure. The further point made here is that our decisions may be affected by the social pressure of public opinion, even if we are free from legal coercion. 57. Consider the case of cigarettes during the middle of the twentieth century in the US. It seems likely that many people smoked simply because such behavior was expected of people in their position, or because it was popular, or because cigarettes were so heavily advertised. And it seems likely that the government could have deterred some of these people from smoking through relatively mild forms of intervention—​ for instance, through increasing the tax on tobacco products or prohibiting tobacco advertising.

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[ 53 ]

be as detrimental to individuality as liberty-​limiting policies can be, then the appeal to individuality may provide little basis for opposing policies that discourage thoughtlessly conformist behavior, especially if these policies help to preserve other pre​requisites of self-​development. Consider one final concern about individuality. Many critics of paternalism have argued that liberty has educative value, insofar as it enables people to learn from their mistakes. Unless people have the freedom to make self-​regarding mistakes and stand the consequences, the critic may argue, they will be unable to develop their powers of deliberation and choice.58 And the critic might be especially concerned that pro-​paternalism will leave people too little room to make mistakes. It may well be true that the development of individuality requires that people be allowed to make some mistakes. It is thus possible that a particular intervention, when considered in isolation, would be in the target’s best interest, even though, when considered in combination with further interventions that have been enacted, it would not be.59 Recognizing this possibility should not lead us to reject pro-​paternalism. If a particular policy, considered alongside others that have already been enacted, would leave some people with too little opportunity to learn from their mistakes and thereby stunt their self-​development, then this policy may be unjustified because it is contrary to the best interests of these people. Once again, however, it is difficult to believe that the cultivation of individuality requires that people be maximally free to make mistakes. There are some cases in which people are unlikely to learn from their mistakes, or in which the cost of their doing so is prohibitively high.60 (Consider the lifelong smoker who regrets his behavior once he contracts lung cancer.) Moreover, when people make choices that severely limit their future options, anything they learn may be of limited value, since there may be comparatively little scope for them to exercise their new insight. Indeed, to return to a point made earlier, if the cultivation of individuality were to require that people be maximally free to make mistakes, it would be adversely affected when people are deprived of the ability to make mistakes by the operation of “natural” factors. Yet this again seems absurd: if an extremely dangerous recreational drug were to become temporarily unavailable as the result of an agricultural blight, few of us would lament the fact that people now have somewhat less opportunity to make a mistake from which they could learn.

58. For a nice summary of this argument, see Feinberg (1986: 384n5). 59. See de Marneffe (2010: 87). 60. Conly (2013: 27, 67).

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[ 54 ]  In Our Best Interest

In sum, then, the pro-​paternalist need not deny that individuality is valuable. Instead, the pro-​paternalist can argue, first, that even if a person has an interest in achieving individuality, this interest is sometimes outweighed by his other interests and, second, that intervention in the self-​regarding sphere can sometimes promote or protect individuality. A similar sort of argument can likely accommodate other values that might be thought to make individuals’ lives go better. For instance, suppose that autonomy, considered as a condition or ideal that one might achieve, is a component of well-​being. Autonomy of this sort may differ from Millian individuality. Most would agree that in order to be autonomous, a person must chart his own course through life, making decisions from among a range of options in accordance with his own convictions and judgments of value.61 Some of Mill’s claims on behalf of individuality, however, emphasize the further idea that self-​development requires eccentricity or uniqueness—​that one ought to develop one’s unique powers and capacities. Autonomy may not require this.62 Still, the arguments advanced here seem relevant. Because it would be implausible to claim that autonomy is the only thing that is intrinsically good for a person, intervention might sometimes be in a person’s best interest even if it diminishes his autonomy. Moreover, intervention might sometimes have no effect on a person’s autonomy, as when it affects only trivial choices, and might sometimes even enhance autonomy, as when it preserves an adequate range of options or protects the intellectual abilities required for autonomous decision-​making.63

61. Raz (1986: chap. 14, esp. 369–​78) and Wall (1998: esp. 128). Note Raz’s claim that “[o]‌ne way in which [Raz’s] autonomy-​based doctrine of freedom  .  .  .  deviates from some liberal writings on the subject is in its ready embrace of various paternalistic measures” (1986: 422). 62. Some writers, including Arneson (1980: 475–​82) and Fuchs (2001: 236–​37), assimilate individuality to a notion of autonomy. Others, including Wall (1998:  129), clearly distinguish autonomy from individuality, on the grounds that Millian individuality requires “eccentricity” (though for the view that we should be careful not to overstate Mill’s reliance on eccentricity and uniqueness, see Ten [1980: 70–​71]). Note also that the teleological conception of autonomy under consideration differs from a deontological conception, according to which autonomy is a right of self-​sovereignty (on this contrast, see Scoccia [2000: 54–​55]). 63. Indeed, it is at least possible that an overly expansive range of options can be inimical to autonomy. Gordon-​Solmon (2017: 34–​35) argues that an expansion in one’s menu of options can sometimes leave one with greater space for regret, and that this in turn can prevent one from identifying with one’s choice in the way that autonomy requires. Perhaps more commonly, a very expansive set of options can simply be overwhelming, causing one to lose “confidence in one’s powers of discernment” (Gordon-​ Solmon [2017:  36]). Consider the experience of choosing from among hundreds of different items on a restaurant menu.

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My central aims in this chapter have been to further clarify pro-​paternalism and to show that it is not refuted by the sorts of consequentialist arguments often attributed to J. S. Mill. In one sense, the conclusions I have reached may simply confirm what many might have suspected all along: that the strongest objections to paternalism are likely to be nonconsequentialist, purporting to show not that paternalistic intervention always does more harm than good but, rather, that it is often wrong even when it would serve the target’s best interest (without wronging others). The preceding arguments are nonetheless significant, insofar as they address two complaints that seem to undergird a great deal of the antipathy commonly expressed toward paternalism. The first complaint is that paternalistic intervention “does not work.” The second is that a pro-​paternalist view would support government incursion into nearly every area of our lives. I hope that it is now clear that these two complaints are at odds with each other. Pro-​paternalism would justify pervasive government incursion only if the first complaint were false—​ that is, only if it were true that we very often make imprudent choices and that there is very often good reason to believe that intervention in such choices would be in our best interests. I have also argued that each complaint can be resisted in its own right. Mill and his sympathizers are correct to worry about the likelihood that the government will sometimes misapply, and sometimes simply abuse, powers that are given to it. But this seems to be a point about government power, not a point specifically about paternalism. Pro-​paternalism, as I have stressed, is a moral position about the weight and relevance of a certain class of reasons, not a political program that grants the government unlimited license to interfere in its citizens’ affairs. We can accept institutional constraints on the government’s ability to interfere without thereby abandoning pro-​paternalism. Moreover, there is no consequentialist reason to suppose that these institutional constraints should rule out all intervention in the self-​regarding sphere. We can almost surely identify some types of intervention that are likely to advance important interests while posing little, if any, risk to self-​development. Consequentialist arguments, then, challenge neither the truth nor the practical significance of pro-​paternalism. If so, then it becomes all the more important to critically assess nonconsequentialist arguments against paternalism. In the following chapters, I consider several objections of this sort, beginning with the objection that paternalism is insulting or disrespectful.

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CHAPTER 3

Insult and Equality

I

n order to argue against pro-​paternalism, a critic must explain how a person can be wronged by intervention that is in her best interest. One possible explanation, prominent in the recent literature, appeals to the idea that intervention in a person’s self-​regarding choices may be objectionably insulting or demeaning. Even if others know what would be good for me—​and, indeed, even if I  recognize that others know what would be good for me—​their paternalistic involvement may sometimes carry a special sting. Paternalism, as the name suggests, seems to treat adults as though they are children, and the adults so treated might feel patronized. As Elizabeth Anderson brusquely puts it, paternalism seems to imply that its targets are “too stupid” to make their own decisions.1 Taking their cue from this thought, several recent critics have argued that paternalism is insulting because it is prompted by, or expressive of, distrust in the target and her prudential abilities.2 As we shall see, however, there are several different ways in which anti-​paternalists have developed what I shall call the insult objection. The insult objection is best regarded as a stand-​alone objection to paternalism—​one that, if successful, would by itself show that at least some of the intervention supported by pro-​paternalism is morally wrong. Of course, if there is a compelling non-​insult-​based objection to pro-​ paternalism and the intervention it supports, then people may have good reasons to be insulted by such intervention. But in this case, concerns 1. Anderson (1999: 330). 2. For several prominent examples, see Cornell (2015: 1315–​18), Tsai (2014: 85–​89), Quong (2011: 80–​83), and Shiffrin (2000: 213–​20).

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[ 57 ]

about insult would presumably not provide the fundamental objection to paternalism. (Likewise, though a victim of assault might be insulted by the actions of her attacker, it may be implausible to claim that assault is wrong primarily because it is insulting in this way.) The question, then, is not whether paternalism is insulting because it is wrong on some other, independent basis; instead, the question is whether intervention that secures a person’s best interest might sometimes wrong her simply because it is insulting. Proponents of the insult objection typically claim that it explains why we ought to be concerned about some forms of apparently paternalistic behavior that do not limit anyone’s liberty and may not even be contrary to anyone’s will. As we saw in c­ hapter  1, some argue that it can be paternalistic to give a person incentives to engage in prudent behavior: suppose that one offers to take a friend out to a fancy dinner if, but only if, she finishes writing her paper this afternoon.3 According to many proponents of the insult objection, such behavior is likely to be insulting, to at least some extent, if it is motivated by distrust in the target’s abilities to make and execute prudent decisions. To be sure, the insult objection as typically developed is not necessarily intended to support an absolutist anti-​paternalist position:  proponents of the objection might concede that it is sometimes permissible to intervene in a person’s affairs, for her own good.4 My goal, however, is to argue that the insult objection does not require any departure from the pro-​ paternalist view I have been defending. In order to determine whether the insult objection is successful, we must first recognize precisely what it would need to show in order to refute pro-​paternalism. I thus begin by explaining how defenders of paternalism can easily accommodate a number of concerns about its putatively insulting character (section 3.1). I then critically evaluate the motive-​based version of the insult objection, which focuses on the supposedly problematic motives of the paternalistic agent (section 3.2), and the closely related expressive version of the insult objection, according to which paternalistic behavior expresses something insulting (section 3.3). Finally, I respond to an argument purporting to show that paternalistic interference denies the moral equality of its targets (section 3.4).

3. For this sort of example, see Quong (2011: 75). 4. See, for instance, Cornell (2015: 1321–​24), Tsai (2014: 81), Quong (2011: 102), and Shiffrin (2000: 220n25).

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[ 58 ]  In Our Best Interest 3.1 THREE PRELIMINARY REPLIES

There are three ways in which apparently paternalistic behavior might be objectionably insulting even by the pro-​paternalist’s own lights. First, paternalistic behavior, like many other forms of behavior, might be objectionably insulting because it is carried out in an unnecessarily disrespectful or inconsiderate way. Consider, for instance, a paternalistic agent who explicitly tells the target that she is too stupid to make her own decisions, or who intervenes in a more forceful way than is necessary to prevent self-​harm, or who generally does what he can to make the target feel badly about herself. Such an agent surely behaves objectionably, but this reveals little about the moral status of paternalism. To see why, compare a case in which a police officer pulls over a motorist for driving ten miles per hour over the speed limit and then launches into an unprovoked tirade, in the course of which he calls the driver “stupid” and “incompetent.” Clearly there is something objectionable about the police officer’s behavior. But equally clearly, the objectionable character of the officer’s behavior does not impugn speed limit laws (or any moral principle that might be thought to justify them). At least in most circumstances, it is wrong for someone to go out of his way to cause another person to feel insulted, “to no purpose.”5 This is true of paternalistic intervention, just as it is true of other forms of intervention. Second, paternalistic intervention is insulting when it is carried out in an arbitrarily discriminatory manner. Imagine, for instance, that legal steps are taken to deter members of one racial group, but not another, from engaging in some particular self-​harmful behavior. Such a policy would certainly be objectionable, but the most obvious objection to it would center on the fact that it is arbitrarily discriminatory. It would also be objectionable if people accused of theft were treated differently depending on their race, but this would not show that there is anything wrong with laws prohibiting theft.6 5. Arneson (2015: 675). 6. In his defense of the insult objection, Cornell maintains that “government paternalism that picks out a particular subset of the citizenry (for example, the poor or the Native American) is more apt to be objectionably paternalistic” (2015: 1327). Although such a policy probably is more apt to be objectionable, it is not clear that the objection to it has anything to do with its putatively paternalistic character. Suppose, for example, that the government prohibits the sale of tobacco only to people of a particular racial minority. The pro-​paternalist has ample grounds on which to criticize this policy. First, if the policy is in the best interests of (enough) members of the racial minority, then presumably it would be in the best interests of (enough) other citizens as well, and thus a broader, nondiscriminatory policy should be adopted. Second, recall that a policy is in someone’s best interest only if there is no alternative policy that would advance her interests to a greater extent without imposing additional costs on others.

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[ 59 ]

Finally, pro-​paternalists can acknowledge that intervention is sometimes experienced as insulting and that, when it is, the target’s feelings of insult are instrumentally relevant, insofar as they affect whether the intervention would be effective or would be in her best interest. In this way, pro-​paternalism is consistent with the possibility that an otherwise permissible intervention might be rendered impermissible by its putatively insulting character. To appreciate this point, consider an example. Suppose that while you and I are at a restaurant, I order a dish that is considerably spicier than the food I normally eat. As you know from experience, I frequently make such adventurous decisions when we go out to eat, and I almost always regret them. While I excuse myself to make a phone call, you have the opportunity to change my order with the waiter. Now even if you are right that I would not have enjoyed the food I originally ordered, you may also know that I am likely to feel greatly insulted by your interference. Once I learn what you did, I may cut our dinner short or spend the rest of the meal glowering at you over the entrée you benevolently ordered for me. In this case, because your intervention will ruin what otherwise would have been a pleasant evening, you should not interfere. The reason you should not interfere—​or at least one reason you should not interfere—​is that doing so would not be in my best interest. And if interference would not be in my best interest, then it cannot be fully justified on solely paternalistic grounds.7 The more general lesson here is that if insult is construed subjectively, as a mere feeling, then it can simply be counted as one cost of intervention.8 Assuming that people have interests in being free from arbitrary discrimination—​or at the very least in avoiding the psychological distress or stigma typically produced by arbitrary discrimination—​the discriminatory policy would not advance the interests of the members of the minority group as effectively as a nondiscriminatory policy that applies to all. And if the discrimination really is arbitrary, then the nondiscriminatory policy would not impose any additional net costs on others. There is one final point worth making. It may be natural to suppose that a policy is especially wrong if it arbitrarily “picks out” a traditionally marginalized group for paternalistic restriction. In many cases, however, it would also be insulting for the government to exempt such groups from restrictions that would promote their interests. For instance, if the government were to prohibit the sale of cigarettes to whites, but not blacks, it would probably thereby send an objectionable message about the moral status of blacks—​namely, that their health is less important, that their interests matter less, and so forth. 7. If your interference serves one of my interests, but is not in my best interest, then the respects in which it benefits me might count, along with the respects in which it benefits others, as part of a “mixed” rationale in favor of intervention. I set aside this possibility, since I here assume that your intervention does not have any significant effects on third parties. 8. Wall (2014: 482–​83) makes a somewhat similar point about the experience of “expressive subordination.”

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There are in fact a number of ways in which the target’s feelings of offense or insult may be instrumentally relevant. In some cases, benevolent intervention will be successful only with the target’s subsequent cooperation. (Perhaps some medical treatment will be effective only if the patient chooses to take a recommended medication.) If the target feels insulted by the way in which the agent has treated her, she may be less likely to cooperate. Likewise, if a friend paternalistically intervenes in one’s affairs in a way that one finds insulting, then one may be more likely to terminate a mutually valuable friendship. The common feature of these concerns is that they merely point to the likelihood that, over the long run, intervention is likely to backfire or run counter to the target’s best interest. Pro-​paternalists can be sensitive to this possibility. In order to refute pro-​paternalism, then, it is not sufficient to show that certain behaviors that might commonly be called “paternalistic” are objectionably insulting. Instead, a successful version of the insult objection must apply even to forms of paternalistic involvement that are not gratuitously insulting or arbitrarily discriminatory, and it must show that concerns about insult are more than merely instrumentally relevant.

3.2 THE MOTIVE-​B ASED OBJECTION

Once these points are kept in mind, why should we think that paternalism is objectionably insulting? One possible answer appeals to the motives of the paternalistic agent. Seana Shiffrin claims that the paternalistic agent regards his judgment or agency as in some respect “superior to” the target’s own judgment or agency, with respect to the target’s interests or other “matters that legitimately lie within [the target’s] control.”9 And on Shiffrin’s view, it is this motive that explains why paternalism “delivers a special sort of insult”: Even when paternalistic behavior does not violate a distinct, independent autonomy right, it still manifests an attitude of disrespect toward highly salient qualities of the autonomous agent. The essential motive behind a paternalistic act evinces a failure to respect either the capacity of the agent to judge, the capacity of the agent to act, or the propriety of the agent’s exerting control over a sphere that is legitimately her domain. Even if no distinct autonomy right is

9. Shiffrin (2000: 218). One consequence of Shiffrin’s account is that behavior aimed at matters that legitimately lie within the target’s control can be paternalistic, even if it is not intended to promote the target’s interests.

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violated, the paternalist's attitude shows significant disrespect for those core capacities or powers of the agent that underwrite and characterize his autonomous agency.10

Other philosophers who reject some details of Shiffrin’s account nonetheless agree that paternalism is objectionable insofar as it is motivated by distrust of the target’s competence or abilities.11 Notice again that, as the passage indicates, Shiffrin’s objection to paternalism applies broadly to any behavior that exemplifies the relevant attitude of distrust; the objection does not apply exclusively to coercive or liberty-​limiting behavior of the sort that might violate an independent “autonomy right.” The motive-​based objection faces two serious problems. First, it is not obvious how it can be applied to policy contexts, since it may be difficult to identify the motives of a government, legislature, or other deliberative body. The problem here is not merely the epistemic one that we cannot always determine why people act as they do. Instead, the problem is that even if we had perfect knowledge of the motives of each relevant individual, any policy is likely to be supported for a variety of different reasons.12 Some legislators may support a policy that imposes restrictions on apparently imprudent behavior out of paternalistic concern for those who would otherwise engage in such behavior. But other legislators may support the policy because they personally disapprove of the behavior it regulates, or because they believe (perhaps mistakenly) that the behavior poses a risk of harm to others, or because they believe that the policy will raise much-​needed revenues, or because they believe that voting for the policy is likely to get them reelected, or for different combinations of such reasons. (Consider, for instance, the hodge-​podge of reasons that might explain the popularity of certain types of anti-​drug laws.) Under these circumstances, it is difficult to identify the motive behind the policy, and thus, according to the motive-​ based account, difficult to assess whether the policy is objectionable in the way supposedly characteristic of paternalism.13 10. Shiffrin (2000: 220). 11. See, e.g., Tsai (2014: 86–​87) and Groll (2012: 718). 12. Dworkin (1971: 20). 13. See Cornell (2015: 1313) and Husak (2003: 390–​91). Le Grand and New suggest that we should focus not on the government’s (or paternalistic agent’s) actual motives, but rather on “what would be the most plausible rationale for a law” (2015:  26); a similar view appears to be taken by Feinberg (1986:  17) and is suggested by Husak (2003: 392). This latter suggestion might be attractive when used to explain why we do (or do not) classify various laws as paternalistic (which appears to be Le Grand and New’s central aim). But it would be of little use in defending the motive-​based account of the insult objection, since the most plausible rationale for a law may be very

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One might attempt to sidestep this problem by arguing that the motive-​ based objection is intended to apply only to interpersonal contexts, and not to policy contexts or institutional settings.14 This restriction in scope seems unsatisfying, however, since virtually all anti-​paternalists condemn some policies on the grounds that they are objectionably paternalistic. We might thus expect the central objections to interpersonal paternalism to apply also to policy contexts. Moreover, it might sometimes be difficult to neatly distinguish interpersonal paternalism and institutional paternalism. Suppose, for instance, that a hospital’s board of directors passes an apparently paternalistic policy to be obeyed by doctors in their interactions with patients. On the one hand, the doctor–​patient relationship would appear to be the sort of interpersonal context to which the motive-​based objection would apply.15 On the other hand, in their apparently paternalistic interactions with patients, doctors may be motivated only by a desire to comply with hospital policy. Perhaps it will be argued that what matters for moral purposes is whether the majority of people who pass or support some policy are motivated by paternalistic considerations. Yet if the passage or enactment of the policy still requires the support of many people who endorse it only for paternalistic reasons, it would be odd for proponents of the motive-​based objection to conclude that the motives of these supporters provide no objection whatsoever to the policy. Perhaps some defenders of the motive-​based objection would hold that a policy is objectionably paternalistic so long as someone whose support was necessary for its passage supports it for paternalistic reasons.16 Imagine, however, that there is a decisive nonpaternalistic rationale in favor of the policy and that it is in fact supported by most people for wholly nonpaternalistic reasons. Why would it be any objection to the policy that its passage required the support of one person who was motivated by paternalistic considerations? Perhaps there is a more promising response to the problem of attributing motives to legislatures and other collectives. One might argue that even

different from the rationale that in fact motivates people to support it—​a point made by de Marneffe (2006: 77). 14. Tsai (2014: 80) focuses only on interpersonal paternalism, while leaving open the possibility that his account applies to paternalistic policies. Shiffrin (2000), by contrast, appears to intend her account to apply both to interpersonal and policy contexts, as one of her central aims is to show that there is a good nonpaternalistic defense of the unconscionability doctrine in contract law. 15. Groll (2014b: 199). 16. De Marneffe (2006: 74n16) suggests a similar view, in considering the conditions under which a policy is appropriately classified as paternalistic.

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if we can rarely identify distrust in individuals’ prudential abilities as the motive of a legislature (or other collective), we can at least sometimes identify such distrust as a motive. And perhaps we can conclude that, all else equal, a policy is more objectionable the stronger this motive is or the more people in the political process are influenced by it.17 This suggestion raises problems of its own, however. Suppose that a policy originally adopted ten years ago is now up for renewal. Ten years ago, when the policy was first enacted, 60 percent of people in the relevant political process supported it for wholly nonpaternalistic reasons, 20 percent strongly opposed it, and another 20 percent had no strong view one way or the other. (Perhaps this last 20 percent simply did not cast a vote.) Today, 60 percent still support the policy for wholly nonpaternalistic reasons, and another 20 percent still oppose the policy. The difference is that the final 20  percent now support the policy for wholly paternalistic reasons. The proposal we are considering, according to which a policy is more objectionable the more it is motivated by paternalistic aims, seems to imply that there is now a weighty objection to the policy that did not apply ten years ago, when no one supported the policy for paternalistic reasons. This conclusion seems difficult to accept, however. After all, we can imagine that the only change in the past ten years is that people are now more tolerant of paternalism; perhaps this is why the final 20 percent now support the policy for paternalistic reasons. Surely this difference should not make the policy more difficult to justify than it was before, when even fewer people supported it.18 This takes us to a second, and perhaps more fundamental, challenge to the motive-​based objection: it is unclear how an agent’s motives can affect the permissibility of his behavior in the way that the objection envisions. This concern is closely related to the argument, commonly offered against the doctrine of double effect, that intention is irrelevant to permissibility.19 17. I am grateful to Jonathan Quong for suggesting this possible response. 18. To be sure, the proposal we are considering holds that, all else equal, a policy is more objectionable the more it is motivated by distrust in individuals’ prudential abilities. Perhaps all else is not equal across the two times in our example. One might argue that, compared to the situation ten years ago, it is now a consideration against the policy that it is retained at least partly for paternalistic reasons, while it is a consideration for the policy that more people support it. It seems hard to accept this combination of claims, however, given that the increased support comes entirely from people who (ex hypothesi) are motivated by the supposedly problematic attitude of distrust. Thus, the motive-​based proposal we are considering would seem to imply that the policy is now more objectionable, all things considered, than it was ten years ago. 19.  Cornell (2015:  1309–​ 14) similarly draws on the double effect literature in challenging Shiffrin’s motive-​based objection to paternalism. For two prominent statements of the view that intention is irrelevant to permissibility, see Thomson (1991:  293) and Scanlon (2008:  chap.  1). Scanlon holds only that intention is not

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To appreciate how this concern may arise in the context of paternalism, consider an example. Suppose that Sam wants to know whether he may forcibly prevent Elizabeth from committing suicide by jumping from the top of a building located in an area of town crowded with pedestrians on their way to work. And suppose we reply that whether it is permissible for Sam to intervene depends on what his motives would be:  if Sam would intervene out of a legitimate nonpaternalistic concern for the innocent pedestrians beneath the building, who may be injured by a collision with the falling Elizabeth, then his act would be permissible; but if he would intervene only out of a paternalistic concern for Elizabeth, then his act would be impermissible (or at least more difficult to justify). Such advice may strike us as odd. As Judith Jarvis Thomson observes, it seems odd to think that in order to determine whether one’s behavior would be permissible, one ought to “look inward” to one’s intentions.20 Indeed, many anti-​paternalists have good reason to agree that one’s motives are not directly relevant to the permissibility of one’s behavior. Shiffrin’s discussion of paternalism is embedded in her defense of the unconscionability doctrine in contract law, which permits courts to refrain from enforcing one-​sided or unfair contracts. Although this doctrine is often considered to be paternalistic, Shiffrin argues that it can be justified on the nonpaternalistic grounds that the state should not make itself complicit in unfairness.21 Yet even if there is a perfectly good nonpaternalistic rationale for a policy or legal doctrine, the agents responsible for adopting the policy or applying the doctrine may in fact be motivated by alternative, paternalistic rationales.22 More generally, if the central objection to paternalistic behavior is that it is prompted by a certain sort of motive, then a policy could be acquitted of the charge of paternalism only if its defenders could show that those responsible for the policy are not in fact motivated by paternalistic considerations. Yet anti-​paternalists rarely address this empirical issue, even when defending policies that are sometimes considered to be paternalistic. directly relevant to permissibility. It may be indirectly relevant, on his view. Suppose that your friend is in the hospital and that you have an obligation to visit her and cheer her up. If you visit her, say, only in order to appease your mother, then you may fail to do what it is that you are obligated to do, since your motivations might make it unlikely that you will in fact succeed in cheering your friend. Moreover, even if intentions are not directly relevant to permissibility, they may be directly relevant for other purposes—​for instance, for the purposes of evaluating the agent’s character, or assessing the quality of his relations with others. 20. Thomson (1991: 293). 21. Shiffrin (2000: esp. 221–​30). 22. De Marneffe (2006: 71) presses this point against Shiffrin’s view.

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To be sure, some proponents of the doctrine of double effect do claim that intention is relevant to permissibility, and they may be unmoved by the argument so far.23 It is important to recognize, however, that the motives condemned by the anti-​paternalist objection under consideration are importantly different from the intentions condemned by the doctrine of double effect. Most proponents of double effect condemn intentions to harm others, even for otherwise worthy goals. Thus, they argue, it is wrong for the terrorist bomber to intend the deaths of innocent civilians, even as a means to the (laudable) goal of hastening the end of war. Though we might disagree about whether such an intention is relevant to the permissibility of the agent’s behavior, many of us would agree that, at the very least, it reflects poorly on the agent. By contrast, what the paternalistic agent intends is presumably to benefit his target.24 The motive-​based objection does not focus on this intention (which, after all, seems rather unobjectionable). Instead, the motive-​based objection focuses on the paternalistic agent’s “attitude” of distrust.25 This attitude appears to consist in the paternalistic agent’s belief that, left to her own devices, the target is likely to behave imprudently. But it is far from clear why it would reflect poorly on the agent that he holds this belief (at least if it is justified). In response to this point, one might argue that while it does not reflect poorly on someone that he holds such a belief, it may nonetheless be (at least pro tanto) wrong to act on it. But if anything, this claim highlights the contrast between the motive-​based objection and the doctrine of double effect. For proponents 23. See Nelkin and Rickless (2014: 143), Wedgwood (2011), and Lippert-​R asmussen (2010: esp. 553–​63). 24.  Notice that the paternalistic agent need not intend to override the target’s judgment, since the agent could still achieve his goal (indeed, could perhaps achieve it even more easily) if the target were to consent to his behavior. Against this point, a critic might argue that because a paternalistic agent is willing to benefit the target by intervening in ways that a strictly anti-​paternalist agent would not, there must be some difference between the intentions of the two agents. While there is obviously some difference in the motivations or normative beliefs of the two agents, however, this difference does not seem to involve their intentions, at least not if we understand intentions in the way that they are commonly understood in the debate over the doctrine of double effect. Consider an analogy. Suppose that Tactical Bomber 1 plans to bomb a munitions factory in enemy territory, even though she foresees that doing so will cause 1,000 side-​effect deaths. Suppose that Tactical Bomber 2 would be unwilling to undertake this mission, because he believes that the number of side-​effect deaths is too high and thus disproportionate. Now obviously there is a difference between the two tactical bombers. But this does not show that Tactical Bomber 1 intends the deaths of the civilians; after all, she may well be happy if the civilians evacuate the area just prior to the bombing. Likewise, the fact that a paternalistic agent is prepared to intervene without the target’s consent or approval does not show that he strictly intends to override the target’s judgment. 25. See Shiffrin (2000: 220), Tsai (2014: 86), and Groll (2012: 718).

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of that doctrine would presumably argue that it is wrong for one to act on an illicit intention because there is something morally unsavory about this intention itself.26 By contrast, the reply we are considering holds that while there may be nothing objectionable about a (true or justified) belief that another person is likely to act imprudently, it is (at least pro tanto) wrong to act on this belief. Whereas proponents of double effect can, with at least some plausibility, appeal to our intuitive aversion to the intention to harm, it is not clear that we ought to have any similar aversion to the paternalistic agent’s beliefs, at least when they are true or justified.27 There is one final point worth making about the relevance of motive to permissibility:  motives that many anti-​paternalists find unobjectionable may sometimes depend on the motive of distrust condemned by the objection we have been considering. Suppose that Alice asks her friend Bruce for $50. Bruce refuses to give Alice the money because he is concerned for Alice’s well-​being and believes (justifiably, let us suppose) that Alice will use the money to support her self-​destructive heroin habit.28 As we have seen, defenders of the motive-​based objection would claim that such a paternalistic omission is (to at least some extent) morally objectionable. But this is not because they believe that Bruce is obligated to give Alice the money. Instead, they would conclude that although it is to at least some extent objectionable for Bruce to refuse out of consideration for Alice’s interests, it is (or may be) wholly unobjectionable for Bruce to refuse for other reasons. What other reasons? One answer is that an agent such as Bruce may want keep his own hands clean and avoid facilitating or enabling Alice’s imprudent behavior. Thus, Shiffrin claims that “it would not be paternalistic (and may be morally required) for me to refuse to buy you cigarettes . . . if my motive for refusal is that I think that I should not perform substantial actions that contribute to your addiction or illness.”29 Bruce might then refuse to help Alice not because he has other plans for the money—​perhaps he would be glad to lend Alice $50 for some other purpose—​but, rather, because he does not want to implicate himself in Alice’s self-​destructive plans. Although this motive is nonpaternalistic, we might ask whether it can be completely severed from the supposedly objectionable attitude of distrust. And there is good reason to think that it cannot. An agent’s belief that

26. See, for instance, Nagel (1986: 181–​82). 27.  Enoch (2016) criticizes some motive-​based accounts, such as Shiffrin’s and Quong’s, on grounds similar to those just described, though he goes on to briefly suggest an alternative route to anti-​paternalism. 28. For this example, see Quong (2011: 79–​80). 29. Shiffrin (2000: 224, emphasis in original).

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he would acquire “dirty hands” by facilitating someone’s self-​destructive behavior is obviously dependent on the belief that this other person’s preferred course of action is in fact self-​destructive. And it is the latter sort of belief (or actions prompted by it) that the motive-​based objection deems problematic. Put another way, if an agent is motivated by a desire to avoid implicating himself in another’s self-​destructive behavior, then he is also motivated by a judgment that this other person has exercised (or is likely to exercise) poor prudential decision-​making.30 After all, an agent who did not make this latter judgment would not believe that assisting the other person in carrying out her plans would involve him as a party to self-​destructive behavior. If it is not objectionably insulting for one to be motivated by distrust in another person’s prudential abilities when one ultimately aims to avoid implicating oneself in that person’s imprudent behavior, we might wonder why it would be objectionably insulting for one to be motivated by such distrust when one aims simply to benefit the other person—​especially if there is nothing itself objectionable about the desire to benefit others. While I  hope to have raised some serious concerns about the motive-​ based insult objection, perhaps more could be said in its defense. Nonetheless, I want to turn now to a different version of the insult objection, though we should keep in mind that the questions it raises may reveal further challenges for the motive-​based account.

3.3 THE EXPRESSIVE OBJECTION

According to what I shall call the expressive version of the insult objection, paternalistic intervention is objectionable, when it is, because it expresses or conveys an insulting message. As Nicolas Cornell puts this point, paternalistic acts and policies “imply that the actor knows better than the subject with regard to a matter within the subject’s sphere of control, and paternalistic actions are impermissible insofar as this expression is offensive.”31 The 30. Shiffrin seems at least somewhat sensitive to the concern raised above, but her response to it raises problems of its own. She claims that it would not be paternalistic for Bruce to refuse to assist Alice out of a self-​regarding desire to avoid contributing to Alice’s “detrimental plans.” In such a case, Shiffrin claims, Bruce’s “motivation would be to implement [his] own autonomous judgment about matters properly [his] own, namely [his] own welfare, energies, and projects” (2000: 226). It is at least arguable, however, that a similar point could be made even about the case in which Bruce refuses to help solely out of concern for Alice: after all, in refusing to lend her the money, Bruce is simply exercising autonomous judgment about how to use resources that properly belong to him. For criticism of Shiffrin on this score, see Mills (2013:  451–​52) and Quong (2011: 80n19). 31. Cornell (2015: 1315).

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expressive objection is distinct from the motive-​based objection, since the expressive meaning of an act does not necessarily match the motives that prompt it. For instance, one might show disrespect to a lecturer by laughing throughout her presentation, even if one does not intend to insult her and is instead merely thinking of a funny joke. Likewise, one might insult a friend by wearing workout clothes to her formal wedding, even if one is motivated only by considerations of comfort and does not intend any disrespect.32 In many cases, however, there is a close connection between an act’s meaning and the agent’s motives.33 Indeed, defenders of the motive-​ based objection sometimes seem to appeal to expressive considerations. Thus, Shiffrin claims that paternalism “delivers a special sort of insult” and “expresses insufficient respect” for the capacities of autonomous agents.34 Proponents of the expressive objection may disagree about whether paternalistic behavior always expresses an insulting message, or whether it does so only sometimes. The second possibility seems far more plausible. Laws requiring the use of seat belts presumably express something: for instance, they may express approval of seat belt use. As some defenders of the insult-​based objection agree, however, it is far from clear that such laws express an insulting judgment.35 A similar point, I suspect, could be made about many other acts and policies that are sometimes judged to be paternalistic. Of course, even if some such acts and policies do not express an insulting message, others might. In assessing the expressive objection, it is worth distinguishing two different ways in which an act or policy might be thought insulting. First, an act or policy might be insulting in the sense that it causes someone to feel insulted. Thus, an instructor who assigns a poor (but appropriate) grade to a student’s work might thereby send an insulting message, insofar as the grade provokes the student’s (perhaps unreasonable) feelings of insult. Second, an act or policy might be insulting in the more objective sense that it expresses something disrespectful, even if it does not provoke any feelings of insult. Thus, it might be insulting to make fun of a person behind her back, even if she will never find out. Likewise, racist symbols may be insulting, even if they never provoke feelings of insult (say, because they are displayed only in private, or because members of the targeted group suffer from severe forms of false consciousness).

32. For a similar example, see Cornell (2015: 1319). 33. See Scanlon (2008: 39–​40, 52). 34.  Shiffrin (2000:  220, emphasis added). Tsai (2014:  86–​88) likewise claims that paternalism “conveys” an insulting message. 35. On the case of seat belts, see Cornell (2015: 1322) and Anderson (1999: 301).

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It seems that the most plausible version of the expressive objection will appeal to insult in the second, more objective, sense.36 To be sure, the fact that an act or policy leads people to feel insulted may be relevant for the sorts of instrumental reasons described in section 3.1. But when intervention is in a person’s best interest, it is unclear why the fact that it merely causes her to (perhaps unreasonably) feel insulted would show that it wrongs her. We should be careful, however, not to overstate or misunderstand the sense in which the second notion of insult is objective. As we have seen, the insult objection would become superfluous if, in the course of explaining why paternalism is insulting, one were to appeal to some independent, non-​insult-​based wrong.37 For the insult objection to retain its appeal as a stand-​alone objection to paternalism, then, one must argue that paternalism is wrong primarily because of its insulting character. And according to the proposal under consideration, this is because paternalistic acts and policies often express a message that is in fact disrespectful, where the reason for judging the message to be disrespectful is not merely that it causes someone to feel insulted. The expressive meaning of any given act or policy is likely to depend on background expectations, social conventions, and other contingent contextual features.38 Consider a simple illustration. Imagine that a university adopts a new policy under which faculty members are required to monitor students during exams in order to deter cheating. Would this policy express an insulting message? Well, that might depend. If faculty members at the university have traditionally refrained from monitoring exams and expected students to abide by an honor code, as some military academies do, then the new policy may well seem to express a judgment that students cannot be trusted, and this judgment may well seem insulting. (One can easily imagine the complaints:  “Don’t they trust us anymore?”) On the

36. A similar point is made by de Marneffe (2006: 80). 37.  I  believe that a problem of roughly this sort affects a view defended by Raz (1996:  122–​28). Raz claims that coercive paternalism is permissible only when the target trusts the agent. The conception of trust on which this argument relies is not entirely clear. Nonetheless, Raz (1996: 124) is clear that not just any trust is sufficient; the trust must be reasonable. If so, however, we might wonder whether the important issue is not whether the target actually trusts the agent, but instead whether it is reasonable for her to do so. And the worry then is that trust will play no independent role in opposing paternalism. Raz resists this conclusion. Nonetheless, if we are to ignore a target’s unreasonable attitude of trust, it is not clear why we should pay heed to the target’s unreasonable attitude of distrust (or lack of trust). I lack the space to fully consider Raz’s view here. For critical assessment, see Clarke (2013). 38. See Cornell (2015: 1317–​18).

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other hand, if most faculty members already monitor exams, so that the policy essentially just formalizes existing practice, then it is not likely to seem insulting. (Students at most universities rarely complain about the fact that exams are monitored.) Of course, if the former sort of university adopts the new policy, then it will over time come to be like the latter sort of university, and the policy will likely cease to seem insulting. The fact that the expressive meaning of a policy is likely to be influenced by contingent and variable contextual features may pose a problem for the anti-​paternalist line of argument we are now considering. For as the previous example suggests, even if a policy expresses an insulting message in the short term, this expressive meaning may fade as the policy becomes accepted. Indeed, one striking feature of the public debate over paternalism is that it often seems to display a status quo bias: people are more favorably disposed toward liberty-​limiting policies that have already been enacted than they are toward apparently similar liberty-​limiting policies that have not yet been enacted. When New York City proposed restricting the sale of soda in containers larger than sixteen ounces, many critics complained about overreach by the “nanny state.” It is not clear, however, that these critics were likewise prepared to condemn laws requiring drivers to wear seat belts. Why not? After all, seat belt laws were once controversial. Part of the reason they are no longer controversial, I suspect, is that we have simply gotten used to them: seat belt laws are now old news, and most of us simply take them for granted. Such laws are no longer (if they ever were) regarded as expressing distrust in citizens or their abilities to make prudent choices. By the same token, however, had New York’s proposed soda policy been successful, it is quite likely that, decades hence, people would feel much the same way about it.39 If the expressive meaning of paternalistic acts and policies depends on contingent and context-​dependent factors in the way just described, the expressive objection may lose much of its appeal. It would be unsatisfying, to say the least, if the anti-​paternalist were to concede that her central objection to some proposed paternalistic policy is likely to vanish once the policy becomes entrenched. Nonetheless, I now want to set aside the problems discussed so far and assume that paternalistic behavior often does express distrust in the target or her abilities. Even if this assumption is granted, the expressive objection still faces a serious problem. It is not clear why the message supposedly expressed by paternalistic acts and policies—​the message that the paternalistic agent

39. Conly (2013: 131).

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“knows better than the subject with regard to a matter within the subject’s sphere of control”—​should be thought insulting or disrespectful, if the agent really does know better than the subject.40 Notice, for instance, that we probably would not object to the behavior of someone who merely says that another person is likely to make an imprudent choice, at least when this is true. Why, then, should we object to other behavior on the grounds that it expresses this message? In response to this point, one might observe that it sometimes seems insulting for one person to express a true judgment about another. For instance, it may seem objectionable for one to approach an overweight stranger and provide her with advice on how to improve her diet, even if there is good reason to believe that she has a poor diet.41 And if such behavior seems objectionable, that is likely because it is insulting and not for some further, non-​insult-​based reason. Reflection on this sort of case may be thought to support the expressive objection to paternalism. On inspection, however, this example hurts the anti-​paternalist’s cause as much as it helps. First, it is not clear that it is impermissible (as opposed to merely impolite) to explicitly tell others that they are behaving imprudently, especially when doing so is in their best interests (because, say, it would result in their behaving more prudently).42 And if it is not impermissible to explicitly tell others that they are behaving imprudently, it is not at all clear why a paternalistic agent’s behavior should be thought 40. This problem, which again resembles that discussed by Enoch (2016), may be especially severe for the view defended in Cornell (2015). Cornell argues that although paternalism is often insulting, it is not always insulting. As he puts it, if we possess appropriate humility, “we should be willing to accept some implicit questioning or criticisms of our judgment” (Cornell [2015:  1321, emphasis added]), and we should thus conclude that there is some paternalism that we “cannot reasonably complain about” (2015:  1323, emphasis added). One obvious question here is how we are to distinguish the cases in which we should be willing to accept some criticism of our judgment from those in which we should not be so willing. In this regard, appeals to humility may not be all that helpful. It may be that someone possessed of appropriate humility would always be willing to accept some implicit criticism, especially when this criticism is both true and benevolently motivated. 41. Similar examples are discussed in Cornell (2015: 1324). 42. For instance, Cornell compares insulting someone by pointing out her (genuine) imperfections with insulting the Queen by (truthfully) telling her that she has a stain on her clothes (2015: 1325). But it is far from clear that such a comment, directed at the Queen, would be morally impermissible, even if it does violate conventions of politeness. Indeed, Mill argued that we ought to warn people of the likely consequences of their imprudent behavior, even if doing so would be considered impolite: “It would be well, indeed, if this good office [of warning others of the possible consequences of their behavior] were much more freely rendered than the common notions of politeness at present permit, and if one person could honestly point out to another that he thinks him in fault, without being considered unmannerly or presuming” (1859: IV.5, 278).

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impermissible because it implicitly expresses a judgment to this effect. To be sure, defenders of the insult objection typically claim only that it identifies a reason for thinking that paternalism is objectionable; they do not claim that paternalism is always impermissible all things considered. But if the view they defend is to retain any interest as an objection to pro-​ paternalism, it must show that intervention is sometimes impermissible because it expresses an insulting message. And so far as I can tell, any such argument would be likely to show that it is sometimes impermissible to merely tell someone that she is behaving imprudently. Moreover, even if some people do think that it can be impermissible to merely tell someone that she is behaving imprudently, this might be because they are imagining a case in which such behavior is unlikely to do any good. Ordinarily, approaching a stranger to offer dietary advice is likely to cause her to feel insulted without benefiting her in any way, and as I have already indicated, everyone can agree that it is wrong to gratuitously insult others.43 Further, given the social conventions operative in many societies, we are likely to imagine that someone who comments on a stranger’s appearance or offers her dietary advice thereby intends to insult the stranger, and this may lead us to judge such an agent more harshly. Once these features are eliminated from our example, our reaction to it may change. Perhaps, however, paternalism is objectionable not merely because it expresses an insulting message but also because it does so by taking over choices that are legitimately the target’s to make. The anti-​paternalist might concede that it is not typically objectionable merely to tell someone that she is behaving imprudently (at least when such a statement does more good than harm), but then go on to argue that it is objectionable to express this message by interfering in, or taking over, her choices. This point coheres with Shiffrin’s claim that objectionably paternalistic behavior must be intended to have an effect on the target’s “legitimate” sphere of agency or control.44 Unfortunately for this response, however, the claim that some choice falls within a person’s legitimate sphere of control would appear to

43.  Notice that the point here does not apply only to contexts ordinarily thought to raise issues about paternalism. Imagine, for example, that someone walks up to a stranger who is eating a hamburger and gives her a lecture about the suffering caused by factory farming. We might react to this agent’s behavior in much the same way that we would react to the agent’s behavior in our original example. But surely this would not show that it is wrong to attempt to convince others to give up meat. If anything, it would show only that we have good reason to avoid causing others to feel insulted when doing so is unlikely to achieve any good. 44. Shiffrin (2000: 218). Similar appeals to the target’s legitimate sphere of agency are made by Cornell (2015: 1315) and Tsai (2014: 88).

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show all by itself, without any assistance from insult-​based appeals, that interference is presumptively wrong. After all, pro-​paternalists would presumably hold that when intervention would be in the target’s best interest, the question of whether such intervention ought to be undertaken does not fall within the target’s legitimate sphere of control.45 Anti-​paternalists would disagree. But then the fundamental question is not whether paternalism is insulting. It is instead about where we should draw the boundaries of a person’s legitimate sphere of control, and in particular how paternalistic considerations should inform such boundary-​drawing. It would be question-​begging for the anti-​paternalist to simply assume her favored answer to this question. This takes us to a further point. Whether it seems insulting for an agent to express a certain message may depend on that agent’s role. Whatever we might think of someone who offers dietary advice to an overweight stranger, surely it is not objectionably insulting for a doctor to sensitively tell a patient that she could stand to lose some weight, if the doctor does so because he (correctly) believes that the patient will otherwise persist in her imprudent dietary habits. And one important observation here is that the government, like the doctor of our example, may have a role, or operate in a context, that removes the taint of insult. To appreciate this point, imagine that the surgeon general declares obesity a public health crisis and issues an accompanying statement detailing the ways in which citizens make unhealthy choices regarding diet and exercise. It does not appear that this sort of involvement would be objectionably insulting. And once again, if it is not wrong for the government to explicitly send some message, it is far from clear why we should object to otherwise effective intervention on the grounds that it expresses the same message. As before, one might respond that the government has no right to restrictively regulate citizens’ dietary choices (say, by prohibiting the use of trans fats or other unhealthy food additives), since these choices lie within citizens’ legitimate control. But such a response would seem to abandon expressive considerations entirely, and in the absence of further argument would also seem question-​begging.46 45.  Thus, de Marneffe claims that “if the imputation of an insult depends  .  .  .  on judgments about what choices are properly left to the individual, then, for any seemingly paternalistic policy, it is possible to address the charge that it is insulting by arguing that it is a morally justifiable and legitimate exercise of government authority” (2006: 79). For related discussion, see Coons and Weber (2013: 5–​6). 46. The critic might also argue that the expressive objection applies only to paternalism in interpersonal, rather than policy, contexts. As I have already suggested, however, this response is unsatisfying. Moreover, if such a response were to show only that we sometimes ought to address imprudent behavior through policies rather than

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Let us briefly take stock. I have raised two problems for the expressive version of the insult objection. First, the expressive character of an act or policy may depend on contextual features that are variable and contingent in a way that renders the objection less attractive. Second, it is unclear why the expressive meaning supposedly characteristic of paternalism—​that the agent knows better than the target, or that the target cannot be trusted to make prudent choices—​should be thought insulting in the objective sense that is now at issue. I  have considered various responses to this second problem and found each wanting: it is not clear that it is objectionably insulting to express something true, especially if one does so sensitively and benevolently. The discussion so far may also suggest a final problem for the expressive objection:  expressive considerations do not appear to provide the right kind of objection to the pro-​paternalist view. If one were to provide an overweight stranger with weight-​loss advice, her main complaint about such behavior would probably be that it is insulting. Moreover, she may be unable to explain why it is insulting without appealing to either her mere feelings of insult or to operative social conventions. The extent of her complaint might be this: “You don’t just go up to someone you’ve never met and comment on her diet!” But when people claim to be insulted by paternalism, they often do believe that they have reasons to be insulted. They may believe, for instance, that the intervention is unlikely to serve their best interests. Or they may believe that they have a basic moral right to make certain choices for themselves. People who protest their paternalistic treatment at the hands of others are rarely protesting merely because they believe that others have sent or expressed an insulting message. From their perspective, the expressive objection may appear to treat the symptoms, rather than the underlying disease. Seen in this light, the expressive objection may itself appear patronizing in a way that ought to worry anti-​paternalists. Imagine, for instance, that the target of some paternalistic behavior objects in the following terms: “I have the moral right to do whatever I  want, so long as I  do not thereby harm other people. Since the behavior you seek to restrict does not harm anyone else, you have no business preventing me from doing what I want to do.” And suppose now that the anti-​paternalist responds to this complaint

one-​off interpersonal interventions, the pro-​paternalist may agree, for reasons indicated in section 1.4.2: there are good reasons for thinking that the use of coercion, for instance, should generally be left to the government, and there may also be reasons for thinking that the government may sometimes be able to address imprudence more effectively than individual paternalistic agents acting on their own.

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as follows: “It is not so clear that you do have the moral right you claim to have. And intervention would almost surely be in your best interest. Still, because of various social conventions—​conventions that might well have been different, and might well change over time—​intervention probably would send an insulting message, so I agree that it would be at least presumptively objectionable.” Such an appeal to insult may seem unsatisfying or patronizing, insofar as it concerns itself with considerations other than those in virtue of which the target claims to be insulted. The insult objection seems appealing largely because it seems true to the experience of being treated paternalistically. Yet when the targets of paternalism feel as though they have been insulted, they are not typically complaining merely that others have expressed a negative (and possibly true) message about them and their abilities. If that were all, they would complain equally vociferously when others merely tell them that they are behaving imprudently. Of course, this problem would not arise in the present context if the targets of paternalistic intervention were typically to point only to claims about insult in explaining why they oppose the way in which they are treated. I suspect, however, that the targets of paternalism would often—​and in the cases anti-​paternalists find most troubling, perhaps usually—​raise more substantial, even if ultimately misguided, objections.

3.4 THE STATUS-​B ASED OBJECTION

It seems to me, then, that neither the motive-​based objection nor the expressive objection can show that insult is relevant in more than a merely instrumental way, and thus that neither objection poses a problem for the pro-​paternalist position. But perhaps there is yet another way to develop the basic idea that paternalism is insulting, belittling, or disrespectful. Some behavior might be demeaning not merely because it is commonly experienced or conventionally regarded as insulting but, rather, because it treats someone as having a lower status than she in fact has. By appealing to the latter status-​based consideration, perhaps one can develop an argument against paternalism that escapes the problems discussed earlier while remaining faithful to the guiding idea behind the insult objection. We need not look far for such an argument. For it is sometimes claimed that paternalism is disrespectful because it treats people “as if” they lack certain capacities that characterize autonomous agency or serve as a basis for moral equality. I will take Jonathan Quong’s recent argument against paternalism as the chief representative of this strategy, partly because he has developed the argument more thoroughly than most others and partly

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because my response to his argument is likely to apply, with minimal modification, to others like it. Quong draws on Rawls’s claim that citizens are “free and equal” insofar as they possess two moral powers: a capacity for a sense of justice and a capacity for a conception of the good.47 The first of these moral powers is “the capacity to understand, to apply, and to act from the public conception of justice which characterizes the fair terms of social cooperation,” while the second is “the capacity to form, to revise, and rationally to pursue a conception of one’s rational advantage or good.”48 According to Quong, paternalism—​ and especially government paternalism—​ is inconsistent with the recognition that citizens possess this second moral power and is thus inconsistent with the Rawlsian conception of citizens as free and equal. Quong’s argument to this effect runs as follows: [P]‌aternalism involves one person or group denying that another person or group has the necessary capacity, in a given context, to exercise the second of the two moral powers: the capacity to plan, revise, and rationally pursue their own conception of the good. To treat someone paternalistically is thus (at least temporarily) to treat that person as if he or she lacks the second moral power. This means there is always a strong moral reason not to treat a sane adult paternalistically, and this is why paternalism is prima facie wrong.49

Quong’s status-​based argument can be briefly summarized as follows: (1) Paternalism typically involves treating someone as if she (at least temporarily) lacks the second moral power. (2) It is objectionable to treat someone as if she lacks the second moral power, since this is to treat her as less than a free and equal citizen. (C) Therefore, paternalism is typically objectionable (to at least some extent).

47. Quong (2011: 100). 48. Rawls (2005: 19), quoted in Quong (2011: 100). 49. Quong (2011: 101). Notice that, as stated, Quong’s argument aims to show only that paternalism is “prima facie wrong.” The claim that paternalism is merely prima facie wrong, or that paternalism merely appears to be wrong, is consistent with the pro-​paternalist view: perhaps paternalism appears to be wrong, even though there is in fact nothing wrong with it (at least when it secures the target’s best interest without wrongly burdening others). Quong also believes, though does not claim to have shown, that paternalism is pro tanto wrong, or that there is a genuine (if defeasible) objection to it (2011: 100n66). For simplicity, I will interpret Quong as holding that paternalism is typically objectionable to at least some extent.

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Others have suggested similar arguments. For instance, Donald VanDeVeer claims that “to treat [competent persons] as if they lack what we have and expect to pursue, namely a conception of the good, is to deny them a certain moral equality.”50 The claim that paternalism treats people “as if” they lack certain capacities or powers is more difficult to interpret than it may first appear. Notice that in a variety of contexts, there appears to be an important difference between the claim that someone (even temporarily) lacks a certain capacity and the claim that someone fails (or is likely to fail) to do a good job in exercising some capacity that she in fact possesses.51 After all, we commonly distinguish people who are temporarily unable to tell right from wrong (as a result of temporary insanity, say) from people who simply fail to do the right thing. Moreover, anti-​paternalists who nonetheless permit soft paternalism on behalf of incompetent agents should be careful to distinguish the claim that someone has temporarily lost certain prudential decision-​making capacities (due to extreme intoxication, for instance) from the claim that someone is merely unlikely to exercise these capacities well. It would appear, then, that we should distinguish premise (1)  of the status-​based argument, according to which paternalism typically treats people as if they (temporarily) lack the second moral power, from the following premise: (1*) Paternalism typically involves treating someone as if she will not, or is unlikely to, exercise the second moral power in a way that (maximally) advances her welfare, interests, or good.

50.  VanDeVeer (1986:  113, emphasis in original). For similar concerns, see Sher (2014: 39–​40), Christman (1988: 110), and Kleinig (1983: 54). 51. In fact, we might want to draw a three-​part distinction here. Killmister (2013) suggests that we ought to distinguish the capacity for autonomy from both the ability for autonomy and the exercise of autonomy. On Killmister’s view, most young children have the capacity for autonomy, since they can develop it under reasonably propitious circumstances, while most adults without severe cognitive disabilities have the ability for autonomy, in the sense that they can “immediately” realize or exercise autonomy (2013: 358). An adult who has the ability for autonomy might nonetheless refrain from exercising it, however. In a similar vein, Birks notes that one possible concern about Quong’s status-​based argument is that it “appears to make the fallacious inference” that a person who does not perform an action cannot perform it (2014: 488–​89). Yet Birks suggests that Quong can avoid this concern by claiming that if one is unlikely to succeed in one’s attempt to do something, then one lacks the capacity to do that thing to some extent. I am skeptical of this suggestion, however, for reasons indicated later.

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Neither (1) nor (1*) is fundamentally normative—​that is, neither premise declares that some sort of behavior is morally wrong. Instead, each simply purports to identify some feature characteristic of (typical instances of) paternalism. Which premise, then, should we accept, (1) or (1*)? One might suspect that there is no way to answer this question. Even if there is a difference between the claim that a person lacks a capacity and the claim that she is unlikely to prudently or effectively exercise it, perhaps there is no real difference between treating someone as if she temporarily lacks a capacity and treating someone as if she is unlikely to prudently or effectively exercise it. Alternatively, even if there is a difference in principle between these two forms of treatment, perhaps we can only rarely know which of (1) or (1*) best characterizes any particular instance of paternalism. In either case, however, the status-​based argument would be in serious trouble. For if, as I shall argue, (1*) cannot be used to generate a compelling objection to paternalism, then the proponent of the status-​based argument had better not admit that we can rarely tell whether (1), rather than (1*), is true, much less that there is no real difference between them. Is there any way, then, to determine whether the paternalistic agent treats the target as if she lacks a capacity, and not as if she is merely unlikely to prudently exercise a capacity that she has? As far as I can tell, the best way of dealing with this question appeals to the agent’s attitudes toward, or beliefs about, the target.52 If the agent believes that the target possesses the second moral power and holds the corresponding suite of attitudes—​ for instance, if the agent regards the target as responsible for her behavior in a way that, say, a young child is not—​then perhaps the agent treats the target as if she possesses the second moral power but is unlikely to exercise it well. By contrast, if the agent believes that the target really is no different from a young child, or that the target is incapable of behaving more prudently, then perhaps the agent treats the target as if she (at least temporarily) lacks the second moral power. Though an agent’s attitudes cannot always be easily ascertained from his behavior, his attitudes may influence his behavior. Thus, if the agent believes that the target possesses the second moral power, he may expend more effort attempting to persuade the target before intervening. If we can adjudicate between (1) and (1*) by consulting the attitudes of the paternalistic agent, then the status-​based argument faces two problems. The

52.  This response coheres with Quong’s “judgemental definition” of paternalism, according to which a paternalistic act is “motivated by a negative judgement about B’s ability (assuming B has the relevant information)” to make a good or prudent decision (2011: 80, emphasis in original).

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first is that it would appear to be subject to all the difficulties accompanying the motive-​based objection discussed in section 3.2. The second is that, at least in cases of putatively hard (as opposed to soft) paternalism, there would be no reason to think that (1) is true. After all, if the paternalistic agent interferes with imprudent behavior that he regards as voluntary and informed, he is likely to believe that the target has the capacity to form and pursue a conception of the good; the agent will deny only that the target is likely to exercise this capacity in ways that work to her advantage.53 Notice, once again, that we accept a similar point in other contexts. If two scientists disagree about which of two theories is best supported by the evidence, each might believe that the other has failed to use her reasoning abilities in the best or most effective way, but neither is likely to believe that the other lacks the ability or capacity to engage in sound scientific reasoning.54 Likewise, if two expert chess players disagree about which move would be most conducive to victory in a certain situation, neither need believe that the other lacks the ability to make a prudent move or to play chess effectively. Of course, on some occasions, a paternalistic agent might wrongly believe that the target really does lack the capacity to form and pursue a conception of the good, but this sort of belief (and any status-​based insult it generates) would be gratuitous: the (hard) paternalistic agent need not hold that the target lacks some capacity, only that the target fails to exercise her capacities well. Suppose, then, that we opt for (1*) rather than (1). For the resulting argument to be valid, we will have to modify the original premise (2), along the following lines: (2*) It is objectionable to treat someone as if she will not, or is unlikely to, exercise the second moral power in a way that (maximally) advances

53. For relevant discussion, see Groll (2012: 718–​19). Interestingly, Groll claims that it is not generally wrong to act on the basis of a belief that someone lacks the capacity for sound prudential judgment (assuming that she really does), though it is generally wrong to act on the basis of a belief that someone is unlikely to exercise a capacity for sound judgment in the relevant situation (even if this is in fact true). Though Groll does not purport to offer a full explanation for why the latter sort of behavior is impermissible, I suspect that his proposal would face many of the problems raised here. 54. Perhaps it will be suggested that each must believe that the other lacks the capacity to engage in sound scientific reasoning about the issue in question. But that also seems unlikely. Suppose that, over time, one party to the disagreement slowly changes her mind and ends up agreeing with the other. Presumably the other would not be committed to saying that the first person initially lacked the capacity to engage in sound reasoning and then fully acquired it once her change of mind was complete.

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her welfare, interests, or good, since this is to treat her as less than a free and equal citizen. Notice, moreover, that if one were to claim that there is no genuine difference between (1) and (1*), one would probably also have to claim that there is no genuine difference between (2) and (2*). This modified premise, however, faces a number of problems. First, (2*) would appear to condemn some apparently innocuous behav­ ior. To return to an example discussed in section 1.4.1, suppose that a professor, justifiably concerned that his students will procrastinate, requires them to submit rough drafts of their term papers well in advance of the due date. There would appear to be a sense in which the professor treats his students as if they are unlikely to exercise their capacities in ways that advance their interests; after all, if he were to believe that the students are optimally prudent, he might think that there is no need to require the drafts. Yet it seems difficult to believe that his behavior is even presumptively wrong.55 A second problem, similar to one raised against the expressive objection in section 3.3, is that people obviously do sometimes fail to exercise their capacities in ways that advance their interests. Moreover, even if all competent adults possess the second moral power, they differ in how well they typically exercise this power.56 Why, then, should we think that it is objectionable to treat someone as if she is unlikely to prudently exercise her capacities, when she really is unlikely to do so? One concern here is that (2*) seems question-​begging: there would appear to be no reason to accept 55. One might argue that his behavior is not wrong because the right to set classroom  policies (within limits) falls within his domain of legitimate control. Quong, unlike Shiffrin, does not appeal to the claim that paternalism must encroach on the target’s legitimate domain. And as we have seen, if he were to do so, then this appeal may ultimately explain why paternalism is wrong, even without any help from claims about moral status or insult. 56.  Quong recognizes this point and concedes that while it may show that paternalistic policies are sometimes justified “all things considered,” any benefits of such a policy would need to be weighed “against the substantial cost of denigrating citizens’ moral status” (2011:  102). Likewise, Quong concedes that while de Marneffe (2006: 76–​81) has shown that concerns about insult cannot justify an “absolute” prohibition against paternalism, such concerns can still show that paternalism is presumptively wrong (see Quong [2011: 101n69]). These responses do not, I believe, address the central problem described here: that treating a person as if she is unlikely to prudently exercise her capacities (when this is true) simply does not denigrate her moral status at all. If such treatment does not denigrate the target’s moral status, then there would be no status-​based costs for the benefits to be weighed against. For a different criticism of Quong’s response to the point that people differ in how well they typically exercise the second moral power, see Birks (2014: 493–​95).

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it unless we antecedently believe that paternalism is at least presumptively wrong. A further concern is that if people differ in how well or prudently they typically exercise the second moral power, then one had better not claim that citizens are moral equals because they always exercise the second moral power well, or because each person exercises her second moral power as well as anyone else exercises his.57 And if our status as moral equals does not depend on how well we exercise our capacities, then treating (some) people as if they are unlikely to exercise their capacities well would not appear to challenge their status as moral equals. In response to this point, one might argue that the Rawlsian claim that citizens’ possession of the two moral powers renders them free and equal is not best understood as a claim about the descriptive or factual basis of moral equality. Instead, the ideal of citizens as free and equal may be part of a “political conception” of the person—​to serve as an ideal for the regulation of society’s political, social, and economic institutions.58 And perhaps such a conception of the person can itself be grounded in some notion of respect. To show a citizen adequate respect, one might argue, the state must treat her as “opaque” and abstain from assessing the extent to which she possesses certain scalar properties such as intelligence, prudence, or moral capacity.59 Even if people in fact possess different prudential abilities, perhaps they ought to be viewed, at least for political purposes, as equal in their possession of the two moral powers. One concern about this response is that it may merely replace one problem (that of explaining why it is wrong to treat a person as if she is unlikely to behave prudently, when she really is) with another (that of explaining and defending the relevant political conception or the notion of “opacity respect” that undergirds it). But the reply raises further questions, as well. As we shall see in c­ hapter 7, most anti-​paternalists believe that it is not objectionable to intervene on behalf of a generally competent person who is subject to a severe but temporary distorting influence, such as a bout of severe depression or a temporary mental illness. Yet if we think

57. The claim that individuals’ moral equality cannot be explained by their possession of some scalar property, such as rationality or moral sensitivity, is often associated with Singer (2011: chap. 2) and Williams (1962: 230–​31, 234–​36). 58.  See Rawls (2005:  11–​22). Notice that while this response may be available to Rawlsian political liberals such as Quong, it may not be available to other anti-​ paternalists who appeal to the notion of moral equality. 59. The notion of “opacity respect” is explained and defended by Carter (2011: 550–​ 60). I am indebted to Jonathan Quong for directing me to consider this possible reply.

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that it is generally disrespectful to evaluate others on the basis of their “inner” capacities or traits, this view may be more difficult to defend.60 Further, and perhaps more significantly, consider how the suggested version of the moral status argument fares in policy contexts—​the contexts in which Rawls’s political conception of the person seems most appropriate. One traditional complaint about paternalistic policies is that, as Mill observed, they must rely on general assumptions that are unlikely to hold in every particular case.61 Thus, Quong argues that while (sane, competent) adults do sometimes make imprudent choices, it may still be objectionable for “the state to treat the entire adult population (or some subset) as if they all lack the ability to effectively advance their own interests.”62 Given that the government can rarely tailor policies to individual cases, paternalistic policies will rarely rest on an assessment of the extent to which any individual possesses certain scalar properties such as intelligence or prudence. In most policy contexts, then, there is a sense in which the capacities and abilities of any particular individual must remain mostly opaque. Moreover, notice that a paternalistic policy might be motivated only by a judgment that it is likely to produce sufficiently great benefits, or that it is likely to benefit enough people, to justify any costs it imposes. In such cases, it is far from clear why we should think that the policy treats each person as if she is unlikely to effectively advance her own interests. To make this point more vivid, imagine that a government official argues in favor of imposing restrictions on some self-​regarding behavior by pointing out that it is imprudent and seriously harmful for about 80 percent of those who engage in it (or even, in soft paternalistic fashion, that such behavior results in serious nonvoluntary harm to the 80 percent), while it provides only fairly trivial net benefits to the remaining 20 percent. Especially if what the official says is true, it would seem unconvincing if someone were to object that the policy passes judgment on her individual ability to make prudent choices. Instead, it would appear that the policy simply treats citizens as though, in its absence, enough of them would cause themselves serious self-​harm. In short, then, there is little reason to think that paternalistic intervention treats people as though they lack Rawls’s second moral power. Such

60. To be sure, Carter argues that agents should be treated as opaque only “up to a point”: on his view, it is not disrespectful to evaluate their capacities to ensure that they meet some minimal threshold (2011: 552–​53). Still, unless the threshold is fairly demanding, it seems possible that someone might meet the threshold even though she is subject to a temporary deliberative distortion or impairment. In fairness, however, it should be noted that Carter does not explicitly discuss the issue of paternalism. 61. Mill (1859: IV.4, 277). 62. Quong (2011: 104, emphasis added).

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intervention may treat people as if they (or a sufficient number of them) are unlikely to exercise the second moral power in a maximally prudent way. But it is not clear why this would be an objection to intervention that really does deter people from behaving imprudently. I now want to set these concerns aside, however, to turn to a different problem for the status-​based argument. As we have seen, Quong attempts to defend the status-​based argument by appealing to the importance of respecting people as bearers of Rawls’s two moral powers. The status-​based argument against paternalism, however, focuses only on the second moral power. It thus seems fair to ask whether there are any analogues of the argument’s two premises that focus instead on the first moral power, or the capacity for a sense of justice. Suppose that treating someone as if she lacks the second moral power involves denying her status as free and equal. If so, then presumably treating someone as if she lacks the first moral power—​the “capacity to understand, to apply, and to act from the public conception of justice”—​also involves denying her status as free and equal.63 That is, if it is objectionable to treat competent adults as though they lack the second moral power, and if the second moral power is important in virtue of its relation to citizens’ freedom and equality, then presumably it is also objectionable to treat competent adults as though they lack the first moral power, since this power is also a component of the Rawlsian conception of citizens as free and equal. Moreover, if paternalistic intervention to prevent or deter imprudent behavior treats people as if they lack the second moral power, then presumably intervention to prevent or deter unjust behavior treats people as if they lack the first moral power. Thus, a line of reasoning parallel to Quong’s moral status argument seems to establish that intervention necessary to enforce compliance with the demands of justice is presumptively objectionable. If we accept the original status-​based argument, it thus appears that we should also accept an argument of the following form: (1) Intervention to enforce the demands of justice involves treating someone as if she (at least temporarily) lacks the first moral power. (2) It is objectionable to treat someone as if she lacks the first moral power, since this is to treat her as less than a free and equal citizen. (C) Therefore, intervention to enforce the demands of justice is typically objectionable (to at least some extent).

63. For the quoted passage, see Rawls (2005: 19).

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To be sure, one might accept this conclusion but argue that such intervention is usually, if not always, permissible, all things considered.64 I find this view implausible. More important, if enforcing the demands of justice is objectionable (to some extent) for the same sorts of reasons that paternalistic intervention is, then there would be nothing distinctively objectionable about paternalism. To his credit, Quong recognizes this apparent difficulty. He briefly suggests that enforcing the duties of justice may be necessary to assure each person that others will do their share in a cooperative scheme. Providing such assurance need not denigrate anyone’s moral capacities.65 In short, the thought goes, to enforce the duties of justice is not to treat people as if they are unable to exercise the first moral power; it is instead to create the conditions under which such duties can be genuinely binding. Though this line of argument may be compelling as applied to some duties of justice (for instance, the duty to pay one’s fair share in taxes), it does not seem compelling as applied to others (for instance, the duty not to assault others). For while it seems plausible to suppose that one would not be required to pay one’s fair share in taxes unless one had some reasonable assurance that others would do likewise, nothing similar is obviously true regarding the duty not to cause others bodily harm. Yet surely this duty is enforceable. Is there any other relevant disanalogy between the status-​based argument against paternalism and the problematic argument just described? It might be tempting to deny (1)  of the problematic argument on the grounds that intervention to enforce the demands of justice can be publicly justified to all reasonable citizens, since, at least on the Rawlsian view, a political conception of justice can itself be justified to all reasonable citizens. By contrast, one might argue, paternalistic intervention cannot (always) be justified to those subject to it. This latter claim, however, may not have all that much to do with moral status-​ based considerations. Instead, it seems to amount to the objection that

64. I am grateful to Jonathan Quong for discussion of this possibility. We might ask what it implies about cases such as the following. Suppose that Steve learns that Sue plans to shoot her neighbor in a few minutes. Because there is no time to summon the authorities, Steve hides Sue’s gun. Under these circumstances, it seems to me that there is nothing even presumptively wrong about Steve’s behavior. But anti-​paternalist proponents of the moral status argument presumably want to say that there would be something at least presumptively wrong about Steve’s hiding Sue’s gun in order to prevent Sue from harming herself. 65. Quong (2011: 103n72). To be fair, Quong only briefly develops this argument, and he indicates that his remarks do not amount to a “full response” to the objection we are now considering.

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paternalism imposes values on people—​an objection I  discuss in the following chapter.66 Though I have been focusing on the status-​based argument throughout this section, the problem just described appears to apply more generally to the claim that paternalism is wrong because it is insulting. At least in many contexts, it seems at least as demeaning or belittling to be treated in a way that is prompted by distrust in one’s abilities to treat others justly as it does to be treated in a way that is prompted by distrust in one’s abilities to behave prudently. To take a stock example from the debate over paternalism, Colleen might well feel insulted if she were to discover that her spouse, Doug, had been hiding his pain pills out of a fear that she would otherwise use them to harm herself.67 But if she is like most of us, Colleen would probably be at least as insulted if she were to discover that Doug had been hiding the pills out of a fear that she would otherwise use them to poison her neighbor. The claim that it is insulting for others to express distrust in one’s own abilities does not apply uniquely to one’s prudential abilities. Instead, the claim, if true, would presumably apply to all the abilities one values or finds important. The question, then, is why the insult objection should be thought to impugn paternalistic interference but not interference necessary to prevent someone from treating others wrongly. In order to answer this question, the anti-​paternalist might, of course, appeal to various other alleged differences between these two types of interference—​for instance, that the former, but not the latter, violates a person’s right to direct the course of her own life. But then this appeal, and not the insult objection, would appear to be doing all the moral work. Objections that appeal to the putatively insulting or demeaning character of paternalism seem compelling largely because they appear to capture what it sometimes feels like to be treated paternalistically. I have argued, however, that such objections, as they have been most prominently developed, do not provide sound arguments against pro-​paternalism. Let me very briefly summarize several of the problems I have described. First, while some versions of the insult objection center on the motives of the paternalistic agent, it is unclear that motives are directly relevant to permissibility.

66.  Moreover, the reply just suggested may be unsuitable for Quong’s purposes. Quong (2011: 84–​96) discusses paternalism primarily to show that perfectionism is objectionable insofar as it is paternalistic. The response above, however, appears to represent the reverse strategy, of arguing that paternalism is objectionable because it is non-​neutral or perfectionist. 67. For this example, see Dworkin (1983: 106).

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Second, even if this problem could be avoided by focusing on the meaning or expressive content of paternalistic acts and policies, further problems would remain: it is unclear that the message supposedly expressed by paternalism is objectively insulting, at least when the paternalistic agent really is more likely than the target to act in the target’s best interest. Moreover, the expressive version of the insult objection may leave the permissibility of paternalistic acts and policies far too contingent on highly variable contextual features. Finally, as we have just seen, even if paternalistic intervention does in some sense treat people as if they are unlikely to choose prudently, it does not involve denying that they possess various capacities that may be thought to be bound up with their status as equals. Once again, my aim has been to show that none of the arguments we have considered provides a successful stand-​alone objection to paternalism. Perhaps paternalism’s putatively insulting character, whatever it might consist in, exacerbates the wrongness grounded in other considerations. I discuss several such candidate considerations in the following chapter.

CHAPTER 4

The Imposition of Values

O

ne of the most persistent objections to paternalism maintains that it wrongly imposes values on those subject to it. The paternalistic agent seems to be guilty of “privileging a particular and substantive value orientation (one the [target] himself might not share) in violation of the liberal commitment to remain neutral among competing ends.”1 Paternalistic intervention may seem to be geared toward achieving “a good which is not recognized as such by those persons for whom the good is intended.”2 For the sake of brevity, call the general concern expressed by such statements the objection from value imposition. This objection holds, roughly, that paternalism is objectionable to the extent that the paternalistic agent substitutes her judgment for the target’s own judgment about what is prudent, valuable, or worth doing.3 The objection may be tied to a broadly Kantian ideal, according to which it is wrong to use others for ends or purposes that they cannot share.4 As the quotations indicate, the objection also seems to be closely related to an ideal of political neutrality among conceptions of the good life.5 Moreover, the objection may provide one way (though not the

1. Garren (2007: 55). 2. Dworkin (1971: 23). 3.  Shiffrin claims that the paternalistic agent typically substitutes her judgment for the target’s, about what the target “should aim for” (2000: 213); see also Cholbi (2013: 117). 4. See Cholbi (2013) and Fahmy (2011). 5.  For the view that some ideal of neutrality is a defining feature of liberalism, see Dworkin (1978:  esp.  191–​92). It is sometimes claimed that putatively paternalistic policies, such as drug prohibitions, are objectionably non-​neutral; see Husak (2000: 46–​61).

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only way) of interpreting the common complaint that paternalism is inconsistent with respect for autonomy.6 Respect for autonomy may require that our treatment of others be guided in certain ways by their values and preferences, and such a requirement may seem to rule out at least certain forms of paternalistic interference. It seems fair to say, however, that the objection from value imposition is raised more often than it is clearly explained. It is not immediately clear what is involved in “imposing values” on someone. And unless we have a reasonably clear account of what it means to impose values on a person, it will be difficult to assess the conditions under which paternalistic agents are guilty of this supposed wrong. This chapter responds to several different interpretations of the objection from value imposition. I first characterize the core idea behind an initially appealing version of the objection and argue that it does not jeopardize paternalistic rationales that appeal to appropriately neutral goods, such as health (section 4.1). I  then discuss several possible rejoinders to this argument (section 4.2). Next, I  consider the viability of paternalistic rationales that appeal to controversial or perfectionist values. Some philosophers have attempted to rule out such rationales by distinguishing between “means-​related” and “ends-​related” paternalism. I  challenge the relevance of this distinction (section 4.3) before describing a more promising response to the issues raised by paternalistic rationales that appeal to controversial values (section 4.4). Finally, I  examine the difficult case of people who engage in self-​ harmful behavior for religious reasons (section 4.5). Before we critically examine the objection from value imposition, however, it is worth briefly distinguishing it from some of the other objections already discussed. A  critic might argue that, at least in some cases, “imposing values” on a person, however this notion is understood, is wrong because it is contrary to that person’s best interest.7 Some interventions that involve (or are thought to involve) the imposition of values may not advance any of the target’s interests, or they may advance some of his interests but frustrate or impede other, more important interests of his. In either case, pro-​paternalism leaves open the possibility that intervention would be wrong. To develop a successful challenge to pro-​paternalism, the critic would need to show that intervention might be impermissible because it imposes values on the target, even when it is in the target’s best 6. See Scoccia (1990), VanDeVeer (1986: 77), and Kleinig (1983: 28), though Kleinig puts in the point in terms of individuality rather than autonomy. 7. See the discussion of “critical paternalism” in Dworkin (2000: 268–​74).

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interest. It is this objection that I shall examine in what follows, and it is no doubt this objection that many critics of paternalism have had in mind.

4.1 THE WEAK CONSTRAINT

What is involved in imposing values on someone? There is a trivial sense in which virtually any policy that a person opposes might be said to impose values on him (provided, at least, that the policy in some way applies to him, or is implemented in his community, and so forth). Suppose that a municipality passes a referendum to increase property taxes in order to finance the construction of a new school. Such a policy might, in some sense, “impose values” on residents who oppose it. Likewise, if the government opts for lower (or higher) highway speed limits than some of its citizens would like, there may be a sense in which it imposes values on those who would trade some measure of safety for convenience (or vice versa). But anti-​paternalists presumably mean to claim that paternalistic policies impose values on people in some more robust, and more objectionable, sense than this. Fortunately, there is a more plausible interpretation of the objection from value imposition. According to this interpretation, there are constraints on the sorts of considerations that can count as (good or admissible) reasons in favor of liberty-​limiting intervention.8 If some good “is not recognized as such” by the person for whom it is intended, then perhaps this good is unsuited to figure in valid rationales for intervention. Indeed, neutralist liberals whose views diverge in many other respects commonly agree that whether a rationale is admissible depends on whether it can be accepted by the person or persons who are thought to be owed an explanation or justification for whatever it is that the rationale supports.9 So perhaps paternalistic rationales are ruled out insofar as they cannot be accepted by those subject to interference. Since the debate about paternalism, as I have stressed, is mainly about the reason-​giving status of paternalistic rationales, the objection from value imposition, as just interpreted, at least appears to be focused on the right target. Moreover, it may seem initially appealing. Anti-​paternalists have traditionally been especially concerned with intervention that is contrary to the target’s will.10 In some of the cases they would find most 8. See de Marneffe (2010: esp. 134) and Rawls (2005: 476). 9. See, for instance, Gaus (2009: 86), Larmore (1996: chap. 6), and Rawls (2005: 137ff). 10. See Arneson (1980: 471).

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troublesome, a fully informed and generally competent adult opposes intervention because he denies that it would be in his best interest. In such a case, there would appear to be a sense in which the target cannot, consistent with his conception of his own good or interests, accept the paternalistic rationale for intervention. And if the target cannot accept the paternalistic rationale, then perhaps it cannot provide an admissible or appropriately “neutral” basis for limiting his liberty. (For the sake of simplicity, I will continue to focus on liberty-​limiting intervention, since it is probably this sort of intervention that can be most plausibly claimed to impose values on people.) There are, however, a number of different interpretations of the moral constraint that undergirds this line of argument. One might be labeled the weak constraint; the sense in which it is weak will soon become apparent: The Weak Constraint: A consideration cannot count as a reason in favor of liberty-​limiting intervention unless those who would be subject to such intervention can endorse it as a reason. The claim that a person can endorse some consideration as a reason differs from the claim that a person does endorse some consideration as a reason. If a person does not actually recognize something as a reason, we might nonetheless say that he can endorse it if he would endorse it if he were fully informed and reasoned at least tolerably well from his settled values.11 We might also say that someone can endorse a reason provided that he would endorse it if he were committed to ensuring that he conforms to fair standards of cooperation.12 Regardless of how we settle this issue, the weak constraint does not provide a strong bulwark against paternalism. This is because paternalistic rationales often appeal to interests or goods that all can (and do) recognize. Consider, for instance, the rationale in favor of paternalistic anti-​tobacco legislation that it is likely to benefit smokers and prospective smokers by prolonging their lives and reducing the incidence of respiratory illness. Everyone, regardless of his more comprehensive conception of the good life, can acknowledge that early death and disease are to be avoided, and everyone can thus recognize that health-​based considerations provide at least some reason in favor of anti-​tobacco laws. More generally, defenders of paternalism often appeal to widely recognized neutral goods

11. Gaus (2009: 85–​86). 12. See Rawls (2005: 49–​50) and Nagel (1987: 221).

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such as health, longevity, financial security, psychological well-​being, and increased opportunity. Rationales that appeal to these goods have been claimed to justify liberty-​limiting policies such as those that discourage the use of recreational drugs,13 limit portion sizes at restaurants,14 outlaw short-​term high-​interest loans, and require people to save money for their retirements, among other things. Thus, even if the weak constraint is accepted, it does not appear to rule out many paternalistic rationales. (It may rule out some, however—​a point to which I return in section 4.3.) In order for a rationale to be ruled out by the weak constraint, it would have to appeal to a value or good that some reasonable people fail to regard as having any weight whatsoever. To be sure, some people who engage in apparently imprudent or self-​harmful behavior may believe that, all things considered, they have good reason to act as they do. Thus, some smokers may believe that the pleasure they derive from smoking is worth the risks associated with such behavior. Nonetheless, they surely believe that they have some health-​based reason not to smoke. Since they recognize that health counts for something, they would presumably be capable of recognizing that there is some reason, even one that is relatively weak and easily defeated, in favor of an effective anti-​tobacco policy. And according to the weak constraint, this would be sufficient to show that health-​related interests can furnish valid reasons in favor of restricting (self-​regarding) smoking behavior. Of course, a critic may respond that if the weak constraint does not pose much of a challenge to paternalism, then surely it does not provide the best way of interpreting the objection from value imposition. Before we consider some alternative interpretations of this objection, however, it is worth noting that the weak constraint appears to capture something important. Indeed, reflection on cases suggests both the initial plausibility of the weak constraint and the difficulty of using it to support a robust anti-​ paternalist view. Consider, for instance, an example of a supposedly “non-​ neutral” rationale in favor of a public policy: suppose that the members of a public school board argue that because Catholicism is true, all students should be required to take a course in Catholic theology. Many liberals would condemn this rationale in favor of the policy, on the grounds that non-​Catholics cannot be given adequate reason to accept it; in this sense, the policy “imposes values” on non-​Catholics.15 Now contrast this with 13. De Marneffe (2003). 14. Conly (2013: 162–​69). 15. Of course, there could be other, appropriately neutral reasons to teach religion in public schools, in which case the policy may not impose values on people. For the purposes of the example, I set this possibility aside.

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a case in which a school board requires students to take a health course that educates them about the health risks of tobacco, with the aim of discouraging its use, on the grounds that tobacco use is typically harmful to health. It seems unlikely that liberal anti-​paternalists would condemn this policy or the proposed health-​based rationale in its favor. Instead, most would support it as a desirable form of education.16 The line of argument I have offered appears to provide an obvious way to explain the difference between the two policies: some reasonable people deny that Catholicism is true, while all reasonable people can accept that smoking-​related illness is bad. Nonetheless, my argument so far is likely to invite at least three critical rejoinders that will occupy me in the remainder of this chapter. First, a critic may argue that the objection from value imposition is best interpreted as endorsing a stronger constraint, which would rule out rationales that appeal to controversial judgments about value tradeoffs. Second, a critic may point out that even if everything I have said so far is correct, some “non-​neutral” paternalistic rationales may fail to satisfy the weak constraint. Third, a critic might object that pro-​paternalism supports certain types of intervention, such as intervention in self-​regarding choices prompted by one’s religious convictions, that liberals have traditionally thought to involve the objectionable imposition of values. I will examine the first of these objections in the following section, which considers only paternalistic rationales that satisfy the weak constraint as just described. I will then return to the second and third objections.

4.2 STRONGER CONSTRAINTS

The argument for a stronger constraint takes as its starting point a simple observation noted earlier:  even if all reasonable people can agree that something is valuable, they may (reasonably) disagree about how valuable it is relative to other goods. As we have seen, while a smoker may recognize that lung cancer is undesirable, he may also believe that the pleasures of smoking are worth the risks. Even if such a person agrees that intervention to deter him from smoking would serve some of his interests, and thus that there is at least some reason in favor of intervention, he may deny that intervention would be in his best interest, or that the respects in which intervention would advance his interests provide sufficiently strong reasons

16. See, for example, Feinberg (1971: 11) and Feinberg (1986: 121).

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in its favor.17 Perhaps this is the sense in which paternalism imposes values on people. If we believe that the constraint underlying the objection from value imposition ought to apply not merely to judgments about what is valuable, but also to judgments about value tradeoffs, then we arrive at the following constraint: The Strong Constraint, First Version (SC1):  A rationale cannot provide conclusive reason in favor of a liberty-​limiting act or policy unless those subject to intervention can endorse the rationale as providing such a conclusive reason. While the weak constraint is a claim about the conditions under which some consideration can provide or constitute a reason, SC1 is a claim about the conditions under which some consideration (or set of considerations) can provide or constitute a conclusive reason. To say that a reason is conclusive is to say that, even when weighed against any countervailing reasons, it is sufficient to justify the act or policy in question. I suspect that few anti-​paternalists would be prepared to accept SC1. Because SC1 applies to all rationales for liberty-​limiting intervention of any sort, it seems far too strict. The fact that some people deny that there is a conclusive reason in favor of a liberty-​limiting policy is not ordinarily thought to show that the policy imposes values on people in any objectionable way. Public policies often restrict liberty, if only because they are funded through a system of mandatory taxation.18 And as we have seen, many public policies impose values on people in the minimal sense that they apply to some people who believe them to be unjustified. To take an earlier example, if a local government proposes to increase taxes in order to build a new school, some (reasonable, informed) people might object that the benefits of the school are insufficient to justify its costs. Such opposition would not appear, all by itself, to show that the respects in which the community would benefit from a new school cannot possibly provide a conclusive reason in favor of the tax increase.19

17. This response, and its application to the case of smoking, is suggested by Gaus (2009: 92–​93). 18. Gaus (2009: 92–​93). 19. Of course, some might be prepared to reject a wide range of policies that appear to be in tension with the strong constraint. See Gaus (2009: 94–​95), though a full discussion of his view would take us too far afield. For present purposes, the important point is that if one adopts a conception of neutrality that condemns many policies that are widely accepted even among anti-​paternalists, one would be unable to claim that there is something distinctively objectionable about paternalism. Instead, one would in

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Moreover, for the sorts of reasons just described, SC1 would likely rule out, in principle, some putatively soft paternalistic measures of the sort favored by many anti-​paternalists. Consider a policy that is aimed at making a potentially dangerous recreational drug somewhat more difficult to obtain, with the goal of preventing its use by children. For illustrative purposes, we can perhaps imagine that the government prohibits stores located near schools from selling the drug, which in turn foreseeably inconveniences adult users who live near schools. Some adults—​perhaps only a small minority—​may believe that the benefits to children, while genuine, are insufficient to justify the burdens this policy imposes on adult users. But again, this would not by itself show that the putatively soft paternalistic rationale, which appeals only to the interests of children, cannot provide a conclusive reason in favor of the policy. In short, the problem for the original version of the strong constraint is that it appears too strong. One way to avoid this problem would be to narrow the scope of the constraint. SC1 is too strong because it applies to all rationales for liberty-​ limiting acts and policies. But perhaps there is something especially objectionable about rationales that appeal to contested judgments about a person’s own interests in order to justify intervention in his affairs. The claim that it is wrong to impose values on a person may be best interpreted as the claim that it is wrong to impose on someone a judgment about what is likely to make his life good, happy, or worthwhile—​including a judgment about how his various interests are to be ranked. Thus, one critic argues that “the state may act paternalistically to provide neutral goods only when doing so does not override the [target’s] ranking of goods according to his conception of the good.”20 Perhaps a contentious judgment about a person’s own interests or well-​being cannot suffice to support acts or policies that limit his liberty. This thought seems to support the following constraint: The Strong Constraint, Second Version (SC2): A rationale that appeals exclusively to a competent adult’s own welfare or interests cannot provide

effect be claiming that paternalistic policies are objectionably non-​neutral for the same reason that a wide range of (generally accepted) nonpaternalistic policies are. 20.  Clarke (2006:  119). For similar views, see Moles (2015:  665), Glod (2015:  615; 2013: 415), Pugh (2014: 350), Cholbi (2013: 117), Groarke (2002: 210–​11), and Scoccia (1990: 320), though Groarke takes the (putative) incompatibility of paternalism and liberal neutrality to show that we ought to reject the latter. In a somewhat similar vein, Gert and Culver argue that it is generally wrong for one to violate a moral rule “by imposing [one’s] (rational) ranking of evils on a person whose own (rational) ranking is different,” though interpreting this view would obviously require an account of the distinction between rational and irrational rankings (1979: 207).

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a conclusive reason in favor of an act or policy that limits his liberty unless he, consistent with his own conception of the good, can endorse the rationale as providing such a conclusive reason.21 To return to our earlier example, if a smoker believes that his interest in obtaining the pleasures of smoking is weightier than his interest in avoiding the health consequences of tobacco use, he may deny that the latter interest is sufficient to justify intervention in his behavior. In this case, SC2 would imply that his health-​related interests cannot provide a conclusive reason in favor of intervention in his affairs, whatever others might think of the matter. SC2 may thus gain some plausibility from the thought that people have special authority over judgments concerning their own interests or well-​being, so that it is especially objectionable to disregard or override these judgments in our treatment of them.22 Indeed, it may seem presumptuous for others to intervene on the grounds that the individual is mistaken about how his own interests are to be ranked. To be sure, SC2 may still permit some intervention in the self-​regarding sphere. For instance, an agent who makes imprudent choices as a result of weakness of will, and who believes that intervention would be in his best interest, may sometimes be capable of accepting a paternalistic rationale as a conclusive reason in favor of interference. Such interference may not seem objectionable, however, because it does not seem to impose values on the target.

21. In some cases a person may deny that his interests provide a conclusive reason in favor of intervention only because he has mistaken or unfounded beliefs about empirical matters of fact. In such cases, however, the person’s mistaken view of his interests arguably does not flow from his own conception of the good in the relevant sense. 22. It is worth flagging a preliminary difficulty for SC2. Suppose that Bert agrees that some particular intervention would be in his best interest and, further, that he would positively welcome such intervention, if it were not for his belief that it would wrongly burden Abdul. SC2, as stated, may imply that intervention in Bert’s affairs cannot be justified on the paternalistic grounds that it would serve his interests, since Bert does not regard this rationale as conclusive. Yet we might be reluctant to say that intervention in this case imposes values on Bert, since he is opposed to intervention only out of concern for Abdul. Perhaps SC2 should be modified, then, to say that a paternalistic rationale cannot provide a conclusive reason in favor of an act or policy that limits a person’s liberty unless he, focusing only on his interests and setting aside other moral concerns, can endorse the rationale as providing such a conclusive reason. This modification may have its costs, however, for a reason that I explore later: there may be some cases in which a person makes a self-​sacrificial choice designed to benefit others. In these cases, it may be that the person in question would accept that his interests provide a conclusive reason in favor of intervention if he were to ignore what is at stake for others, and yet intervention might nonetheless be classified as objectionable by most anti-​paternalists.

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SC2, while initially promising, can be questioned on at least two grounds. First, it is not clear why we ought to accept SC2. Second, even if we ought to accept it, it may not underwrite the anti-​paternalist’s desired conclusions. Consider each of these points in turn. For the first, recall that we are now examining paternalistic rationales that satisfy the weak constraint and thus appeal to appropriately neutral interests, such as interests in health. SC2 does not deny that these rationales can provide valid (pro tanto) reasons. Instead, it implies only that these rationales cannot provide conclusive reasons, unless the target accepts (or, in some suitable sense, can accept) that they provide conclusive reasons. (This is how the strong constraint differs from the weak constraint.) But now we might ask: if a consideration provides a valid and admissible reason for intervention, why should we conclude that it cannot possibly provide a sufficient or conclusive reason for intervention? To return to our example, if even the smoker agrees that his health-​related interests provide some reason in favor of intervention that would deter his smoking behavior, what basis could there be for thinking that these interests cannot fully justify intervention, especially if they are in fact weightier than any competing interests that would be frustrated by intervention? One possible strategy would be to argue that we ought to weigh the target’s interests in the way that he himself would weigh them. Thus, if the target, reasoning well from his conception of the good, maintains that an act or policy is likely to advance some of his interests but frustrate even more important of his interests, then we should conclude that although there are valid reasons, grounded in the former interests, in favor of intervention, there are even stronger reasons, grounded in the latter interests, against intervention. In this case, appeals to the target’s interests would not provide a conclusive reason in favor of intervention. For example, if a smoker claims that the pleasures of smoking outweigh the health risks, then we ought to count his interest in smoking-​related pleasure as more important than his interest in avoiding the health effects of tobacco use, even if we (justifiably) believe that the latter interest is more important.23 Interpreted as a general thesis about how we ought to assess liberty-​ limiting acts and policies, this response seems implausible. In general, it does not seem that we are required to weigh the burdens (or benefits) a person would receive from a liberty-​limiting act or policy in the same way

23. So far as I am aware, no anti-​paternalist has explicitly endorsed the view we are now considering. It may be suggested, however, by the common claim that paternalism is objectionable when the paternalistic agent weighs values in a way that the target would not.

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that he himself would. We might agree, for example, that some particular policy would be justified only if it imposes no major burdens on anyone. But the relevant question is whether the policy actually would impose major burdens on anyone, not whether anyone sincerely (but mistakenly) claims that the policy would impose major burdens on him. The suggestion that we ought to weigh the target’s interests in the way that he himself would weigh them faces a further difficulty: it does not appear to condemn intervention in some choices that are aimed at promoting or securing goods that are unrelated to the decision-​maker’s interests or well-​ being. Consider an example. Suppose that someone volunteers to advance the cause of medical research by taking a potentially risky and previously untested drug, in order to spare the animal subjects who may otherwise be harmed during clinical trials.24 Such a person might well regard his choice as self-​sacrificial—​that is, even he might concede that his choice is likely to harm him and that intervention would be in his best interest. He acts as he does for the sake of others. Many anti-​paternalists would argue that intervention in the self-​sacrificial choices of competent adults cannot be justified on paternalistic grounds, or at least that such intervention is objectionable in the way supposedly characteristic of paternalism.25 But in such cases, the competing goods in question are not all connected to the target’s self-​interest or well-​being, even as he understands it. Since the target who regards his choice as self-​sacrificial may well recognize that intervention would serve his best interest or promote his well-​being, the proposal we are considering cannot obviously rule out the possibility that paternalistic rationales sometimes provide sufficient grounds for intervention in such choices. To be sure, the anti-​paternalist might concede that the objection from value imposition impugns some, but not all, paternalistic rationales. Such a response, however, would seem unconvincing in the present context. After all, the case just described, in which a person voluntarily sacrifices his own well-​being for the sake of some other ideal, would appear to be precisely the sort of case in which proponents of the objection would want to claim that intervention involves the wrongful imposition of values. It thus appears unlikely that SC2 can be defended on the grounds that we ought to weigh a person’s own interests in the way that he himself would weigh them. And deprived of this view, it is not entirely clear how SC2 ought to be defended.

24. This case is from VanDeVeer (1986: 126). 25. See, for instance, VanDeVeer (1986: 126–​28) and Beauchamp (1977: 78).

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Let us set aside these concerns, however, and suppose that we ought to accept the claim advanced by SC2: a rationale that appeals exclusively to a competent adult’s own interests cannot provide a conclusive reason in favor of intervening in his affairs unless he can regard this rationale as providing such a conclusive reason. Even if this claim is accepted, the anti-​ paternalist argument confronts a serious problem:  SC2 cannot be easily applied to policy contexts. This problem has at least two dimensions. First, as I observed in c­ hapter 1, any actual policy is likely to be supported by a host of different rationales, some paternalistic and some not. SC2, however, is a view only about the conditions under which a wholly paternalistic rationale can generate a conclusive reason for intervention. (This is how SC2 differs from both SC1 and the weak constraint.) Since SC2 leaves open the possibility that sound paternalistic rationales provide valid (but not conclusive) reasons in favor of intervention, it has nothing to say about “mixed” rationales that appeal both to a person’s own interests and to other (nonpaternalistic) considerations. This suggests that a defender of paternalism could simply work around SC2 by combining paternalistic rationales with (perhaps less weighty) nonpaternalistic rationales, and then arguing that intervention is justified by the combined mixed rationale. Second, whether there is a conclusive paternalistic rationale for a public policy rarely hinges on the policy’s effects on any single person. Instead, the full justification for the policy will likely be that it brings significant enough benefits to enough people. To appreciate this point, suppose again that some individual smoker denies that his health-​related interests provide a conclusive reason to limit his liberty or opportunity to buy and smoke cigarettes. SC2 would then imply that we cannot appeal solely to his own interests in order to justify intervention in his affairs. A paternalist defender of restrictive anti-​tobacco policies, however, might concede this point and claim, first, that the individual smoker’s health-​related interests may still provide some reason in favor of such policies and, second, that the full or conclusive justification of such policies appeals to their overall benefits for all current and prospective smokers. Anti-​tobacco laws may be supported on the grounds that, if successful, they would prevent the deaths of hundreds of thousands of prospective smokers each year. This is obviously not a claim about any single person’s well-​being. Thus, its status as a conclusive rationale is not challenged by SC2, which focuses only on an individual’s attitudes toward rationales that appeal exclusively to his own interests. Of course, someone might object that even if anti-​tobacco laws would save hundreds of thousands of lives per year, this would not be sufficient to justify them. But since this would not be a judgement

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about the relevance of the individual’s own interests, it would impugn the imagined rationale for anti-​tobacco policies only if we were to accept the original SC1. While SC1 seems too strong for the anti-​paternalist’s purposes, SC2 seems too weak. How might the anti-​paternalist attempt to circumvent these problems? The most obvious strategy would be to endorse a constraint on the conditions under which a person’s interests can provide any reason (and not just conclusive reason) in favor of a liberty-​limiting act or policy. The anti-​paternalist could then argue that under the relevant conditions a person’s interests cannot factor in as valid components of a mixed rationale or a rationale that also appeals to the interests of others. Of course, we have already considered a constraint of the relevant kind—​the weak constraint. What the anti-​paternalist apparently needs, then, is a constraint (i) that disqualifies some interests from furnishing any valid reason in favor of liberty-​limiting acts and policies, (ii) that is stronger than the weak constraint discussed in section 4.1, and (iii) that represents a plausible elaboration of the idea that paternalism imposes values on people. It is not entirely clear how a constraint of this sort might be defended. Consider, however, one final proposal. Perhaps people can “waive their benefits.”26 To say that a person can waive his benefits is to say that he can exempt these benefits from counting as part of a justification in favor of an act or policy. Consider our smoker once again. While this person might well concede that intervention in his behavior is likely to benefit him in some respect, he might waive these benefits, so that they do not count in favor of an anti-​tobacco policy. This sort of view gives people authority over their interests in that it gives them some discretion about whether, and how, these interests might factor into valid moral justifications: a person’s interests do not count in favor of intervention if he does not want them to so count. The objection to the pro-​paternalist position, then, would be that a paternalistic target has usually waived (or is prepared to waive) his benefits. And waived benefits, the suggestion goes, cannot generate valid, much less conclusive, reasons in favor of intervention. We might thus arrive at a constraint of the following sort: The Waiver Constraint:  Benefits that are waived by a beneficiary—​viz., benefits that the beneficiary does not want to count in favor of an act or policy—​cannot provide valid reasons in favor of this act or policy.

26. See Brennan (1994: 427–​28). Brennan denies that people can waive their benefits, however.

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The claim that paternalism imposes values on people may thus be interpreted as the claim that paternalistic rationales are invalid when, and because, they appeal to benefits that have been waived. The idea that people can waive their benefits may need to be further developed. But I suspect that any way of developing it is likely to encounter two obstacles. First, it is simply unclear that people can waive their benefits. In this regard, notice that if people can waive their benefits, they might do so in cases not ordinarily thought to raise normative questions about paternalism. In particular, the claim that people can waive their benefits has potentially problematic implications about certain multi-​party cases. Let us suppose, for the sake of argument, that an act or policy that imposes a particular sort of harm on one person is permissible if, and only if, it produces benefits of a particular sort for each of at least ten others. (For the sake of the argument, the precise number and other details are not important.) Now imagine that an act would impose the relevant sort of harm on one person, George, and provide sufficiently large benefits to each of ten others, nine of whom are eager to obtain these benefits. One of the ten, however, waives his benefits (perhaps because he fails to appreciate the significance of the benefits he will receive, or perhaps because he does not want George to be harmed on his account). The view we are now considering would imply that the unwaived benefits to the nine, but not the waived benefits to the one, count in favor of the act that would harm George. Since the unwaived benefits to the nine are, ex hypothesi, insufficient to justify the harm to George, the act in question would then be impermissible. Nonetheless, it seems to me that there is a strong case that the act is permissible. The one beneficiary who purports to waive his benefits, we might think, cannot thereby deprive the other nine of the benefits that it would otherwise be permissible to give them.27 One might respond to this case by arguing that a person can waive his benefits when, and only when, there is no one else who stands to benefit from the relevant act or policy (or at least no one else who has not in turn waived his benefits). Such a response may be ad hoc. Perhaps more importantly, however, it would undermine the practical significance of the waiver constraint: as we have seen, virtually all policies, paternalistic or otherwise, have effects on multiple people, some of whom are unlikely to waive their benefits.28

27. For a similar point, see Brennan (1994: 427). 28. In the case of tobacco, for instance, even if we set aside familiar concerns about “second-​hand” or environmental tobacco smoke, there are almost surely some people who support restrictions because they believe such restrictions will reduce their own temptation to smoke.

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Indeed, the waiver constraint may have implications for policies that many people would support on wholly nonpaternalistic grounds. Many people believe, for instance, that some gun control laws can be justified on the nonpaternalistic grounds that they would reduce violent crime. Suppose, for the sake of argument, that some such laws would in fact have this effect. Still, many people oppose gun control laws. If told that they may benefit from increased gun control, some of these people might want to “waive their benefits.” Yet it is far from clear, to say the least, that the total benefits of gun control laws ought to discounted for this reason. A second problem for the waiver constraint is that it may not apply to some of the cases in which anti-​paternalists are most likely to claim that intervention would impose values on people. This is because someone who denies that intervention would benefit him (on balance) may be unlikely to waive his benefits. Consider the Jehovah’s Witness who refuses a life-​saving blood transfusion. The Witness may explain his decision as follows: “I can see why others want to save my life. The fact that I will die without a transfusion, and that I have a happy and rewarding life, provides some reason in favor of treatment. Still, if I were to consent to the transfusion, against the dictates of my religion, I would be punished in the afterlife. Thus, despite what others may think, my choice is not contrary to my own good. If the transfusion were in my best interest, and if I were merely ‘throwing my life away,’ as others falsely claim, then I would want others to intervene. But these things are not true.” In this case, it is not at all obvious that the Witness has waived (or attempted to waive) his benefits; after all, even he concedes that it would be perfectly acceptable for others to intervene if such intervention were in his best interest.29 Nonetheless, I take it 29.  Daniel Groll has suggested (in personal correspondence) that the Jehovah’s Witness might best be interpreted as waiving his purported benefits, or as directing the paternalistic agent to disregard the benefits as the paternalistic agent sees them. This sort of suggestion may build on the view developed in Groll (2012). It is not clear to me that it solves the problem, however. Suppose that the Jehovah’s Witness has the following set of attitudes: (i) if the blood transfusion would save his life without damaging his prospects in the afterlife, then he should be given the transfusion, but (ii) if the blood transfusion would save his life and damage his prospects in the afterlife, as he believes it would, then he should not be given the transfusion. In this case, it is not clear that the Witness is best regarded as waiving his benefits; after all, he wants these benefits to count toward intervention that would, on balance, benefit him. To take an analogy, suppose that someone who has been in an accident will die unless he receives a double leg amputation. He might have the following set of attitudes: (i) if the double amputation would enable him to live a happy life (where happy is understood in hedonic terms), then he should be given the amputation, but (ii) if the amputation would enable him to live only a miserable or depressed life, then he should not be given the amputation. Under these circumstances, it is far from clear that the accident victim should be regarded as having waived his benefits if he opposes amputation only

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that most proponents of the objection from value imposition would hold that intervention on behalf of such a Jehovah’s Witness would wrongly impose values on him. Before we turn to a further set of concerns, it is worth pausing to briefly take stock. I have distinguished several versions of the generic constraint on reasons that appears to be associated with the objection from value imposition. According to the weak constraint, a paternalistic rationale cannot provide any reason in favor of liberty-​limiting intervention unless the target is capable of regarding it as providing a reason. As I argued, the weak constraint cannot rule out paternalistic rationales that appeal to neutral values such as health, psychological well-​being, or financial security. According to a stronger version of the constraint, the paternalistic target’s interests cannot generate a conclusive reason in favor of liberty-​limiting intervention unless the target can recognize, from within his own conception of the good, that his interests provide such a conclusive reason. This proposal, however, proves difficult to defend and cannot be easily applied to policy contexts. A final view, just suggested, holds that the paternalistic target’s interests cannot generate valid reasons in favor of intervention unless he in some sense wants his interests to be so considered. This proposal appears to have implications that even many anti-​paternalists would find unattractive.

4.3 “MEANS-​R ELATED” VS. “ENDS-​R ELATED” PATERNALISM: PROBLEMS

Up to this point, I have been focusing on paternalistic rationales that satisfy the weak constraint described in section 4.1, insofar as they appeal to values or interests that all can recognize. An anti-​paternalist critic, however, may be only too eager to point out that even if some paternalistic rationales appeal to such neutral values, others do not. In particular, some paternalistic rationales may appeal to contentious value judgments to the effect that it is good for a person to pursue what is objectively worthwhile or bad for a person to do what is degrading or undignified. For example, consider a moral paternalistic rationale in favor of prostitution laws. (Recall that a moral paternalistic rationale appeals to the claim that intervention would promote a person’s “moral good” by, say, advancing his interest in attaining

because he believes (mistakenly) that life afterward would be miserable. I further discuss several moral issues raised by this sort of case in Hanna (2013).

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virtue or responding appropriately to certain moral values.30) Suppose, then, that one were to argue that prostitution is sinful or degrading, that people who engage in sinful or degrading behavior are thereby made worse off, and that the state thus has good reason to adopt measures to discourage the voluntary sale or purchase of sexual services (assuming, at least, that such measures would be effective).31 Many defenders of political neutrality would reject this sort of moral paternalistic rationale for prostitution laws. Of course, some would reject it simply on the grounds that the relevant evaluative claims are mistaken: they might argue that prostitution is not sinful or that one has no prudential interest in avoiding sin for its own sake. Many defenders of political neutrality, however, would argue that we should be able to rule out the supposedly problematic rationale even without taking a stand on these questions.32 Just as many would argue that certain religious doctrines, even if true, cannot provide valid reasons in favor of government policies, some would argue that one’s supposed interest in attaining virtue or avoiding vice, even if genuine, cannot provide a valid reason in favor of intervention. How, if at all, can pro-​paternalists accommodate this thought? Before I offer an answer to this question, I want to consider an alternative view that may seem tempting. Some recent defenders of paternalistic policies have appealed to a distinction between “means-​related” and “ends-​ related” paternalism.33 As this distinction is commonly drawn, means-​ related paternalism is “focused on correcting mistakes that people make in choosing the means to satisfy their own ends.”34 Ends-​related paternalism, by contrast, is designed to help people pursue and achieve ends that are different from, and supposedly more valuable than, those they actually hold. Defenders of the means-​related/​ends-​related distinction generally claim that ends-​related paternalism can be justified only on a perfectionist view according to which the government ought to promote goods that are objectively valuable. To say that a good is objectively valuable in the sense at issue is to say that its value does not depend on the target’s desiring

30. For relevant discussion of moral paternalism, see de Marneffe (2018), Dworkin (2005), Scoccia (2000), Feinberg (1988: 16–​17), and section 1.2.2. Once again, notice that a moral paternalistic rationale is distinct from a moralist rationale, since the latter appeals to the claim that some behavior is immoral or otherwise undesirable even apart from its effects on anyone’s interests. 31.  This rationale is offered as an example of moral paternalism by Dworkin (2017: sec. 2.5). 32. For a good statement of this point, see Nagel (1987: 216–​17). 33.  Le Grand and New (2015:  27–​ 30), Sunstein (2014:  63–​ 71), and Conly (2013: 102–​12). 34. Sunstein (2014: 164).

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it or adopting other pro-​attitudes toward it.35 At least on the face of it, means-​related paternalism may seem easier to justify than ends-​related paternalism. Sarah Conly defends coercive means-​related paternalism on the grounds that it, unlike ends-​related paternalism, merely gets people “to where they want to go.”36 She describes her view as follows: The paternalism I promote here is not a paternalism about ultimate ends; that is, I  do not argue that there are objectively good ends, or objectively rational ends, or ends objectively valuable in any way, which everyone should be made to pursue. I am arguing for intervention in cases where people’s choices of instrumental means are confused, in a way that means they will not achieve their ultimate ends. If my subjective end is happiness, and I think playing the lottery will promote that, not because the suspense gives me some evanescent pleasure, but because I really think I have a reasonable chance of winning, I am mistaken about my means.37

Conly ultimately endorses a form of paternalism that advances “individual welfare construed as the maximization of the fulfillment of subjective ends.”38 She concludes that a relatively wide range of interventions can be justified on these grounds. For instance, in the name of promoting health, Conly endorses restrictions on tobacco and on portion sizes at restaurants.39 By contrast, Conly would presumably reject our imagined moral ­paternalistic rationale for prostitution laws, since this rationale seems to presuppose that certain forms of sexual behavior are objectively bad for people, whatever these people may think of the matter.40 The means-​related/​ends-​related distinction is slippery, however, and it is not clear that it can bear the weight placed on it.41 Consider Conly’s claim that paternalistic intervention is justified only when a person’s choice of instrumental means is “confused.” This claim would seem to support 35. Conly (2013: 102–​12); see also Le Grand and New (2015: 30–​31). 36. Conly (2013: 33); see also Sunstein (2014: 61–​62). 37. Conly (2013: 43, emphasis added). 38. Conly (2013: 102). Similarly, Le Grand and New (2015: 103) claim that there is no “objective” way to establish that a person has made a mistake in identifying his ultimate ends. Consequently, they hold that intervention should be concerned only to correct for “reasoning failures,” such as limited imagination, limited technical ability, limited willpower, and limited objectivity (Le Grand and New [2015: chap. 5]). 39. Conly (2013: 162–​72). 40.  There may, of course, be other paternalistic rationales in favor of prostitution laws that do not appeal to contentious values or embrace moral paternalism. See de Marneffe (2010: chap. 1). I set these arguments aside here, however. 41. Wertheimer (2014: 351), for instance, offers several cases suggesting that it may be difficult to neatly distinguish means from ends.

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intervention when a person’s choice is induced by ignorance or mistaken belief.42 Suppose, for instance, that I am mistakenly about to board a train to Chicago, when I am in fact attempting to travel to Milwaukee. If an astute railway employee quickly shoves me onto the Milwaukee train just as the doors close, it seems clear that he has corrected my mistaken use of instrumental means and thus (literally, in this case) gotten me to where I want to go. But proponents of means-​related paternalism generally support intervention in a much broader range of cases than this. While Conly argues that anti-​tobacco policies can be justified on means-​related paternalistic grounds, she provides little reason to think that the average smoker is unaware of the likely consequences of his behavior. Julian Le Grand and Bill New likewise claim that it is mere means-​related paternalism for the government to increase tobacco and alcohol taxes, at least if its rationale for doing so is that the consumer is likely “to misjudge the balance of pleasures now against the risks to health in the future.”43 This sort of case, however, is quite different from the simple train example. It is far from clear how intervention undertaken on behalf of someone who “misjudges” the balance of pleasures against health risks merely corrects for a confused choice of instrumental means. People smoke, among other reasons, in order to obtain whatever pleasure they find in smoking. And even if smoking is imprudent, it is obviously a very effective means of obtaining smoking-​related pleasure. The person who smokes for the sake of pleasure is thus unlike the person who mistakenly boards a train headed in the wrong direction. In response to this concern, one might appeal to Conly’s claim that paternalism is merely “means-​related” when it increases individual welfare understood as the fulfillment of desire. Intervention in such a case may seem only to promote the target’s own goals.44 In assessing this response, however, we should be careful to distinguish two claims that might be made about some particular intervention. The first is that the intervention would increase the fulfillment of the target’s current (basic, noninstrumental) desires.45 The second is that intervention would increase 42. Though I discuss further problems raised by these cases in c­ hapter 6. 43. Le Grand and New (2015: 51). 44. Conly (2013: 102). 45. A desire is merely instrumental if one has it only because one believes that its fulfillment would lead to the fulfillment of other desires. A desire is basic if it is not instrumental in this sense. I will generally leave the restriction to basic desires implicit in what follows. To be sure, many desire-​based theories of well-​being attend not (only) to a person’s actual desires but, rather (or also), to his informed or idealized desires. I will set aside this complication, since if anything it is likely to make the means-​related/​ ends-​related distinction even more difficult to defend.

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the overall fulfillment of the target’s desires over the course of his whole life. These two claims generate two different accounts of means-​related paternalism. The first holds that paternalism is means-​related, in Conly’s sense, only when it increases the fulfillment of the target’s current desires, or provides him with what he most wants now. Call this the current desire-​ fulfillment account. The second holds that paternalism is means-​related when it increases the overall fulfillment of the target’s desires over the course of his whole life. Call this the overall desire-​fulfillment account. The current desire-​fulfillment account seems far too restrictive for Conly’s purposes.46 If someone’s strongest current desire is to smoke, then interference in his smoking behavior cannot reasonably be expected to give him what he now wants. Moreover, if one were to adopt the current desire-​fulfillment account, it would be misleading for one to argue, as means-​related paternalists commonly do, that ends-​related paternalism presupposes a “perfectionist” view according to which some goods are objectively valuable. For on the account we are now considering, ends-​related intervention need not rely on any judgment that some things are objectively good in this sense. Instead, it could rely on the judgment that intervention will increase the extent to which the target’s desires are satisfied over the course of his life. Perhaps, then, defenders of the means-​related/​ends-​related distinction would opt for the view that means-​related intervention increases the target’s overall desire-​fulfillment. On this account, however, putatively means-​related intervention cannot obviously be defended on the grounds that it helps people to take more efficient means to their chosen ends. More specifically, means-​related intervention could be defended in this way only if we were to assume that each person has the maximal fulfillment of his (other?) desires as an overridingly important end. Such an assumption seems unwarranted, however. A person might now aim or strongly desire to do something that will not maximally fulfill his desires over the course of his life. Suppose that Short-​Sighted Sal often makes imprudent choices that get him what he wants now, even though he will (reasonably) regret them later.47 Intervention on Sal’s behalf may maximize the fulfillment of his desires over the long term. But such intervention cannot be justified on 46. The current desire-​fulfillment account is also equivalent to a prominent account of the distinction between hard paternalism and soft paternalism that I shall critically examine in c­ hapter 7. 47. Alternatively, suppose that Sal often makes imprudent and short-​sighted choices but is strongly averse to others’ intervention in his affairs—​so much so that intervention would, on balance, typically frustrate his current desires, even if it would maximize his desire-​fulfillment over the long run.

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the grounds that it corrects for Sal’s confused choice of means to his own ends. For when Sal chooses, he is not choosing with the aim of doing what will best satisfy his desires over the long term. And to claim that Short-​ Sighted Sal should have some desire or aim that he does not now have is not to claim that he is instrumentally irrational. To be clear, I have not criticized the view that intervention in a person’s affairs can be justified on paternalistic grounds only if it fulfills, or leads to the fulfillment of, some of his desires. I have only been considering whether the means-​related/​ends-​related distinction can be marshaled in support of this view. For all that I have said, one might still argue that nothing is in fact objectively worthwhile and that all of a person’s interests are determined by his (idealized?) desires. It seems fair to say, however, that such an argument would itself be controversial and would likely require a great deal of elaboration.48 Moreover, if I were to embrace it, I would abandon my goal of remaining agnostic about the best theory of interests.

4.4 ADMISSIBLE AND INADMISSIBLE INTERESTS, REVISITED

Let us return, then, to the issue raised at the beginning of the preceding section. If we accept paternalistic rationales that appeal to neutral goods such as health, how can we rule out paternalistic rationales that appeal to controversial values and related interests, such as, say, the (putative) interest in avoiding sexual sin? In particular, how can we rule out such rationales without simply arguing that there are no such non-​neutral interests? The answer to this question lies in the distinction, drawn in c­ hapter 1, between generally admissible and generally inadmissible interests. Recall that an interest is admissible if it provides valid reasons in favor of acts and policies that do not appear to raise any normative concerns about paternalism—​for instance, acts and policies undertaken with the consent, or at the request, of those to whom they apply, or acts and polices that prevent some people from (nonconsensually) harming others. An interest is inadmissible, by contrast, if it does not provide valid reasons in favor of such acts and policies. Various interests associated with health are admissible in the sense just described: many anti-​paternalists would agree, for

48. To be sure, Conly (2013: 107–​12) does seem to argue against perfectionism as a theory of well-​being. I will here merely record my judgment that Conly’s admittedly brief arguments certainly deserve attention but, in the absence of further elaboration, do not provide a conclusive case against perfectionism or “objective list” theories of well-​being.

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instance, that the government has good reason to spend money on health care for those who may otherwise be unable to afford it. It is perhaps a matter of some controversy whether there are any generally inadmissible interests. Earlier, however, I  sketched the following example. Suppose that you are able to cheer up a sadist, Betty, by showing her a video of her enemy’s suffering. (And imagine that you were able to obtain the video through nonwrongful means.49) A hedonist might argue that Betty has an interest in experiencing the sadistic pleasure that would result from her watching the video, on the grounds that she has an interest in experiencing any pleasure whatsoever. Still, the hedonist might argue that you have absolutely no reason to satisfy Betty’s interest in experiencing such pleasure, even if she greatly desires it. On this view, Betty’s interest in experiencing sadistic pleasure of the relevant sort is inadmissible. For present purposes, the important point is that if there are any generally inadmissible interests, then the pro-​paternalist should concede that such interests do not furnish valid rationales for intervention. This concession would not, however, show that there is anything distinctively objectionable about paternalism. This is because inadmissible interests, by definition, do not furnish valid rationales even in favor of acts and policies that do not raise moral concerns about paternalism.50 If one believes that a certain sort of interest is generally inadmissible in this sense, then it would be dialectically unfair to saddle the pro-​paternalist with a view on which the relevant sort of interest provides valid reasons in favor of liberty-​limiting intervention. Put another way, if one argues that certain types of goods or

49. See section 1.2.2. 50. Strictly speaking, the admissibility of an interest may be relativized to a certain agent or context. Perhaps certain interests are generally inadmissible with respect to government actions but not with respect to the behavior of individuals. Indeed, many defenders of neutrality claim that it applies only to the political domain. If so, one might ask, how can the pro-​paternalist rule out perfectionist intervention as carried out by individuals? The central point to make here is that there are a variety of contexts in which we think that intervention, if it is to be carried out at all, ought to be carried out by the government. As we saw in section 1.4.2, from the fact that there ought to be speed limits, it does not follow that individual citizens should be permitted to stop speeders and issue speeding tickets. Thus, one can probably explain why individuals should not be permitted to unilaterally use coercive intervention on behalf of non-​ neutral values in much the same way that one can explain why individuals should not be permitted to unilaterally use coercive intervention on behalf of neutral values. Of course, this line of argument would not have anything to say about the use by individuals of noncoercive intervention (for instance, omissions or nudges) on behalf of non-​neutral values. I  suspect that the most promising objections to noncoercive paternalism, however, will appeal to the sorts of insult-​based considerations already discussed in ­chapter 3. I further discuss some of the problems raised by paternalistic nudges in c­ hapter 8.

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interests are by their nature unsuited to figure in justifications for public policies of any sort, then one has given a general objection to attempts to promote or secure these interests, not an objection to pro-​paternalism. Pro-​paternalism can and should regard as (in)admissible those interests, whatever they are, that do (not) provide valid reasons in favor of government acts and policies more generally. To appreciate this point, it will be useful to consider some examples. Virtually everyone accepts a permissive view about paternalism toward children. Because children are immature, it seems permissible for others, including the state, to act in their best interests. Most agree that policies restricting children’s liberty or opportunity to use dangerous drugs or engage in prostitution are justified on this basis. But consider:  Is it a valid reason in favor of such polices that children have an interest in avoiding objectively immoral or degrading behavior and that prostitution and drug use, say, are immoral or degrading in this way? My suspicion is that most liberals would answer in the negative, at least if they believe that contentious value judgments (about the nature of virtue, for instance) cannot serve as an adequate basis for government policy. Yet few of us would think that this point shows that the government should not be “in the business” of acting in the best interests of children, or that there is anything uniquely objectionable about government intervention on behalf of children. The neutralist’s point seems to be instead that the putative interests people have in achieving virtue or in avoiding degradation simply do not provide valid reasons in favor of any law or government program. Other examples reinforce this observation. Even if prostitution were to be fully legalized, there may be some ways to reduce its incidence that would not seem to raise serious concerns about paternalism. For instance, the government might create a program under which citizens can choose to add themselves to a list of people to be denied entry to brothels (in much the same way that some governments now allow citizens to restrict their own access to casinos). Likewise, even if a certain recreational drug were fully legalized, the government might create a helpline to assist those who wish to end their drug habit. Most anti-​paternalists would deny that such policies are objectionably paternalistic: the former policy restricts a person’s liberty only at his explicit request, and the latter merely offers people desired assistance.51 Yet most proponents of liberal neutrality would presumably argue that these policies cannot be justified on the non-​neutral

51. For the view that it is not objectionably paternalistic to restrict someone’s freedom at his own voluntary request, see Quong (2011: 105–​106), Feinberg (1986: 68–​70), and

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grounds that they benefit people by deterring sinful behavior (even if such policies can be justified on other grounds).52 If the objection to a putatively non-​neutral rationale would apply even if the intervention it supports were whole-​heartedly welcomed by the target, then the objection would not appear to show that there is anything distinctively problematic about paternalism. Indeed, a similar point emerges when we reflect on policies that prevent (and are designed to prevent) harm to others. If people have interests associated with controversial objective values, then these interests might be frustrated not only by self-​regarding behavior but also by behavior that affects others without their consent. (Thus, some might argue that people have interests in adhering to certain controversial ideals of sexuality and that this is one way—​though obviously not the only way—​ in which they can be harmed by nonconsensual sex.) Many liberals would likely argue that such putatively non-​neutral interests cannot provide valid reasons in favor of policies that would protect some people from the behavior of others (even if these policies can be justified on other grounds). But few would regard this as an objection to a Millian principle that would permit intervention to prevent other-​regarding harm. To be clear, I  have not here defended the neutralist view that controversial or perfectionist goods are unsuited to figure in justifications for public policies. My aim has only been to defend pro-​paternalism. Either controversial objective goods and associated interests provide generally admissible reasons in favor of nonpaternalistic acts and policies (that is, acts and policies that would be accepted even by staunch anti-​paternalists), or they do not. If they do not, then the pro-​paternalist can consistently reject rationales that appeal to such interests, without thereby conceding that there is anything distinctively objectionable about paternalism. If, on the other hand, perfectionist goods and associated interests generally do provide admissible reasons, then it is far from clear that we have any

VanDeVeer (1986: 49–​58), among others; for a similar point as applied to prostitution laws in particular, see Le Grand and New (2015: 21). 52.  Moles considers a case that is somewhat similar to the one described earlier: “Imagine that a certain group of Catholics believe that they ought to refrain from pre-​marital sex. However, given the weakness of the flesh, few of them succeed. Imagine that the government could devise a nudge that was effective with Catholics, but easily resistible for everyone else. I do not see why it would be wrong for the government to help them act in line with their deepest convictions” (2015: 666–​67). Moles seems to think that the “nudge” in this sort of case would be justified, even on liberal grounds, because it helps the Catholics get what they want. Notice that this rationale in favor of the policy is different in kind from the rationale we have been examining, which holds that commercial sex really is sinful (and not merely that some people want to avoid it).

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principled basis for denying that they provide valid reasons in favor of acts and policies that limit a person’s liberty for his own good.53

4.5 A PROBLEM CASE: THE JEHOVAH’S WITNESS

There may still be a lingering concern related to the objection from value imposition, however. Even if everything I have said so far is correct, pro-​ paternalism may sometimes support certain types of intervention that many people would regard as clearly objectionable, such as intervention in self-​regarding choices motivated by the decision-​maker’s religious beliefs. The most widely discussed case of this sort involves life-​saving intervention on behalf of a Jehovah’s Witness (JW) who refuses a blood transfusion. Intervention in this sort of case is aimed at promoting neutral goods such as longevity and health. Since few people would object if these goods were promoted through nonpaternalistic means—​for instance, through a government program that provides medically necessary blood transfusions for those who would otherwise be unable to afford them—​the argument of the previous section cannot be used to rule out intervention on behalf of the JW. I want to set aside, for the remainder of this section, the question of whether there is something objectionable about paternalism in general. Instead, I want to focus on the narrower question of whether there is something particularly objectionable about intervention on behalf of the JW, since this sort of case is sometimes thought to pose a special problem for pro-​paternalism. Though the following discussion will center on the JW case, we should keep in mind that it is emblematic of a broader range of cases. Thus, some Christian Scientists refuse all medical care in favor of prayer treatment. Members of some Pentecostal churches handle venomous snakes during religious services; the bites they sustain, and their subsequent choices to refuse medical treatment, are sometimes lethal. At 53.  Simon Clarke (2006) defends a view that he calls “Neutrality for Paternalism Only (NPO).” His NPO requires that the state be neutral with respect to paternalistic policies, but not with respect to nonpaternalistic policies (Clarke [2006: 117]). On the face of it, however, such a view seems difficult to defend. Clarke briefly suggests that NPO provides one way of balancing the values of freedom and well-​being against each other (2006: 120). Yet even if we assume, as Clarke does, that successful perfectionist policies promote well-​being, it is difficult to see why the value of well-​being should always take a backseat to the value of freedom when we are contemplating perfectionist paternalism, but not when we are contemplating other sorts of policies. After all, even if NPO provides one way of balancing freedom and well-​being against each other, there are surely other possible ways of balancing them.

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least on the face of it, those who are opposed to intervention in the JW case should also be opposed to intervention in these other cases.54 I believe that pro-​paternalism would at least sometimes support intervention on behalf of a nonconsenting JW. There are only two ways to deny this implication. One would be to argue that such intervention would not be in the JW’s best interest.55 Though there may be some cases in which this is true, I  doubt that it is true in all cases. If a JW would surely die without a transfusion, and if the transfusion would likely provide the JW with many additional years of life during which he would pursue activities and relationships that he values and enjoys, it seems to me that intervention would be in his best interest. A second way to avoid the implication would be to argue that intervention to save the JW would have undesirable effects on third parties. Thus, it is sometimes argued that if doctors treat people against their will, trust in the medical establishment will be eroded and people will be more reluctant to seek necessary care.56 Once again, I doubt that these sorts of considerations would show that life-​saving intervention always does more harm than good over the long run. More important, however, since most anti-​paternalists who oppose intervention on behalf of a nonconsenting JW are not primarily concerned with third-​ party interests, I will set this issue aside. Someone who is generally sympathetic to paternalism, or at least certain types of paternalism, might argue that even if intervention would be in the JW’s best interest, it is nonetheless wrong because religiously motivated choices are especially significant.57 To defend this view, one would first need to offer a criterion by which to distinguish putatively significant choices from other sorts of choices and then show that this criterion is morally relevant. Obviously, if relatively few imprudent self-​regarding choices are especially significant in the relevant way, the proposal may only rarely diverge from pro-​paternalism in practice. I will not pursue this line of argument, however. As I indicated, I accept that there may be cases in which it is permissible to impose life-​saving 54. Interestingly, however, there is a legal difference between the cases, at least in some parts of the United States. While the law in the US recognizes the right of a (competent, adult) JW to decline a blood transfusion, snake-​handling is a misdemeanor in some US jurisdictions, including some that grant permits to own venomous snakes. For relevant discussion and criticism, see Ball (2015: 1429–​31). 55. This result may be implied by the appeal to integrity in Dworkin (1994: chaps. 7 and 8). Of course, whether intervention is in the JW’s best interest in any given case may depend on context-​specific features. The same may be true even for JW children, as Ackerman (1980) points out. 56. See Tännsjö (2015: 727). 57. This position is suggested by Scoccia (2008: 371).

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treatment on a JW against his will. Instead of denying this conclusion, I want to take a different approach: searching for companions in guilt. For despite appearances, many anti-​paternalists may also be hard-​pressed to accommodate the judgment that it is categorically objectionable to impose a life-​saving blood transfusion on a JW. To be sure, recognizing this point may not eliminate the common intuition that intervention in such a case would be objectionable. But it might make us more suspicious of the reliability of this intuition. The central reason for thinking that anti-​paternalists should sometimes support intervention on behalf of a nonconsenting JW is that such intervention may be justified on soft paternalistic grounds. Many anti-​paternalists believe that while it is generally wrong to intervene in a person’s self-​regarding affairs, exceptions should be made when a person’s choice is induced by ignorance or mistaken belief. Many would also argue that intervention is much easier to justify when a person’s choice is influenced by extreme social pressure. Consider each of these points in order. As for the first, there is a strong case that a JW’s decision to decline a transfusion is likely to be induced by ignorance or mistaken belief.58 According to the traditional JW doctrine, blood transfusions are forbidden by biblical passages such as the following: (1) “You shall not eat flesh with its life, that is, its blood” (Gen. 9:3–​5); and (2) “Therefore I have reached the decision that we should not trouble those Gentiles who are turning to God, but we should write to them to abstain only from things polluted by idols and from fornication and from whatever has been strangled and from blood” (Acts 15:19–​20). The traditional doctrine also teaches that those who break God’s laws may thereby lose “everlasting life.”59 It seems doubtful, however, that the relevant biblical passages are most plausibly interpreted as prohibiting blood transfusions. If the traditional JW doctrine results from simple textual misinterpretation, and if the JW ultimately desires to live in accordance with the moral injunctions that are actually included in the Bible, then it is unclear why intervention to save his life should be thought to impose values on him. Intervention would merely provide him with what he would want if fully informed. Likewise, if the JW refuses a transfusion so that he can enjoy eternal life after Armageddon, and if his refusal makes it no more likely that he will enjoy eternal life, then intervention would not appear to thwart his most fundamental aims. Such

58. Savulescu and Momeyer (1997: 283–​85) and Glass (1983). 59. Watch Tower Bible and Tract Society of Pennsylvania (2005: 131).

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concerns regarding mistaken belief are perhaps even more severe in other cases mentioned earlier; for instance, some Christian Scientists appear to reject the germ theory of disease.60 Of course, defenders of soft paternalism claim that it is permissible to intervene in order to correct for mistaken descriptive beliefs, not mistaken evaluative beliefs. But some of the beliefs just described appear to be descriptive in this sense.61 Turn now to a second point. JWs in need of transfusions are likely to face strong social pressure to refuse them. JWs who consent to a transfusion may be ostracized, and their relationships with co-​religionists, friends, and even close family members may be transformed or severed.62 In this regard, it is worth recognizing that anti-​paternalists who permit soft paternalism sometimes claim that severe forms of social pressure, under the right circumstances, can compromise the voluntariness of choice and render intervention more easily justified.63 Moreover, in the case of JWs, the result of such social pressure may be that some people refuse transfusions in “bad faith,” or that what they most desire is to be given a transfusion over their explicit refusal.64 (Thus, it has been suggested that JW parents are sometimes “relieved” when deprived of the ability to make medical decisions on behalf of their children.65) This concern is especially acute because JWs believe that one has done no wrong, and thus will not be punished in the afterlife, if one is given a transfusion against one’s will. The second point, regarding social pressure, probably does not succeed in showing that JWs never voluntarily refuse blood transfusions; the first point, regarding mistaken belief, seems more daunting. As we shall see in ­chapters 6 and 7, however, many anti-​paternalists accept intervention if there is a serious risk that the target’s self-​harmful behavior is ill-​informed or impaired. The considerations just described may show that there is 60. Many observant Christian Scientists apparently hold that “sickness is the manifestation of a conflict between ‘correct’ and ‘incorrect’ thinking” and do “not believe in germs or the existence of illness.” See Vitello (2010). 61. Savulescu and Momeyer (1997: 286). 62. See, for instance, Elder (2000: 375, 378) and Muramoto (1998: 224). (The author of the former article, a dissident JW who objects to his religion’s doctrine on blood, uses “Lee Elder” as a pseudonym to preserve anonymity.) 63. Feinberg (1986: 157). In the example discussed by Feinberg, a daredevil stuntman severely injured himself during a stunt that he had been reluctant to perform until a television production crew pressured him to go through with it. 64. This is arguably true of the case presented by Tännsjö (2015: 716–​17). In this real-​ life case, a JW woman suffered a severe hemorrhage after giving birth. She initially appeared to favor a life-​saving blood transfusion but then refused after church elders were escorted into her hospital room. She died shortly thereafter. 65. Bock (2012: 655).

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usually a serious risk that a JW who refuses a life-​saving transfusion is ill-​informed or subject to similar deliberative defects. If so, there is a reasonable case that critics of pro-​paternalism, most of whom accept soft paternalism, should be open to intervention.66 Perhaps these arguments will seem unconvincing. One might deny that the relevant sorts of soft paternalistic considerations can justify intervention in religiously motivated choices, perhaps on the grounds, mentioned earlier, that such choices are in some way special. It is thus worth noting one final complication for the appeal to the special significance of religiously motivated choices: most people believe that it would be permissible to impose a life-​saving transfusion on a JW child, even if the child himself opposes such treatment (and even if the child’s parents oppose such treatment). To be clear, I am not here discussing the case in which a JW parent refuses a transfusion on behalf of an infant or a child who is too young to have any treatment preferences.67 Instead, I am considering the case in which a JW child who is old enough to have preferences—​say, a young adolescent—​refuses treatment on his own behalf. If religiously motivated choices are thought to raise special problems for pro-​paternalism, and especially if soft paternalistic arguments cannot ordinarily justify intervention in such choices, then it may be difficult to explain why it is permissible to intervene on behalf of the child. The most obvious reasons for thinking that it may be permissible to intervene in the JW child’s choice seem equally to apply to the JW adult. It has been pointed out, for example, that the consequences of not intervening on behalf of a JW child are especially grave and that, even according to the child’s own religious beliefs, he will not be punished for being treated 66. In Hanna (2018: 31–​32), I discuss the reverse of the case described here: a devout JW consents to a life-​saving blood transfusion while in the grip of fear or severe time pressures. This sort of case, I argue, may also pose problems for widely held anti-​paternalist views. 67. This sort of case may raise further complications for some defenders of liberal neutrality, however. MacDougall (2010) argues that a Rawlsian ideal of neutrality requires respect for parents’ religious objections to treatment for their children. In arguing that such parental objections should not be honored, Gutmann claims that “[a]‌ liberal argument must choose those standards that are more neutral among competing conceptions of the good life” (1980: 341). Perhaps Gutmann’s point is that the choice to provide the transfusion promotes a neutral or primary good (namely, health) that all can recognize as valuable, whereas the parents’ choice to refuse the transfusion appeals to a comprehensive religious doctrine. There is a complication here, however. Rawls, like many liberals, recognizes freedom of conscience as a primary good. And when the parents make decisions on behalf of their young child by consulting their own religious traditions, they are at least arguably exercising their freedom of conscience. Perhaps, then, the imagined case pits two primary goods—​the child’s health and the parents’ freedom of conscience—​against each other.

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against his will.68 But obviously the same is true of the JW adult. One might further add that because the child’s capacities are not fully developed, the child does not hold his religious beliefs rationally or autonomously.69 If, however, the variety of rationality or autonomy at issue is thought to require the sort of independent critical reflection of which even older children are supposedly incapable, then it is far from clear that many adults hold their religious beliefs autonomously. Some adults, for instance, claim that religious beliefs ought to be accepted on blind faith, without much critical reflection.70 Moreover, as we have seen, the religiously motivated choices of adults, no less than those of children, may be susceptible to social pressure from co-​religionists or relatives. In sum, if one argues that choices that express one’s religious convictions are in some way special and are thus protected from intervention in a way that some other self-​ regarding choices are not, it is not immediately clear that one will be able to support intervention on behalf of the JW child. And if one responds by arguing that the child’s beliefs, however sincere they may be, are not sufficiently autonomous, rational, and so forth, then we might reasonably ask whether the JW adult’s beliefs are autonomous or rational. I do not pretend to have shown that there is no way for anti-​paternalists who endorse soft paternalism to rule out intervention on behalf of a JW adult who refuses a life-​saving transfusion. My aim has been more modest. The JW case, in all its real-​world complexity, is sometimes treated as one in which intervention is “clearly” wrong.71 If this judgment is abandoned, or if matters at any rate become less clear, we may have good reason to be more wary of common anti-​paternalist judgments about such cases. The objection that paternalistic intervention imposes values on people is ubiquitous in the debate over paternalism. It is not always clear, however, how this objection should be interpreted. I have argued that it is most plausibly understood as endorsing a constraint on reasons. In the first part of this chapter, I considered several different versions of this constraint. A weak version holds that a consideration cannot provide any reason for liberty-​limiting intervention unless the target can regard this consideration as providing such a reason. As I  have argued, however, paternalistic rationales often appeal to values that all can accept, such as health,

68. Bock (2012: 655). 69. Gutmann (1980: 340). 70. For instance, some JW publications appear to instruct followers to avoid “independent thinking.” See Muramoto (1998: 224–​25). 71. Scoccia (2008: 371).

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longevity, and financial security. The anti-​paternalist might thus favor a stronger version of the constraint. The most promising candidates, however, face significant problems of their own and may not yield the anti-​ paternalist’s desired implications. In the second part of this chapter, I considered some of the problems raised by paternalistic rationales that may appear to be objectionably non-​ neutral. As I have argued, if the (putative) interests associated with controversial or perfectionist values are generally inadmissible, then one can reject rationales that appeal to these interests without conceding that there is anything distinctively problematic about paternalism. Moreover, some cases urged in favor of the objection from value imposition, such as that of the Jehovah’s Witness, may be less decisive than they initially appear.

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CHAPTER 5

Paternalism and Moderate Deontology

I

n the preceding two chapters, I have considered and rejected arguments purporting to show that paternalism is insulting or that paternalism wrongly imposes values on people. When paternalism best serves the target’s (admissible) interests, it should not be rejected on the grounds that it is prompted by objectionable motives, or expresses an insulting message, or treats the target as a moral inferior. Nor should such intervention be rejected on the grounds that it may privilege values that the target does not share. Even if the arguments offered in the preceding chapters are sound, however, an important question remains:  Is pro-​paternalism consistent with any plausible conception of rights? This may seem to be a pressing issue. After all, one of the most common complaints about paternalism is that it violates rights. Whether this complaint is warranted obviously depends not only on how we understand paternalism but also on the nature and strength of our moral rights. It seems fairly clear that pro-​paternalists can embrace moral rights of some sort. Suppose that we view rights as moral principles that restrict the way in which people can be treated, even in the name of the general good. Pro-​paternalists can happily acknowledge that people have rights that others not intervene in their affairs in ways that are contrary to their best interests (unless such treatment is necessary to protect or advance sufficiently important interests of others). A rights-​based principle of this general sort could be further fleshed out if one were to offer both (a)  an account of the conditions under which some way of treating a person is contrary to her best interest, and (b) an account of the conditions under which the interests of others are sufficiently important to justify treating a person in a way that is contrary to her best

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interest. If the latter account is appropriately stringent, then people may enjoy rather strong protections against being sacrificed for the general good. Some critics, however, may not be satisfied by this observation. They may argue that people have rights that others not treat them in certain specified ways, where the content of these rights does not refer directly to the relative weight of various interests.1 For instance, it might be claimed that one has a right, all simply, that others not trespass on one’s property, or that others not touch one’s body, or that others not perform medical procedures on one, and so forth. And perhaps such rights are basic in the sense that they cannot be derived from further, independent moral principles. In this chapter, I argue that pro-​paternalism is consistent with a plausible moderate deontological view. According to such a view, we have claim-​ rights of the sort just described—​for instance, rights against others that they not trespass on our property, or touch our bodies, and so forth. But these rights have thresholds, so that they can be permissibly infringed when enough is at stake. While such a moderate view is obviously not the only possible view about rights, it is a view that many ethicists find attractive in contexts that do not involve paternalism. It would therefore be significant if a plausible view of this sort is compatible with, or even supportive of, pro-​paternalism. I begin by explaining the moderate deontological views I  shall be discussing, indicating in the process why I focus on these views (section 5.1). I  then critically assess a moderate deontological view that seems to threaten pro-​paternalism (section 5.2). The deficiencies of this view suggest that there is a way in which moderate deontological claims can be pressed into the paternalist’s service: a right’s threshold may be sensitive to the net effect infringement would have on the right-​bearer’s interests (section 5.3). After explaining this view, I consider several alternatives to it and argue that each is likely to have implications that anti-​paternalists would find problematic (sections 5.4–​5.5).

5.1 MODERATE DEONTOLOGY

The view of moral rights that I will take as my point of departure is perhaps most prominently associated with Judith Jarvis Thomson. Thomson

1. On this point, see Shapiro (2003: 43–​44).

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notes that the language of rights is used in many different ways. Following Wesley Newcomb Hohfeld, however, Thomson holds that to attribute to someone a right in what she calls the strict sense is to say something of the following form: “X [some person or entity] has a claim against Y [some person or entity] that p,” where any relevant sentence is substituted for “p.”2 Such a right, which Hohfeld calls a “claim,” is the correlative of a duty.3 To say that Alan has a claim against Barb that Barb stay off his land is equivalent to saying that Barb has a duty to Alan that she stay off his land. Barb discharges this duty if, and only if, she stays off Alan’s land. Claims are always held against other people (or entities, such as governments or corporations). For the sake of simplicity, I will continue to use “rights” to refer only to Hohfeldian claims. To be sure, this account does not yet say anything about what moral rights people actually have. I  want to assume, however, that people have certain rights regarding their own bodies and property. Thus, as suggested earlier, I shall assume that each person has claims against others that they not touch or otherwise act on her body or property—​for instance, that they not perform medical procedures on her. I suspect that many anti-​paternalists would happily agree that people have claims of this sort, which can be waived through (voluntary, informed) consent. Suppose, then, that Alan has a right against Barb that she stay off his land. Barb is then under a certain “behavioral constraint” toward Alan.4 But does this mean that Barb may not venture onto Alan’s land under any circumstances whatsoever? Is Alan’s right absolute? Moderate deontologists such as Thomson think not. Imagine that some innocent person is in need of life-​saving first aid and that the only way for Barb to promptly reach this person is for her to cross Alan’s land. (Suppose, moreover, that Alan has not given his permission for her to cross.) In this case, most of us would say that it is permissible for Barb to cross, given the very great good at stake. More generally, we might say that rights have thresholds beyond which they can be permissibly infringed. Thomson calls this the “Tradeoff Idea”: “It is permissible to infringe a claim if and only if infringing it would be sufficiently much better for those for whom infringing it would be good than

2. Thomson (1990: 41); see also Hohfeld (1919: 36–​38). Hohfeld, unlike Thomson, is concerned with legal rights. 3.  Claims can be distinguished from other moral features that are sometimes described as rights, including privileges, powers, and immunities. For discussion of these notions, see Thomson (1990: chap. 1) and Hohfeld (1919: 38–​64). 4. Thomson (1990: 64).

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not infringing it would be for those for whom not infringing it would be good.”5 Put another way, a right is overridden when infringing it would produce a sufficiently great measure of net good, relative to the alternative of noninfringement. To be clear, moderate deontologists do not think that a right completely gives way when its threshold is met. Even if it is permissible for Barb to cross Alan’s land in order to save a life, she (or the person she saves) may be morally required to compensate Alan for any damage to his property; on Thomson’s view, this is a part of the behavioral constraint imposed by Alan’s claim.6 Likewise, if I have a right that you not kick me in the shin, it might be permissible for you to kick me in order to save another person’s life, though I may then be owed compensation for any harm done to me. At this point, it will be useful to introduce some terminology. Following Thomson, I will say that a person infringes a moral right if, and only if, she acts in a way proscribed by that right, while a person violates a moral right if, and only if, she wrongly infringes that right.7 According to the views I shall be considering, some rights infringements are not rights violations, since an infringement may be permissible all things considered, as when Barb crosses Alan’s land in order to save a life. If we accept a moderate deontological view of this sort, we can ask about the conditions under which various rights can be permissibly infringed. I will focus here only on the conditions under which a right can be permissibly infringed because of the total magnitude of good at stake—​or, as we might say, the conditions under which a right is overridden.8 According to many moderate deontologists, at least two sorts of requirement must be met if such an infringement is to be justified. The first and most familiar is a quantitative requirement, which represents the total measure of good that must be at stake: we are justified in infringing a right only if the net benefit thereby produced is sufficiently great.9 Thus, presumably I may not perform an act that will break your finger, even if doing so is necessary to

5. Thomson (1990: 152). To anticipate the argument that follows, note that it is not quite clear what we should make of this point if the infringement of the right would not, on balance, be bad for anyone, including the right-​bearer. 6. Thomson (1990: 92–​93). 7. See Thomson (1990: 122) and Kagan (1998: 80). 8. There may be other reasons why it is sometimes permissible to infringe a right. Quong (2009: 517–​18) argues that you may be permitted to infringe someone’s right in order to procure some great good for yourself or your child, though you would not be permitted to infringe the same right in order to procure a comparably great good for someone else. If this is right, then we are sometimes permitted to infringe rights for reasons of partiality, rather than the reasons provided by the (impartial) good at stake. 9. Brennan (1995a: 147–​49) refers to this as the “total requirement.”

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prevent some other person from suffering two broken fingers, since this other person does not have enough at stake to justify the infringement of your right. But presumably I am morally permitted to perform an act that will break your finger if doing so is necessary to save someone else’s life. In addition to the quantitative requirement, many deontologists would endorse a distributive requirement (or set of distributive requirements), which holds that benefits must be appropriately distributed among the parties who benefit from infringement. Perhaps a benefit to some individual can count toward a right’s threshold only if it surpasses some minimum amount, where this minimum varies depending on the right in question. Or perhaps a right can be overridden only if there is at least one beneficiary who has at stake something equivalent to what the right-​bearer has at stake.10 More generally, plausible versions of the distributive requirement are likely to imply that there is a morally important difference between a case in which one produces a large quantity of good by providing each of many people with tiny benefits (e.g., the prevention of millions of mild headaches) and a case in which one produces an equally large quantity of good by providing each of some smaller number with more substantial benefits (e.g., the prevention of death or severe injury). In addition, some might opt for a distributive requirement according to which it makes a difference who benefits from the infringement of the right-​bearer’s right. Thus, anti-​paternalists might argue that it is impermissible to infringe a right if the right-​bearer is the only beneficiary, even if it would be permissible to infringe the right in order to procure a comparable benefit for some third party. For the sake of brevity, I will refer to the quantitative requirement as the threshold for the relevant right, though we should bear in mind that permissible infringements may also need to meet a distributive requirement. 10.  Brennan distinguishes two different distributive requirements, a “universal constraint” and an “existential constraint.” The universal constraint concerns “the minimum that a person who will benefit from the infringement of another’s right must have at stake” if these benefits are to count toward the threshold (Brennan [1995a: 149]). The existential constraint holds “that there must be at least one person who has an amount at stake, proportional to what the rights bearer has at stake” (Brennan [1995a: 153]). Thomson (1990: 166–​69), in contrast, defends what she calls the “High-​Threshold Thesis.” According to this thesis, a right-​bearer’s right may not be infringed unless there is a single person who would thereby gain a benefit sufficient to meet the threshold all on her own. According to the High-​Threshold Thesis, if an agent may not kill, maim, or blind someone in order to save the life of one other person, then an agent may not kill, maim, or blind someone in order to save the lives of any number of other people. This view seems rather implausible to me, though I will not pursue this point, since the High-​Threshold Thesis is irrelevant to the central argument of this chapter.

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A moderate deontological view is obviously not the only view of moral rights that one might hold. It is thus worth saying something about why I  focus on such views. One reason is that they are fairly popular. Many nonconsequentialists hold that people have claim-​rights that others not harm them or interfere with their bodies or property. But many also hold that these rights have thresholds. Given the popularity of moderate deontological views, it is worth considering their implications for the permissibility of paternalism. Moreover, an account of rights as Hohfeldian claims might initially seem to lend itself well to anti-​paternalism. If pressed to explain why it would be wrong for someone to perform a beneficial medical procedure on me without my consent, some anti-​paternalists might reply that I have a claim-​right against others that they not touch or invade my body. To reiterate a point made already, even if I  am correct that pro-​ paternalism is consistent with an attractive moderate deontological view, it obviously does not follow that pro-​paternalism is consistent with any possible rights-​based view, and that is not what I will attempt to show in this chapter. If, however, pro-​paternalism is consistent with at least one attractive rights-​based view, then it may itself seem more attractive. At the very least, such a conclusion would remove the common suspicion that pro-​paternalism can be supported only by appeal to the sort of consequentialist theory that many critics would reject.

5.2 BRENNAN’S ANALYSIS

We often have some intuitive sense of how much must be at stake for third parties if one is to be justified in infringing a certain right. Thus, as noted earlier, most of us would think it permissible for me to break your finger if doing so is necessary to save another person’s life, but not if doing so is necessary only to prevent another person from suffering two broken fingers. Likewise, most of us would think it permissible for me to gently push you out of my way if doing so is necessary for me to catch up to my lost child, but not if doing so is necessary only to ensure that my child has a better view of a baseball game. Of course, reasonable people may disagree about precisely how much must be at stake in order for one to be justified in infringing a certain right. The question I now want to consider is how these sorts of judgments are affected when the right-​bearer herself stands to gain from the infringement of her right. It will be useful to begin by discussing a proposal advanced by Samantha Brennan, one of the few philosophers to have explicitly considered how

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one’s view about rights thresholds might inform one’s view on paternalism. Brennan claims that when the infringement of some right would benefit the right-​bearer, her right nonetheless “retains the usual strength,” though the benefits to the right-​bearer herself count toward the threshold.11 On this view, if it would be (im)permissible to infringe a certain right in order to procure a certain measure of good that would flow only to those other than the right-​bearer, then it would likewise be (im)permissible to infringe that right in order to procure a comparable measure of good that would flow to the right-​bearer herself (plus any other beneficiaries).12 Let me illustrate. Suppose, for the sake of argument, that it would be impermissible to amputate an innocent person’s arm, against her will, if doing so were necessary to save just one other person’s life, but permissible to amputate an innocent person’s arm if doing so were necessary to save the lives of ten other people. Brennan’s proposal would then imply that it is impermissible to amputate a person’s arm, against her will, if doing so would save only her own life, but permissible to amputate her arm if doing so were necessary to save her life plus the lives of nine others. Although the infringement of the right-​bearer’s right in such cases may benefit her on balance (since it saves her life), Brennan argues that it would nonetheless harm her in some respect, since the loss of an arm surely counts as a harm.13 This is why the threshold for the relevant right is quite high. As the amputation case suggests, Brennan’s view would sometimes oppose intervention that is in the target’s best interest. But it would also sometimes permit intervention on straightforwardly paternalistic grounds. For instance, if it would be permissible to lightly kick an innocent person in the shin in order to save someone else’s life, as surely appears to be the case, then Brennan’s view implies that it would likewise be permissible to lightly kick someone in the shin in order to save her own life, even without her consent.14 Some anti-​paternalists may be unhappy with this result, since it is inconsistent with an absolutist stance against (liberty-​limiting) paternalism. Though Brennan rejects absolutist anti-​paternalism, she also suggests a device by means of which an absolutist view might be defended. A staunch anti-​paternalist might hold that, for the purposes of determining whether a right’s threshold is met, a “discount rate” should be applied to any benefits

11. Brennan (1994: 438). 12.  Brennan (1994:  428–​33) qualifies this view for cases in which the right-​bearer cannot give her consent (for instance, because we are incapable of communicating with her). 13. Brennan (1994: 438). 14. For a similar example, see Brennan (1994: 422).

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received by the right-​bearer.15 The anti-​paternalist could then conclude that, owing to the discount rate, the benefits to the right-​bearer count for less than otherwise comparable benefits to others. If there were a discount rate of, say, 80 percent, then only 20 percent of the benefit received by the right-​bearer/​beneficiary would count toward the threshold of her right; if the discount rate is steep enough, then the benefits to the right-​bearer/​ beneficiary may be sufficient to meet the threshold only under exceptional circumstances. Indeed, absolutist anti-​paternalists might conclude that there is a 100 percent discount rate on benefits to the right-​bearer, so that such benefits do not count toward the threshold at all. As I said, Brennan does not favor a discount rate. Though I will continue to focus on her view, the questions I raise would apply, with perhaps even greater force, to views that would discount the benefits to the right-​bearer. As we have seen, Brennan’s view implies that if it is impermissible to kick a person’s shin (or break a person’s finger, or amputate a person’s leg, etc.) when doing so is the only way to achieve a certain good that would benefit others, then it is likewise impermissible to do these things to a person when doing so is the only way to achieve a comparable good that would benefit only her. The guiding idea here seems to be that if the infringement of a person’s right would have two effects on her, one good and one bad, then the bad effect fixes the right’s threshold, while the good effect counts toward this threshold. This view seems to have unpalatable implications, however. To see why, consider two cases, beginning with the following: Pain 1: You can produce a significant measure of good for Ida in either of two ways: by causing Albert a very mild pain in the right shin or by causing Gloria an excruciating pain in the right shin. Perhaps, for whatever reason, you would have to kick Gloria harder than you would have to kick Albert in order to produce the relevant good for Ida. Neither Albert nor Gloria consents to be kicked, and both are innocent of any threat to Ida. Now presumably most of us, including Brennan, would argue that the right you would infringe if you were to cause severe pain to Gloria is more 15. Brennan (1994: 421). Brennan ends up concluding that there is a “mark-​up rate” to benefits to the right-​bearer (that is, that these benefits count for more than comparable benefits to third parties) when, and only when, we are unable to find out what the right-​bearer wants us to do, as when the right-​bearer is unconscious and incapable of communicating. When we are able to find out what the right-​bearer wants us to do, then there is neither a mark-​up rate nor a discount rate on the benefits to her, according to Brennan.

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stringent than the right you would infringe if you were to cause mild pain to Albert. Since the harm to Gloria would be greater, more needs to be at stake to justify the infringement of her right.16 So far, so good. But now consider a variant on our example: Pain 2:  As before, but the means by which you would cause Gloria pain in her right shin would eliminate a qualitatively identical pain she had been feeling in her left shin. Assume that Gloria’s right shin pain would last no longer than the left shin pain she would otherwise have continued to experience. (In other words, by kicking Gloria, you would in effect merely “relocate” her pain.) Assume, moreover, that Gloria has no compelling reason to prefer left shin pain to right shin pain.17 In this case, your act of kicking Gloria would have two effects on her, one good (the complete relief of pain in her left leg) and one bad (the new pain in her right leg). Because Brennan’s view implies that a right’s threshold is sensitive to the respect in which infringement would harm the right-​bearer, it would seem to imply that even in Pain 2, the threshold for Gloria’s right is higher than the threshold for Albert’s right. If this is so, the infringement of Gloria’s right would seem to be more difficult to justify than the infringement of Albert’s right.18 In short, there would appear to be circumstances in which it is permissible to infringe Albert’s right given what is at stake for Ida but impermissible to infringe Gloria’s right even if doing so would procure the same good for Ida. But this conclusion seems implausible.19 16. See Brennan (1995b). 17. It might be asked why Gloria would not consent to your causing her the right shin pain, given that such behavior will not harm her on balance. As anti-​paternalists should surely concede, however, people might refuse their consent to forms of treatment that cause them no (net) harm. Gloria might, for instance, simply be ornery, or she may dislike or distrust you, and so forth. 18.  To be sure, one might point out that the benefits to Gloria count toward the threshold along with the benefits to Ida. Even so, it will probably be more difficult to justify the infringement of Gloria’s right, on Brennan’s view. For purposes of illustration, suppose that it is permissible to harm someone in a certain respect only if doing so is necessary to produce a measure of good whose absolute value is five times greater than the absolute value of the harm. Even if we count the relief of Gloria’s left shin pain toward the threshold, it would still be permissible to infringe her right only if doing so would produce for others a measure of good whose absolute value is four times greater than the absolute value of the excruciating right shin pain. By contrast, the threshold would be met in Albert’s case so long as infringing his right would produce for others a measure of good whose absolute value is five times greater than the absolute value of the mild right shin pain. 19. It seems to violate what Thomson calls “The Comparison Principle: Suppose X1 has a claim against Y1 that Y1 do alpha, and X2 has a claim against Y2 that Y2 do beta.

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Although the respect in which infringement would harm Gloria (namely, by causing her excruciating pain in the right shin) is more significant than the respect in which infringement would harm Albert (namely, by causing him very mild shin pain), it makes a crucial difference that infringement would harm Gloria less on balance. This is why it seems easier to justify the infringement of Gloria’s right. But the view we are considering cannot easily explain this judgment, since it holds that when the infringement of someone’s right would harm her in some respect and benefit her in some other respect, it is only the harm, and not the benefit, that goes into fixing the threshold. I have just argued that Brennan’s view is likely to yield counterintuitive implications. It may also confront a further problem: it may fit poorly with one of the philosophical motivations that leads people to deontological views in the first place. According to one common line of argument, the best explanation for why we have moral rights appeals to the idea that we are, in some important sense, separate from each other. Thus, Rawls famously observes that one natural way of arriving at utilitarianism “is to adopt for society as a whole the principle of rational choice for one man,” and he concludes that “[u]‌tilitarianism does not take seriously the distinction between persons.”20 Similar arguments have been offered by others.21 Of course, there are questions about precisely how this “separateness of persons” argument should be interpreted.22 The root idea, however, appears to be that sacrificing one person’s interests for some greater overall social good is importantly different from sacrificing one person’s present interests for the sake of that very same person’s future interests. In the former case, there is no “mass person” who benefits from the agent’s act.23 In the latter case, however, things are quite different, for the relevant benefits and burdens are experienced by one and the same individual. If true, the observation that moral rights “reflect the fact of our separate existence” would seem to suggest that, if anything, it is easier to justify infringing a person’s right in order to bring her a certain benefit than it is to justify infringing a person’s right in order to bring someone else a

Then X1’s claim against Y1 is more stringent than X2’s claim against Y2 if and only if Y1 makes things worse for X1 if Y1 fails to do alpha than Y2 makes things for X2 if Y2 fails to do beta” (1990: 154). 20. Rawls (1971: 26–​27). 21.  For a sampling, see Nagel (1970:  134), Nozick (1974:  33), and Thomson (1990: 218–​20). 22. For critical discussion, see Norcross (2009). 23. Nagel (1970: 134).

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comparable benefit.24 After all, when we focus only on the benefits to the right-​bearer herself, there simply are no concerns about the separateness of persons or the aggregation of benefits across distinct people. Those sympathetic to common claims about the separateness of persons may thus have little reason to accept Brennan’s view that a right retains its “usual strength” when its infringement would benefit the right-​bearer on balance. This point seems to loom even larger for those who would endorse a discount rate on benefits to the right-​bearer. If we reject consequentialist views on the grounds that they fail to reflect our separate existence, it is far from clear why we would go on to conclude that the benefits to the right-​ bearer count for less than the benefits to third parties for the purposes of determining whether a right’s threshold has been met. I do not want to argue that the separateness of persons idea represents the only way in which one might defend a rights-​based moral theory. Some deontologists may be motivated by considerations that have little to do with the separateness of persons. Nonetheless, concerns about the separateness of persons represent at least one prominent strand of argument in favor of moral rights. And if the separateness of persons idea plays any significant role in arguments against consequentialism and in favor of deontology, then we may have good reason to think that a right’s threshold is sensitive to the net effect of infringement on the right-​bearer. I turn now to consider a view of this sort.

5.3 THE NET INTERESTS PRINCIPLE AND THE ZERO THRESHOLD PROPOSAL

Let us say that a right’s infringement imposes a net burden on the right-​ bearer if it is contrary to the right-​bearer’s interests on balance—​that is, if it frustrates or impedes some of her interests without protecting or advancing more important interests. And let us say that a right’s infringement provides the right-​bearer with a net benefit if it is in her best interest—​that is, if it protects or advances some of her interests without frustrating or impeding other, weightier interests. (Anti-​ paternalists would presumably be eager to concede that some acts can infringe a person’s rights even though they benefit her on balance.) We can presumably make judgments not only about whether some rights-​infringing act would impose a net burden on a person but also about the magnitude of the

24. The quoted passage is from Nozick (1974: 33).

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relevant burden. Assuming that rights have thresholds, it seems plausible to suppose that a right’s threshold is sensitive in some way to the magnitude of the net burden (or benefit) that infringement would impose on the right-​bearer. Thus, at least in ordinary circumstances, the threshold for a rights-​infringing killing would be higher than the threshold for a rights-​ infringing leg-​breaking, which in turn would be higher than the threshold for a rights-​infringing toe-​stubbing. Such judgments are accommodated by the following principle: The Net Interests Principle: The lower the net burden that a right’s infringement would impose on the right-​bearer, the lower the right’s threshold. The net interests principle enables us to avoid the counterintuitive implications of Brennan’s view in cases such as Pain 2: because (ex hypothesi) the net burden to Gloria would be less than the net burden to Albert, it would appear to be easier to justify infringing Gloria’s right than it would be to justify infringing Albert’s right. One might resist the net interests principle by arguing that a right’s threshold can depend not only on the net effect that infringement would have on the right-​bearer’s interests but also on the nature of the infringement. It might be claimed, for instance, that, all else equal, incursions on one’s body are more difficult to justify than incursions on one’s property.25 To avoid this complication, I shall continue to focus mainly on rights regarding one’s own body—​for instance, claims against others that they not touch one’s body, or damage one’s body, and so forth. I  will thus understand the net interests principle as holding that, so long as we focus on rights of this general sort, the threshold decreases as the net adverse effect on the right-​bearer decreases. The net interests principle appears generally plausible. Indeed, it seems to be endorsed by Thomson, who defends the following view: “If X has a claim against Y that Y do alpha, then the worse Y makes things for X if Y fails to do alpha, the more stringent X’s claim against Y that Y do alpha.”26 Of course, the net interests principle does not provide anything like a

25. This possibility is suggested, but not endorsed, by Kagan (1998: 82). 26.  Thomson (1990:  154) calls this the “Aggravation Principle.” It is notable that this principle does not include an “all else equal” clause and thus seems to imply that decreased harm always results in decreased stringency. For further relevant discussion, see Kagan (1998: 82–​83). Brennan (1995b) endorses a somewhat similar view, which she calls the “harm view.” As we have seen, however, Brennan seems to deny that a right’s threshold is determined by the net effect of infringement on the right-​bearer’s interests.

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mathematical formula that tells us precisely how a right’s threshold is determined. While there may be little reason to demand or even hope for great precision about such matters, it is worth considering a general view about the way in which a right’s threshold is related to the effects of infringement on the right-​bearer’s interests. Suppose that we can at least roughly quantify the magnitude of the net burden that infringement would impose on the right-​bearer.27 To arrive at a right’s threshold, we might simply multiply the magnitude of this net burden by some constant. On such a “multiplier view,” we might conclude, for instance, that it is permissible to kill one person only in order to produce a magnitude of good equivalent to the saving of twenty (or 50, or 100, etc.) others, and permissible to maim one person only in order to produce a magnitude of good equivalent to the prevention of twenty (or 50, or 100, etc.) comparably harmful maimings, and permissible to kick one person in the shin only in order to produce a magnitude of good equivalent to the prevention of twenty (or 50, or 100, etc.) comparable harms. (In order for the infringement to be permissible, a distributive constraint may also need to be satisfied.28) Once again, it must be conceded that moderate deontologists have not had much to say about precisely how a right’s threshold is determined.29 In the absence of such precision, the multiplier proposal at least seems promising. Partly this is because it is quite simple and easily accommodates the intuitions that underlie the net interests principle. From a moderate 27.  One might deny that we can even roughly quantify the magnitude of the net burden that infringement would impose on the right-​bearer. Such a response may be unattractive to the moderate deontologist, however; Thomson, for instance, seems to hold that a right’s threshold is in some way a function of the magnitude of the net burden that infringement would impose on the right-​bearer. Of course, we may be unable to precisely quantify benefits and burdens, but such precision is probably unnecessary for present purposes. 28. The distributive constraint might turn out to be very important, and might even explain the “absolutist” conviction some people have that certain rights cannot be permissibly infringed. This would be the case if we accept a distributive constraint such as Thomson’s “High-​Threshold Thesis” (1990: 166–​69). The important point for present purposes is simply that we should distinguish the net interests principle, which tells us something about the total magnitude of good that must be at stake in order for it to be permissible to infringe a right, from a distributive constraint, which purports to tell us how the relevant magnitude of good must be distributed. 29. Rice notes that “one of the most understudied theoretical issues in human rights discourse concerns how we ought to handle cases where rights conflict,” including cases in which a right is overridden by “moral considerations like social goods, utility, or personal preferences” (2004: 203). Kagan suggests the “multiplier” view described earlier but notes that “[i]‌t is far from obvious what a plausible ‘threshold function’ would look like; and it must be admitted, I think, that moderate deontologists have done little toward filling in the details” (1998: 82).

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deontological perspective, it would appear that certain rights, such as those that would prohibit others from killing us, are far more stringent than other rights, such as those that would prohibit others from spraining our ankles. We might accommodate this point by noting that when the infringement of a right-​bearer’s right would be especially harmful on balance, the multiplier will be applied to a relatively high level of harm. Moreover, if we claim, say, that one’s right that another person not sprain one’s ankle is overridden when infringing this right would secure an appropriately distributed measure of good equivalent to the prevention of at least fifty sprained ankles, then we may be under at least some pressure to hold, more generally, that a right is overridden when its infringement would secure an appropriately distributed measure of good fifty times greater than the net burden that would be imposed on the right-​bearer. To be sure, I do not see any compelling deductive argument in favor of the multiplier view. Still, the multiplier view seems to be a plausible contender. And it should be recalled that my aim is only to show that pro-​paternalism is compatible with a generally plausible and attractive view about rights. Consider now what the multiplier view would imply about cases in which the infringement of the right-​bearer’s right would provide her with a net benefit. There are at least two different ways of interpreting such cases. First, since infringement does not burden the right-​bearer on balance, we might say that it imposes on her a net burden of zero. Applying any multiplier to a net burden of zero will yield a threshold of zero. What would this mean? If a right’s threshold is zero, then presumably the right is overridden if its infringement would be any better for those for whom infringing the right would be good than not infringing it would be for those for whom not infringing it would be good. More briefly, if a right’s threshold is zero, then the threshold is met so long as intervention produces a net benefit, taking into account its consequences for all affected parties.30 On an alternative view, we might think of a net benefit as equivalent to a negative net burden. Applying the multiplier to a (negative) net burden would yield a negative threshold. The idea that rights sometimes have negative thresholds may seem odd. A  negative threshold could presumably be met even if less total good could be secured by infringing the right than could be secured by not infringing it (taking into account the effects on both the right-​bearer and other affected parties). Plausibly, however, a right can be overridden only if infringement would produce more net good than any non-​rights-​infringing alternative. If so, then perhaps those

30. Kagan (1989: 190–​91).

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sympathetic to the multiplier proposal should simply conclude that rights thresholds “bottom out” at zero, so that there is a zero threshold when infringement would not impose a net burden on the right-​bearer. At any rate, I now want to suppose that there is a zero threshold, rather than a negative threshold, when the right-​bearer would receive a net benefit from the infringement of her right. Call this the zero threshold proposal. The zero threshold proposal is friendly to pro-​paternalism. As we have seen, a zero threshold would be met so long as a greater measure of net good could be secured by infringing a right than by not infringing it. If paternalistic intervention is, on balance, for the target’s own good, then this threshold will be met (unless the intervention imposes sufficiently severe costs on third parties).31 To be sure, as I noted earlier, many moderate deontologists believe that a rights infringement is not necessarily rendered permissible by the mere fact that it would produce a sufficient magnitude of good. Many also endorse what I called a distributive requirement on permissible rights infringement. Yet familiar distributive concerns—​for instance, about imposing severe harm on a small number in order to obtain comparatively trivial benefits for each of a very large number—​do not seem to arise when the right-​bearer herself will benefit from the infringement of her rights. Moreover, I argued in the previous section that it would be odd to endorse a distributive constraint according to which the benefits to the right-​bearer count for less than comparable benefits to third parties, much less a constraint according to which the benefits to the right-​bearer do not count at all.32 Indeed, the zero threshold proposal seems to cohere with the thought that moral rights are ultimately justified by considerations having to do with the separateness of persons. Concerns about the separateness of

31. One might ask whether there is really any difference between claiming that an intervention permissibly infringes a right with a zero threshold and claiming that an intervention does not infringe rights at all. Would it be better to say that the target’s rights simply do not come into play when intervention would serve her best interest? It is worth making two points in reply. First, there does seem to be a difference between claiming that an act permissibly infringes a right and claiming that the act infringes no rights. In particular, if the act infringes a right, then there is something at least pro tanto wrong or objectionable about it, even if it is permissible all things considered. This may explain why intervention should be undertaken only as a last resort, or why it is morally less than ideal (even if ultimately permissible). Second, the argument I have offered may make it much more plausible to think that paternalistic intervention does not infringe rights at all. Those who tend to think that the argument supports this conclusion can simply make the corresponding adjustments in the discussion to follow. I am indebted to Daniel Groll for helpful feedback on these points. 32.  As Brennan (1994:  427–​28) notes, it might be argued that the benefits to the right-​bearer do not count because these benefits can be “waived.” I critically examined this proposal in section 4.2.

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persons seem otiose when the infringement of a person’s right would benefit her on balance. If the separateness of persons idea is the only consideration that leads us to a deontological view, then it may be reasonable to conclude that rights offer little protection when their infringement would be in the right-​bearer’s best interest. It is worth briefly pausing to take stock. I  have argued that the net interests principle should seem at least plausible to moderate deontologists. One simple way—​though not the only way—​of accommodating the net interests principle would be to opt for a view according to which a right’s threshold is directly proportional to the magnitude of the net burden that its infringement would impose on the right-​bearer. A plausible version of this proposal, in turn, would seem to imply that the threshold bottoms out at zero when infringement would not impose any net burden on the right-​ bearer. Of course, there may be alternatives to the multiplier view that likewise yield such a zero threshold.33 The important point for our purposes is simply that pro-​paternalism is fully consistent with, and even supported by, a set of apparently plausible moderate deontological claims.34

33. For instance, the argument I have offered may still gain traction if one rejects the multiplier proposal by arguing that it is more than proportionally difficult to justify more burdensome rights infringements (and more than proportionally easy to justify less burdensome infringements). 34. Perhaps surprisingly, Thomson appears to reach something resembling the zero threshold proposal. She asks us to imagine that a tree has fallen on David, who is now unconscious and pinned to the ground. A doctor arrives on the scene and determines that the only way to save David is to amputate his leg. Thomson concludes that the doctor may proceed with the amputation, even without David’s actual consent, unless (for instance) David has deeply held religious beliefs that would oppose treatment. As Thomson observes, it might seem natural to appeal here to hypothetical consent. Yet Thomson (1990:  188) eschews this sort of reasoning and argues that what matters are the reasons in virtue of which David would (or would not) consent. On her view, the reason it is permissible for the doctor to save David’s life (if this is permissible) is that David’s right has negative stringency. If a right has negative stringency, then it may be permissibly infringed even if doing so does not produce any good other than that secured for the right-​bearer himself. Thomson suggests that if David’s right is of negative stringency, this is because “it is on balance good for David” that his leg be amputated (1990: 198). She goes on to argue that if David is a Christian Scientist who opposes medical treatment, amputation would likely be wrong because it would be on balance bad for David (Thomson [1990: 190–​91]). At least on the face of it, if the appeal to negative stringency implies that it is permissible to perform the amputation on an unconscious David so long as he benefits on balance, the appeal to negative stringency would also seem to imply that it is permissible to perform the amputation on a conscious and nonconsenting David so long as he benefits on balance. Thomson’s way of dealing with the David case has been subjected to critical scrutiny by others, some of whom object that her argument provides her with little basis on which to oppose paternalism (see Brennan [1994: 435–​39] and Mack [1993: 789], though for a competing view see Rice [2004: 212–​13]). Yet moderate deontologists may be under at least some

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But is the zero threshold proposal really plausible? Before we turn to consider some alternatives to this proposal, it is worth considering a possible objection to it. A critic might suspect that the zero threshold proposal has counterintuitive implications even about cases that do not seem to involve paternalism. To illustrate, consider the following example. Suppose that while I am at work, you take my car out for a joyride, without my permission. You are absolutely certain that I will not need my car during the time you are using it. Further, you are extremely careful not to damage my car, you are certain that you will not be involved in an accident, you clean the car and refill the gas tank upon your return, and so forth.35 In short, you take care to ensure that your use of my car will not adversely affect my interests in any way. Nonetheless, it may seem that you wrongly violate my rights by taking the car. The zero threshold proposal, it might be thought, cannot accommodate this result. Whether it does, however, depends both on the details of the case and on which account of interests we ought to accept. Notice first that even if the threshold for my right is zero, it would be wrong for you to infringe that right unless doing so is necessary to procure some measure of (net) good; a right with a zero threshold still offers at least some protection. Moreover, it is somewhat fanciful to imagine a case in which you can be absolutely certain that you will not damage my car, that I will not need my car, and so forth. Even if this point is waived, however, your use of my car might still frustrate my interests. Suppose, for instance, that we ought to accept a desire-​based theory of well-​being. On such a view, if I have a desire that you not use my car, then you presumably would harm me by using it.36 And if you harm me, on balance, by using my car, then the threshold for my right is greater than zero. Additionally, as I noted in ­chapter 1, it may be that people have some objective interests, in the sense that they have objective reason to want certain things for themselves. It might be argued on this basis that I have an interest in directing or controlling the use of my material resources, and that such an interest would be impeded to at least pressure to accept Thomson’s analysis if they also accept the claim that hypothetical consent “isn’t worth the paper it’s not written on” (Nozick [1974: 287]). 35.  This example is offered by Brennan (2009:  39; 1995b:  388–​ 89). Ripstein (2006:  218) considers a somewhat similar example, in which someone breaks into your house while you are away from home, spreads a clean hypoallergenic blanket on your bed, takes a nap, and leaves before you return, careful not to damage or alter your house in any way. I suspect that the response I offer would apply to both cases. However, Ripstein, unlike Brennan, uses his example to argue against a Millian harm principle. I am not convinced by this argument, largely for reasons discussed by Bird (2007) and Scoccia (2013b: 517–​19). 36. Scoccia (2013b: 518).

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some extent if you were to use my car without my consent. I am not sure whether this is true. Nonetheless, if we have some interests of this sort, then they may enter into a determination of whether your act of taking my car imposes a net burden on me.37 The points just made—​that your act of taking my car might either frustrate my desires or thwart my other interests—​can be combined. On the one hand, suppose that I have some interest that would be frustrated by your taking my car, either because I  desire that you not take it (as on a desire-​based theory of well-​being) or because I  have some objective interest in (say) directing the use of my material resources. (Assume, moreover, that I have no comparably important interest that would be advanced by your taking my car.) In this case, there would be no reason to conclude that the threshold for my right is zero, and the original objection misses its target. On the other hand, suppose that I have absolutely no interest that would be frustrated by your taking my car, perhaps because I have no desire that you not take it and because I do not have any more objective interest that would be frustrated or thwarted by your taking it. If this is true, then it does not seem implausible to suppose that my right really does have a zero threshold. Thus, while there may be a question about what we ought to say about the imagined case, it does not seem to me to pose a decisive objection to the view that a right has a zero threshold when its infringement would not, on balance, set back the right-​bearer’s interests. In order to challenge the pro-​paternalist position from within the confines of a moderate deontological theory, one must do more than argue that we have some rights over our bodies and property. One also needs to argue that such rights have nonzero (positive) thresholds even when their infringement would provide the right-​bearer with a net benefit. In the following two sections, I consider two attempts to secure this conclusion.

37.  To be clear, if people have objective interests of the sort just described, then it may be difficult even to roughly quantify the net burden (or benefit) that an act would impose on a person. At the very least, determining the magnitude of a burden would involve more than, for instance, assessing the intensity of the person’s desires or pleasures. This is a complication that any moderate deontological view, combined with an objective account of interests, would likely have to face. Any moderate deontological view, after all, is likely to hold that a right’s threshold depends in some way on the magnitude of the net burden that infringement would impose on the right-​bearer. Given my aims in this chapter, I am simply assuming that some moderate deontological view is nonetheless defensible.

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A first alternative to the zero threshold proposal is consistent with the guiding idea behind the net interests principle. The net interests principle, recall, holds that a right’s threshold decreases as the net burden that infringement would impose on the right-​bearer decreases. A  critic might argue that even if this is generally true, rights thresholds may bottom out at some nonzero (positive) level. Perhaps there is a “floor” below which rights thresholds cannot drop, so that the threshold is positive even when infringement would not impose any net burden on the right-​bearer. For the sake of simplicity, call this the positive threshold view. If a right has a positive threshold, then it will not be permissible to infringe the right unless the consequences of infringement are sufficiently much better than the consequences of noninfringement, where the criterion of sufficiency requires more than that the infringement produce a greater measure of net good than the alternative. Of course, virtually all deontologists would hold that there is a positive (and perhaps relatively high) threshold when infringement would, on balance, seriously harm the right-​bearer. The question we are considering now is whether there is likewise a positive threshold when infringement would not impose any net burden on the right-​bearer. My aim here is not to offer a definitive argument in favor of the zero threshold proposal over the positive threshold proposal; as I have already indicated, I  am not sure that definitive arguments are to be had in this context. Nonetheless, given that the positive threshold proposal may seem attractive largely because it seems less friendly to paternalism, it is worth considering its implications in more detail. The implications of the positive threshold proposal will depend on whether rights thresholds bottom out at a relatively high level or at a relatively low (but still positive) level. On the one hand, if rights thresholds bottom out at a relatively high level, then a beneficial infringement may be justified only if it does a great deal more good, on balance, than noninfringement. On the other hand, if rights thresholds bottom out at a relatively low level, then a beneficial infringement may be justified if it brings about a relatively modest magnitude of net good. It seems to me that this second possibility is far more plausible, as is apparent even in cases that do not seem to involve paternalism. Suppose, as many moderate deontologists would, that I  have a right against you that you not touch me, and that you would infringe this right by gently pushing me. On the assumption that your gently pushing me would cause me the slightest momentary discomfort (and would have no other significant effects

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on me), we can ask how much must be at stake in order for this right to be overridden. And the answer, it would appear, is “not all that much.” Imagine, for example, that you see a child who is about to sustain a relatively modest injury (say, a severely sprained ankle) and that you can prevent this injury only by gently brushing past me in a way that would cause me only the slightest irritation. In this case, it seems to me that you may proceed on the basis of what is at stake for the child, even though what is at stake is not all that great. Of course, there may be disagreement about exactly how much needs to be at stake in order to justify your brushing past me. The general suggestion is just that relatively little needs to be at stake to justify infringement in this sort of case. It would thus appear that if rights thresholds bottom out at some nonzero level, this level is at least relatively low. Moderate deontologists may have a further reason to accept this conclusion. Virtually all acts pose a very slight risk of serious harm to others. Even if I drive conscientiously, for instance, I may lose control of my car and hit an innocent pedestrian. One way to deal with this fact—​though perhaps not the only way—​is to argue that a right’s threshold is a function of expected harm to the right-​bearer. If this is right, then the threshold for imposing a tiny risk of serious harm (e.g., by carefully driving a car) would be at least roughly equivalent to the threshold for imposing a very great risk of a sufficiently tiny harm. Most deontologists would presumably say that the threshold in such cases is very low; otherwise, they may have to condemn a great deal of commonplace, and intuitively permissible, behav­ ior. Although it is worth taking note of this line of argument, I do not want to insist that a right’s threshold must be a function of expected harm in the way just described.38 Nonetheless, if one claims that it is permissible to impose sufficiently tiny risks of serious harm on people in order to procure relatively modest (expected) benefits, one may be under considerable pressure to claim that it is likewise permissible to impose great risks of sufficiently tiny harm on people in order to obtain relatively modest benefits. Regardless of how this issue is sorted out, there seems to be good reason to think that if there is some minimum level below which rights thresholds cannot drop, this level, even if not zero, is relatively low. The claim that there is a low (but positive) threshold when infringement would be in the right-​bearer’s best interest may not be all that comforting to anti-​ paternalists, however, for at least two reasons.

38. For relevant discussion, see Kagan (1989: 91–​92n7).

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First, and most obviously, such a view would provide little reason to oppose intervention that brings a fairly significant net benefit to the target. If a right has a relatively low threshold, then it is likely to be overridden if the consequences of infringing it are, on balance, significantly better than the consequences of not infringing it. Setting aside any effects on third parties, then, a right with a low threshold would likely be overridden when infringement would provide the right-​bearer with a significant net benefit, though perhaps not when infringement would provide the right-​bearer with only a fairly trivial net benefit. This conclusion does not fit well with common anti-​paternalist judgments, however. On the one hand, some of the cases in which anti-​paternalists have most vigorously condemned intervention involve very great benefits. As we have seen, for example, most anti-​paternalists argue that it can be impermissible to impose life-​saving medical treatment on a person, even when doing so would significantly benefit her. On the other hand, some of the cases in which moderate anti-​ paternalists are most likely to support intervention seem to involve relatively modest benefits. Imagine, for example, that there is a relatively small but non-​negligible risk that a surgery patient will roll off a gurney and sustain a moderate leg injury unless she is belted in. Suppose that the patient, who prizes her independence, explicitly directs hospital staff not to belt her in. I suspect that many people who are generally opposed to paternalism would claim that it is not seriously wrong, and may even be permissible, for hospital staff to secure a safety belt as the unconscious patient is wheeled into the operating room, even if doing so requires that they make contact with the patient’s body. Yet since the net benefits of such intervention for the patient are not all that great in this case, these benefits may be insufficient to meet a relatively low threshold. This takes us to a second point: in many cases, a low threshold might be met even if intervention provides only relatively minor net benefits to the target. This is because such intervention might also provide relatively minor benefits to third parties and, taken together, these benefits might be sufficient to meet the low threshold. To appreciate this point, consider a familiar concern about the distinction between “self-​regarding” and “other-​regarding” behavior. It is sometimes objected that virtually all imprudent or self-​harmful conduct affects others for the worse. For instance, if I cause myself to become ill, my behavior is likely to have some effect on my family and friends. If nothing else, it may cause them grief and anxiety.39 Moreover, my self-​harmful behavior may affect my employer, or 39.  Perhaps it will be thought that certain types of third-​party benefits—​such as the prevention of grief and anxiety—​cannot count toward a right’s threshold. I  see

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co-​workers, or others who rely on me. Depending on the circumstances, my imprudent behavior may adversely affect others in additional ways. This is not to say that such behavior wrongs others or violates their rights, nor is it to say that there is no real distinction between self-​regarding and other-​regarding behavior.40 Instead, the important point is simply that imprudent choices often adversely affect third parties, even if they do so only in relatively minor or trivial ways. And if a person’s imprudent choice adversely affects third parties to at least some extent, then intervention in such a choice (assuming that it is in the person’s own best interest) may also be likely to provide third parties with a net benefit. Even if these third-​party benefits are relatively trivial, they might be combined with the benefit to the target to satisfy a low threshold and provide a “mixed” paternalistic/​nonpaternalistic rationale for intervention. Indeed, if the threshold is low enough, then relatively minor third-​party benefits might be sufficient to meet the threshold all on their own.41 This raises the possibility that the threshold may be met even if the benefits to the target are not counted toward the threshold—​a possibility that may be quite likely if intervention that serves the target’s best interest typically also provides some net benefit to third parties. Of course, third-​party benefits, considered on their own, could not provide the basis for a paternalistic argument in favor of intervention. But this point need not concern us here. For I am now considering how the implications of the positive threshold proposal compare with the implications of the zero threshold proposal, and in particular whether the former is likely to appeal to anti-​paternalists. The upshot of the preceding discussion is that if the threshold bottoms out at a relatively low (nonzero) level, the positive threshold proposal may provide little basis for opposing intervention that provides the target with any significant net benefit. As I  have suggested, however, the positive no reason to think this, however, at least about the benefits just cited. Suppose, for instance, that Anna has blamelessly acquired the mistaken belief that her spouse has died. Having just met Anna’s spouse, you can inform her that her spouse is alive and well, thereby sparing her several hours of intense grief and anxiety. Unfortunately, you are able to reach her in time to provide this information only by very lightly jostling a nearby pedestrian. Moderate deontologists such as Thomson would hold that lightly jostling a person, without his consent, infringes his rights. But it seems to me that you are permitted to do so in this case, in order to prevent Anna’s grief. 40. There may well be at least a “rough and serviceable distinction” of this sort, as Feinberg suggests (1986: 56). 41.  As we have seen, some moderate deontologists would accept a distributive requirement according to which minor benefits cannot be aggregated to justify the imposition of a serious harm. But there does not seem to be anything morally amiss about claiming that relatively minor benefits to third parties can count toward a low threshold.

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threshold proposal may seem to have an advantage over the zero threshold proposal mainly because it seems to accommodate anti-​ paternalist intuitions. If the positive threshold proposal, suitably developed, also seems to be at odds with common anti-​paternalist judgments, then this advantage may be largely illusory. Moderate deontologists might then have reason to suspect that it is the anti-​paternalist judgments, rather than the zero threshold proposal, that should be discarded.

5.5 AUTONOMY

The discussion of the preceding section suggests that moderate deontologists who wish to stake out a robust anti-​paternalist position should prefer a view on which a right can have a relatively high threshold, even when its infringement would provide the right-​bearer with a net benefit. But how might such a view be defended? As I argued earlier, it would probably be implausible for a moderate deontologist to argue that rights thresholds bottom out at a relatively high level, so that it is always difficult to justify rights infringements that impose only the most trivial of net burdens on the right-​bearer. An alternative possibility would be to argue that rights thresholds are sensitive to considerations other than (or in addition to) the effects of infringement on the right-​bearer’s interests. In particular, given how frequently autonomy is invoked in opposition to paternalism, it might be tempting to argue that a right’s threshold is sensitive in some way to autonomy.42 This suggestion should be interpreted with some care, however. For one thing, the suggestion that rights thresholds are sensitive to autonomy will not get us very far if we hold a view according to which autonomy just is a certain package of rights. For another, depending on how it is interpreted, the suggestion may not be at odds with the net interests principle or the zero threshold proposal. If autonomy is regarded as something that is good for a person, or that a person has some reason to want for herself, then pro-​paternalist defenders of the net interests principle can argue that interests in autonomy, like the right-​bearer’s other interests, go into determining a right’s threshold. A  threshold that is sensitive to the right-​bearer’s interests would then be sensitive to autonomy. Even if we interpret autonomy so that it is not (merely) one among other things in which a person has an interest, there are still several

42. Brennan (2009: 39–​40).

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different ways of spelling out the idea that a right’s threshold is sensitive in some way to autonomy-​based considerations. For instance, we might hold that autonomy is frustrated or compromised to the same degree by all rights infringements, or we might hold that autonomy is frustrated or compromised to different degrees by different rights infringements. The first of these views does not seem especially promising.43 Even if all rights-​infringing acts do offend against autonomy in some way, it seems difficult to believe that they offend against autonomy equally, or to the same degree. Moreover, the view that autonomy is equally affected by all rights infringements may not take us much past the view considered in the previous section. For as we saw earlier, when we focus on some rights infringements—​including, say, the infringement involved in one’s gently shoving another person—​the threshold appears to be fairly low. If every rights infringement has the same effect on autonomy, then, we would be led to the conclusion that the appeal to autonomy, all on its own, can support only a relatively low threshold. Suppose, then, that autonomy-​based considerations oppose different rights infringements to different degrees. The obvious question to ask now is what determines the extent to which any particular rights infringement offends against autonomy. What separates those cases in which the significance of autonomy supports a relatively high threshold from those cases in which it supports only a relatively low threshold? We can distinguish between two broad ways of addressing this question. The first can be roughly characterized as objective. It holds that the extent to which autonomy-​ based considerations speak against rights-​infringing intervention depends on the objective importance of the liberty that would be curtailed. To say that a liberty is objectively important in the relevant sense is to say that its importance is not determined by the target’s own desires or attitudes. A  second, more subjective proposal holds that whether autonomy-​based considerations support a relatively high threshold depends on the target’s desires or attitudes. Consider each view in turn. The more objective view confronts a number of problems. First, because it presupposes that certain forms of liberty or autonomy can be objectively more important than others, it might be unappealing to anti-​paternalists who are attracted to the thought that we should eschew contentious

43. Brennan (2009: 39) suggests, but does not endorse, this view. In particular, she seems to suggest that a threshold might take the form of a function such as T = m(h) + a, where T is the threshold, m is a constant “multiplier,” h is the harm the infringement would cause the right-​bearer, and a is a constant that reflects the significance of autonomy.

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judgments about values and value tradeoffs. Indeed, some might hold that it is paternalistic to claim that certain forms of liberty or autonomy are objectively more (or less) important than the target believes them to be. Moreover, and more critically, in order to argue that certain forms of autonomy are objectively more important than others, one would likely end up either (a) arguing that people have stronger interests in possessing the relevant forms of autonomy, in which case the autonomy-​based proposal would not oppose the net interests principle after all, or (b) appealing to various considerations critically examined in previous chapters (for instance, considerations having to do with the claim that certain forms of autonomy have expressive significance, or are more important to one’s status as free and equal). Let us turn, then, to the more subjective view. According to this view, a right’s threshold is sensitive to autonomy in the sense that it is sensitive to the target’s own desires or attitudes. There are a couple different ways of fleshing out this idea. It might be that a right’s threshold is at least partly determined by the right-​bearer’s own judgment about the extent to which infringement would harm her or set back her interests. According to this view, a right’s threshold may be quite high because the right-​bearer (while fully informed of relevant empirical facts) believes that infringement would, on balance, significantly harm her or impede the realization of her interests, regardless of whether her assessment of her own interests is accurate.44 An alternative proposal maintains that a right’s threshold is sensitive to the strength of the right-​bearer’s desire that her right not be infringed or to the importance the right-​bearer attributes to the noninfringement of her right. Perhaps it is true that “the more important to the agent the desire that an autonomy-​restricting interference frustrates, the greater the loss of autonomy.”45 According to this sort of view, the threshold may be quite high if the right-​bearer strongly resents others’ interference, even if the infringement would bring her a net benefit (and even if she concedes that the infringement would bring her a net benefit). These subjective versions of the proposal that rights thresholds are sensitive to autonomy fall prey to a familiar problem: they seem to imply that there can be cases in which one right has a lower threshold than another, similar right, even though the infringement of the former right would, on

44. Consider the somewhat similar view that compensation must make a victim as well off, by her own lights, as she otherwise would have been. For relevant discussion, see Sobel (2012: 42), who seems to think that this view of compensation should be accepted by libertarians. 45. Arneson (1980: 475).

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balance, frustrate more important interests. To appreciate this point, consider the following example: Sprained Ankle or Broken Leg:  You are able to procure a suitably great measure of good for some third party only through either of two means, one of which requires you to sprain Britta’s ankle and one of which requires you to break Karl’s leg. Assume that, on balance, a broken leg would frustrate Karl’s interests more than a sprained ankle would frustrate Britta’s interests. But suppose that Britta is more strongly opposed to others’ infringing her right than Karl is to others’ infringing his right, perhaps because Britta has the unreasonable (but informed) belief that a sprained ankle would make her very much worse off.46 The subjective autonomy-​based proposals just described seem to imply, counterintuitively, that there are circumstances in which it would be permissible to break Karl’s leg but not to sprain Britta’s ankle. If a right’s threshold is sensitive to the right-​bearer’s (possibly unreasonable) beliefs about the effects of infringement on her interests, or to the strength of the right-​bearer’s desire that her right not be infringed, then Britta’s right may be more stringent than Karl’s. This conclusion seems difficult to accept. The appeal to autonomy initially suggested itself because autonomy is commonly regarded as the core value that speaks against paternalism. However, in assessing this proposal—​or indeed, any proposal regarding rights thresholds—​we should also consider its implications about cases in which infringing one person’s right would benefit others.47 And as our 46.  Of course, we can imagine cases in which a sprained ankle would frustrate someone’s interests more than a broken leg would frustrate the interests of someone else: suppose that Britta is a professional athlete, while Karl is a professional philosopher. I will assume that nothing like this is true of our example. Moreover, on some preference theories of well-​being, the fact that one person is more averse to the infringement of her right than another person is to the infringement of his right may be relevant in determining which person has a greater interest in avoiding infringement. I am simply assuming, however, that Britta’s interests would not be as adversely affected as Karl’s, once all relevant factors are taken into account. 47.  Nozick suggests that moral constraints against harming some for the sake of others are grounded in “the fact that there are distinct individuals each with his own life to lead,” whereas moral constraints against paternalism must focus on a different emphasis—​namely, “that there are distinct individuals, each with his own life to lead” (1974:  34, emphasis in original). If we prevent a person from “leading his own life” by infringing his rights in a way that benefits him, however, it seems that we would also prevent a person from leading his own life by infringing his rights in a way that benefits someone else. Consider a case in which, for whatever reason, you can save the life of some third party only by breaking my finger, without my consent. (Suppose further that I am not the threat to the third party’s life.) Now compare a case in which, for

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example suggests, the subjective version of the appeal to autonomy does not fare particularly well in the latter cases, since it seems to imply that infringements that have a more harmful effect on a right-​bearer’s interests can sometimes be easier to justify than otherwise similar infringements that have a less harmful effect on a (different) right-​bearer’s interests. It is unclear, then, that the appeal to autonomy can perform the task for which it was intended. Of course, there may be other ways of interpreting the appeal to autonomy besides those considered here, and it should again be conceded that moderate deontologists have not had all that much to say about how rights thresholds are determined. In the absence of further argument, however, I conclude that the zero threshold proposal remains a live option. It is worth taking note, once again, of both the aims and the limitations of the argument I have offered in this chapter. I do not claim to have shown that pro-​paternalism is consistent with every rights-​based view. Nor have I argued that the zero threshold proposal is forced on us by conclusive argument. Instead, I have argued that pro-​paternalism can be situated within a plausible moderate deontological theory of the sort that some ethicists find independently attractive. This conclusion may help to assuage any lingering feeling that pro-​paternalism can be endorsed only on consequentialist grounds, or that pro-​paternalists cannot leave room for an account of moral rights. Questions about the relationship between pro-​paternalism and rights-​ based moral theories may seem most pressing in our dealings with generally competent and informed adults. After all, even most anti-​paternalists agree that beneficial intervention on behalf of children and incompetent adults does not infringe their rights. Anti-​paternalists commonly defend this view by appealing to the distinction between hard and soft paternalism. It is to this distinction that I now turn.

whatever reason, you can save my life only by breaking my finger, without my consent. It is difficult to see how one could object that you prevent me from leading my life in the way I want in the second case, but not the first: in each case, you break my finger without my consent.

CHAPTER 6

Soft Paternalism I The Ignorance Exception

V

irtually all opponents of pro-​paternalism believe that it is at least sometimes permissible to intervene in a person’s choices for his own good. Mill famously argued that it is permissible to intervene on behalf of ignorant or ill-​informed decision-​makers: “If either a public officer or any one else saw a person attempting to cross a bridge which had been ascertained to be unsafe, and there were no time to warn him of his danger, they might seize him and turn him back, without any real infringement of his liberty; for liberty consists in doing what one desires, and he does not desire to fall into the river.”1 As we have seen, Mill also held that his anti-​paternalist principle does not cover people “still in a state to require being taken care of by others.”2 Most philosophers have accepted Mill’s conclusions, if not his arguments, about such cases: it is widely recognized as a good reason in favor of intervention that it would prevent self-​regarding harm among children, or adults of unsound mind, or those ignorant of the risks posed by their behavior. Many anti-​ paternalists, arguably including Mill, carve out further 3 exceptions. If it is permissible to intervene on behalf of permanently 1. Mill (1859: V.5, 294). 2. Mill (1859: I.10, 224). Mill further held that his liberty principle does not apply to “those backward states of society in which the race itself may be considered as in its nonage” (1859: I. 10, 224). Since Mill’s claim here is somewhat difficult to interpret, and is also likely to be controversial, I will set it aside. 3. Mill notes that it may be permissible to intervene in the self-​regarding choices of a person “in some state of excitement or absorption incompatible with the full use of the reflecting faculty” (1859: V.5, 294).

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incompetent adults, then presumably it is also permissible to intervene on behalf of temporarily incompetent adults. If someone chooses to cross a dangerous bridge when drunk, there would appear to be good grounds for detaining him, at least until he sobers up. And of course intoxication is just one of many factors that can impair deliberation. People sometimes choose impulsively, without thinking about the consequences of their behavior. Even when people are not subject to permanent forms of incapacity or mental illness, they sometimes experience temporary depression or severe emotional distress that impedes the pursuit of their projects and goals. There may be little difference between someone who decides to do something self-​destructive while drunk and someone who decides to do something self-​destructive while experiencing the powerful emotions that may result, for instance, from the death of a loved one or the discovery of a friend’s betrayal. As we have seen, many theories of paternalism attempt to accommodate these judgments by endorsing the distinction between hard and soft paternalism. Such theories maintain that intervention in fully informed and unimpaired self-​regarding choices is more difficult to justify (if indeed it can ever be justified) than intervention in ill-​informed or impaired choices that pose comparable self-​regarding risks. My goal in this and the next chapter is to challenge this view. In this chapter, I focus on what I shall call the ignorance exception, according to which intervention is more easily justified on behalf of ill-​informed decision-​makers. In the next chapter, I  turn to the impairment exception, according to which intervention is more easily justified on behalf of decision-​makers affected by conditions such as intoxication, powerful emotion, temporary depression, and so forth. To justify these exceptions to anti-​paternalism, one must identify a principled basis for treating ill-​informed or impaired choices differently from other imprudent choices. I argue that there is none. In making this argument, I  will be on the offensive against anti-​ paternalism. Virtually all anti-​paternalists accept the ignorance exception. If this view proves to be difficult to defend, then anti-​paternalists appear to confront a serious problem.4 In another sense, however, my aims in this and the next chapter are also defensive and further advance the discussion of rights begun in the previous chapter. One common objection to pro-​paternalism, pressed most forcefully by Joel Feinberg, holds that people have rights to personal sovereignty and that such rights 4.  Some of the apparently absurd consequences of denying the hard/​soft distinction while retaining a general commitment to anti-​paternalism are discussed in Wall (2009).

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proscribe all coercive intervention in their voluntary and informed self-​ regarding choices.5 Since Feinberg, among others, claims that this right is violated only by hard paternalism, the success of his objection to paternalism depends on whether the hard/​soft distinction can bear the weight placed on it. I begin this chapter by further discussing and clarifying the supposed distinction between hard and soft paternalism (section 6.1). I then set out a challenge to the ignorance exception:  it cannot easily handle cases in which people are responsible for their own ignorance (section 6.2). After considering two possible responses to this challenge (sections 6.3–​6.4), I  argue that it may have its source in anti-​paternalists’ failure to distinguish between two different ways of assessing voluntariness (section 6.5).

6.1 SOFT PATERNALISM

Since the most influential account of the hard/​soft distinction is due to Feinberg, it is worth setting out his view in some detail. According to Feinberg, hard paternalism involves intervention in a person’s voluntary imprudent behavior, while soft paternalism involves intervention in a person’s nonvoluntary imprudent behavior.6 Feinberg argues that voluntary self-​regarding choices are protected by autonomy, so that paternalistic rationales never provide valid grounds for (coercive) intervention in such choices. By contrast, nonvoluntary choices, “being the genuine choices of no one at all,” are not so protected.7 Thus, on Feinberg’s view, paternalistic rationales provide valid grounds to intervene in a person’s self-​regarding conduct when, and only when, such conduct is nonvoluntary, or when intervention is necessary to determine whether it is voluntary or not.8 Feinberg supports his view by adopting a particular conception of voluntariness. In an early paper, Feinberg held that voluntary actions “are those that are decided upon by deliberation, and that is a process that requires time, information, a clear head, and highly developed rational faculties.”9 Eventually, however, Feinberg came to find this standard too demanding. Voluntariness is a matter of degree, and the important question, on Feinberg’s mature view, is whether a given choice is “voluntary enough” 5. Feinberg (1986: chap. 19). 6. Feinberg (1986: 12–​16). 7. Feinberg (1986: 12). 8. Feinberg (1986: 12). See also Beauchamp (2009: 82–​83; 1977: 67–​68) and Malm (2005: 194, 204). 9. Feinberg (1971: 7).

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to merit protection from intervention. This threshold—​ that is, the standard that a self-​regarding choice must meet in order to be protected by autonomy—​is not invariant. Instead, it depends on the irrevocability and expected harmfulness of the choice’s effects.10 Feinberg offers the following account of a fully voluntary choice: One assumes a risk in a fully voluntary way when one shoulders it while fully informed of all relevant facts and contingencies, with one’s eyes wide open, so to speak, and in the absence of all coercive pressure. There must be calmness and deliberateness, no distracting or unsettling emotions, no neurotic compulsion, no misunderstanding. To whatever extent there is compulsion, misinformation, excitement or impetuousness, clouded judgment (as from alcohol), or immature or defective faculties of reasoning, to that extent the choice falls short of perfect voluntariness.11

Perhaps irrevocable and extremely self-​harmful choices—​for instance, some choices likely to result in death—​must come close to this standard if they are to be protected by autonomy. Such a high standard need not be met, however, by a person who wishes to run less significant risks, such as those posed by the use of a mildly dangerous recreational drug. Armed with his conception of voluntariness, Feinberg pursues what he calls “the soft paternalistic strategy”: he argues that apparently paternalistic liberty-​limiting policies are either unjustified or can be justified on soft paternalistic (or wholly nonpaternalistic) grounds. One central virtue of this strategy is that it appears to yield implications that most anti-​paternalists would find attractive. On the one hand, Feinberg’s view appears to support uncontroversially permissible instances of paternalistic intervention. It would support intervention on behalf of Mill’s bridge-​ crosser, since his ignorance about the bridge’s unsafe condition appears to cancel the voluntariness of his choice. Likewise, Feinberg’s view seems to imply that it is permissible to forcibly prevent people from committing suicide, at least temporarily, until their mental condition can be assessed. At the same time, however, the soft paternalistic strategy appears to seriously constrain the range of self-​regarding choices that can be subject to permissible intervention. Even the bridge-​crosser may not be detained once he is apprised of the risks posed by his behavior.

10. Feinberg (1986: 117–​24). See also Goldman and Goldman (1990: 68–​69). 11.  Feinberg (1971:  7); see also Feinberg (1986:  104) and Feinberg’s diagram 20-​5 (1986: 115).

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The hard/​soft distinction also appears to be well motivated. It is difficult to see how a person could have a basis for complaint about intervention in his nonvoluntary “choices.” As one commentator puts it, soft paternalism “does not bring about usurpation of autonomy because there is none to usurp.”12 Indeed, many philosophers, including Feinberg, claim that despite the label, soft paternalism is not appropriately regarded as a form of paternalism at all.13 Feinberg’s view can, however, be amended in at least two ways without abandoning the hard/​soft distinction that will be our focus. First, one might accept that the hard/​soft distinction is morally relevant without accepting Feinberg’s absolutist position with respect to hard paternalistic rationales. That is, one might argue that while hard paternalism is at least sometimes justified, it is (all else equal) more difficult to justify than soft paternalism.14 Second, anti-​paternalists have offered different accounts of the varieties of impairment or incompetence that may render a choice subject to soft paternalistic intervention. Some of these accounts hold that the hard/​soft distinction can be fleshed out without appealing to voluntariness.15 Moreover, some critics hold that the relevant question for the purposes of drawing the hard/​soft distinction is not whether the target’s choice is ill-​informed or impaired but, instead, whether the target would consent to the intervention if he were informed and unimpaired.16 Thus, while the “soft paternalist” label was originally coined to describe Feinberg’s voluntariness-​based view, I will use it more broadly to characterize a class of views that share two features.17 First, such views hold that some self-​regarding choices are protected by autonomy and that intervention in such choices is objectionable, if not absolutely impermissible; at the same time, they hold that some self-​regarding choices (for instance, ill-​informed choices) are not protected by autonomy and that intervention in such choices is not presumptively objectionable (at least not in the same way). Second, soft paternalistic views hold that whether a self-​regarding choice falls into the protected class does not depend entirely on its effects 12. Pope (2004: 671). 13. See Beauchamp (2009: 82–​83; 1977: 67–​68), New (1999: 68–​69), and Feinberg (1986: 12). For a conflicting view, see Fateh-​Moghadam and Gutmann (2014: 387–​88). 14. I depart here from Talbott (2010: 277), who construes the hard/​soft distinction as the distinction between “impermissible” and “permissible” paternalism. 15. See Scoccia (2013a: 79–​84; 2010: 489–​90; 2008: 356–​60; 1990: 320–​27), Cholbi (2013: 118–​25), Savulescu (1994), VanDeVeer (1986: esp. 75–​87), Hobson (1984), and Hodson (1977). 16. Scoccia (2013a: 81; 2010: 80; 2008: 356–​57; 1990: 323–​24), Talbott (2010: 281–​ 302), VanDeVeer (1986: 75), Woodward (1982: 72), and Hodson (1977: 65). 17. For this broad usage, see Scoccia (2013a: 76).

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on the decision-​maker’s interests, but instead depends on whether there was a flaw in the process of deliberation leading up to the choice or on whether the choice reflects the decision-​maker’s genuine preferences and values.18 While defenders of soft paternalism may disagree about precisely which deliberative flaws are relevant, they agree that the mere fact that someone has made a foolish or imprudent choice does not by itself show that his deliberation was flawed in the sense at issue.19 The soft paternalistic view has been extremely popular and is often invoked in debates over public policy and medical ethics.20 Before turning to a critical examination of the ignorance exception, a brief preliminary is in order. The “hard/​soft” terminology has been used to describe a number of different distinctions. For instance, one recent commentator uses “hard paternalism” to refer to policies that limit a person’s liberty or opportunities “against his will,” in contrast to soft paternalism, which is not contrary to the target’s will.21 Hard paternalism has also been described as “highly aggressive,” in contrast to soft paternalism, which is understood to preserve “freedom of choice.”22 The hard/​soft distinction as I have characterized it, however, overlaps with these other distinctions.23 Intervention in a person’s nonvoluntary or ill-​informed choices may limit his liberty against his actual will (even if it does not limit his liberty against his “hypothetical informed will”). For instance, though Mill’s bridge-​crosser presumably would not venture onto the bridge if he were fully informed, it is nonetheless true that he now wants to cross the bridge and that, until some explanation is given, he is likely to resent others’ attempts to interfere.24 Likewise, intervention on behalf of an ill-​informed agent could be highly aggressive. (Imagine that one has to grab and physically restrain the

18. This second feature is distinct from the first. After all, it could be that certain self-​ regarding choices are morally protected from intervention while others are not, but that the distinction between them concerns only their effects on the decision-​maker’s interests. A view of this sort appears to be suggested by Arneson (2015: esp. 679–​88). 19. To be sure, the fact that a person has made a certain sort of choice may provide some (defeasible) evidence that the choice is impaired, as when the tendency to make choices of the relevant sort is statistically correlated with mental illness. See Feinberg (1986: 124–​27). 20.  For some of the many examples, see Rhodes and Strain (2008:  59), who discuss the relevance of “affective forecasting errors” to medical decision-​making; Dixon (2001: 325–​31), who discusses restrictions on boxing; Savulescu (1994), who discusses medical decisions about life-​sustaining treatment; and Cudd (1990), who discusses drug restrictions. 21. de Marneffe (2010: 71–​72). 22. Sunstein (2014: 19). 23. A point also noted by Conly (2013: 5). 24. See Pope (2004: 672–​75), Kleinig (1983: 58), and Carter (1977: 133, 138).

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bridge-​crosser to prevent him from walking unawares into danger.) At any rate, to avoid confusion, I  will continue to use the modifiers “hard” and “soft” only in the roughly Feinbergian sense described here. It may seem that soft paternalism is rather easy to justify, especially in cases involving ignorance. Can anyone seriously think that it is objectionable to intervene in Mill’s bridge case? Nonetheless, anti-​paternalists should be concerned about the justifiability of soft paternalism. Soft paternalistic rationales are often invoked to justify treating people in ways that they currently oppose. And anti-​paternalists are generally suspicious of rationales that appeal to a person’s interests in order to justify restrictions on his liberty. Thus, proponents of the hard/​soft distinction need to show not merely that hard paternalistic rationales are invalid or otherwise problematic but also that soft paternalistic rationales are not problematic (or not as problematic).

6.2 IGNORANCE AND RESPONSIBILITY

At first blush, Feinberg’s appeal to voluntariness seems to furnish a straightforward defense of the ignorance exception. In typical cases, people are not responsible for the outcomes of their nonvoluntary behavior. If a person will not be responsible for the outcome of his behavior, it seems plausible to suppose that intervention in such behavior would not violate his autonomy. And it seems clear that ignorance can undermine responsibility. If I am unaware that my neighbor’s doorbell is rigged to detonate a lethal bomb, then I am not morally responsible for his death if I ring the doorbell. What is true of responsibility for other-​regarding harm in this sort of case would also appear to be true of responsibility for self-​regarding harm. If Mill’s bridge-​crosser plummets to the ground after the collapse of the dangerous bridge, his ignorance seems sufficient to show that he is not responsible for his death. The fact that he will not be responsible would in turn seem to show that intervention would not violate his autonomy. Things are not so simple, however. In the domain of other-​regarding conduct, we recognize a distinction between culpable ignorance and nonculpable ignorance. Only the latter obviously cancels responsibility. For instance, if I negligently fail to ensure that the area is clear before taking archery practice, I am responsible for any resulting harm to a bystander, even if I was unaware of his presence. Now it may be odd to speak of culpable ignorance in the self-​regarding sphere; culpability typically implies wrongdoing, and perhaps an agent cannot wrong himself. But it is perfectly sensible to say that an agent’s self-​harmful choice can be attributed

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to ignorance for which he is responsible. (For brevity, however, I will continue to speak of self-​regarding choices that are produced by culpable ignorance.) Defenders of the ignorance exception, then, face the following question:  When a decision-​maker’s self-​harmful choice results from ignorance for which he is responsible, does intervention in his choice violate autonomy in the way supposedly characteristic of hard paternalism? Consider the two simplest answers to this question. Suppose first that the anti-​paternalist answers “yes”: culpably ignorant self-​regarding choices are protected from intervention in the same way that voluntary self-​regarding choices are generally thought to be. This answer will seem attractive if we accept two claims: first, that decision-​makers are responsible for the consequences of their culpably ignorant choices and, second, that a self-​regarding choice is protected from intervention if the decision-​maker will be responsible for its consequences.25 Nonetheless, the view that intervention in such choices involves an objectionable form of hard paternalism appears to face obvious counterexamples, as is revealed by the following variant on Mill’s case: Reckless Hiker: As Reckless Hiker enters a national park, a ranger informs him that a few of the park’s bridges have been weakened by recent storms. The ranger tells Reckless Hiker that he can learn which bridges are safe to cross only by stopping at park headquarters and obtaining an up-​to-​date list of the dangerous bridges. Since the headquarters are far away from the park entrance, however, Reckless Hiker decides not to pick up the list. When he encounters a bridge that (unbeknownst to him) is on the verge of collapse, he decides to cross—​not because he relishes the risk or wishes to kill himself but, instead, because he wants to complete his hike. Now suppose that a bystander has witnessed this entire sequence of events:  she knows that Reckless Hiker was warned but chose not to obtain the list of dangerous bridges, and she sees him about to cross a bridge that she knows to be dangerous. Virtually all anti-​paternalists would still permit the bystander to intervene, at least until Reckless Hiker has been

25. Quong argues that it is not paternalistic to intervene in a person’s affairs if that person lacks relevant information. But he qualifies this judgment in cases of culpable ignorance:  “When someone does not have the relevant information, and we think she should have taken steps to get this information, then if we act to promote her interests, and our act is motivated by a negative judgment about her failure to have the right information, our act can be paternalistic” (2011: 82n25).

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informed of the danger. They would presumably claim that the bystander’s intervention involves a form of soft paternalism that is comparatively easy to justify.26 (Indeed, the stipulations I have made do not modify so much as fill in Mill’s original example, since Mill never specified that there was no way for the bridge-​crosser to determine whether the bridge is safe.) The proposal we are considering, however, would hold that intervention in this case is an instance of presumptively objectionable hard paternalism. Reckless Hiker is clearly responsible for his ignorance, since he disregarded the park ranger’s warning and chose not to collect relevant information. In response to cases such as this, anti-​paternalists might be tempted to argue that culpably ignorant choices are not protected by autonomy, so that intervention in such choices is appropriately considered soft. This position might be defended by distinguishing a person’s responsibility for his ignorance, on the one hand, from the voluntariness of his subsequent acts and choices, on the other. The fact that someone is responsible for his ignorance, on this view, does not show that the ill-​informed choices affected by such ignorance are voluntary.27 If this is correct, we could plausibly conclude that although Reckless Hiker voluntarily chose not to obtain the list of dangerous bridges, he does not voluntarily endanger his life, and thus his choice to cross the bridge is not protected by autonomy. This second view, however, also seems to yield implications that most defenders of the ignorance exception would reject. Consider the following example: Willfully Ignorant Patient: Patient has been diagnosed with a potentially deadly disease. He identifies as a spontaneous person and does not want to feel as if his life “has a deadline.” He therefore requests that his doctor not disclose his life expectancy under alternative treatment scenarios, though he still wishes to make his own medical decisions (for example, by considering the likelihood that each treatment will prolong his life at all). Patient’s doctor explains that there are two ways to treat the 26.  This conclusion may be challenged by Arneson (1980:  485). In a similar vein, Brock claims that on Feinberg’s view “character traits like impetuousness, and the conditions to which they give rise, like acting in ignorance of the true risks of one’s behavior, are not voluntariness reducing if they have themselves been deliberately chosen, or affirmed and accepted by the agent as a part of his or her character, or at the least reflect the agent’s character in deep and important ways” (1988: 563). Still, it seems clear that Feinberg would not rule out intervention on behalf of Reckless Hiker (1986: 128–​32). For related criticism of Arneson’s earlier view, see Scoccia (1990: 322–​ 23). For Arneson’s more recent views, which are friendlier toward paternalism, see his (2015) and (2005). 27. Feinberg (1986: 130).

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disease: Procedure A and Procedure B. Patient consents to A but refuses B.  The doctor, however, has excellent reason to believe both that this choice is contrary to Patient’s best interest and that Patient would make the opposite choice if he were provided with the life expectancy data. In other words, Patient makes an imprudent treatment decision because he lacks information that he has explicitly refused. If culpably ignorant choices are not protected by autonomy, then intervention in Patient’s choice would be an instance of soft paternalism. Yet I suspect that virtually all anti-​paternalists would argue that the doctor may not intervene in this case, or at least that the doctor’s intervention would be best classified as hard paternalistic.28 Of course, the doctor could intervene in either of two ways: she could substitute Procedure B for Procedure A without Patient’s consent, or she could inform Patient against his will. Most anti-​paternalists would likely classify each of these forms of intervention as hard, however. In case it is thought that merely informing Patient would raise no serious concerns about paternalism, we should recognize that coercive measures may be necessary to inform someone who does not want to be informed. For instance, in order for the doctor to succeed in disclosing the prognosis, someone may need to forcibly prevent Patient from leaving the room or plugging his ears as the doctor speaks. The dilemma for the ignorance exception can now be summarized. Both Reckless Hiker and Willfully Ignorant Patient make choices induced by ignorance:  they would choose differently if fully informed. Both Reckless Hiker and Willfully Ignorant Patient seem to be responsible for their ignorance: they voluntarily chose not to obtain relevant information. If, on the one hand, it is soft paternalistic to intervene in self-​harmful choices induced by culpable ignorance, then both cases involve only soft paternalism. If, on the other hand, it is hard paternalistic to intervene in self-​harmful choices induced by culpable ignorance, then both cases involve hard paternalism. The problem is that most anti-​paternalists would hold that intervention on behalf of Reckless Hiker is soft while intervention on behalf of Willfully Ignorant Patient is hard.

28. For relevant discussion, see Bullock (2016: 412), Cullen and Klein (2010: 126), Savulescu (1994: 195–​96), Feinberg (1986: 310–​12), and VanDeVeer (1986: 202).

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6.3 PREFERRING IGNORANCE FOR ITS OWN SAKE

I now want to consider an apparently promising response to this problem. This response appeals to the different attitudes that Reckless Hiker and Willfully Ignorant Patient have toward their ignorance. Patient values or desires ignorance for its own sake, or for the peace of mind that it will bring him. His ignorance is chosen not merely in the sense that it is the result of his prior decisions but also in the more robust sense that it is something at which he has positively aimed. If the doctor intervenes to inform Patient, she will frustrate his desire to remain ignorant. For this reason, such intervention may appear inconsistent with respect for autonomy.29 Unlike Patient, Reckless Hiker does not value or desire ignorance for its own sake. Instead, he merely desires to avoid the cost or inconvenience of gathering information. This difference between Reckless Hiker and Patient may seem to account for the likely anti-​paternalist response to these cases. Because Patient wants to remain ignorant, it may appear that paternalistic intervention would impose on him in a way that it would not impose on Reckless Hiker. Thus, one might argue, it is hard paternalistic to intervene on behalf of ill-​informed decision-​makers who want to remain ignorant or who value ignorance for its own sake, but soft paternalistic to intervene on behalf of ill-​informed decision-​makers who do not desire or value ignorance in this way. This proposal seems to yield the anti-​paternalist’s desired verdicts about the two examples discussed so far. It faces two serious problems, however. The first is that anti-​paternalists are likely to classify some intervention as hard paternalistic, even if it is carried out on behalf of culpably ill-​informed decision-​makers who do not desire ignorance for its own sake. The cases of culpable ignorance considered so far, in which a decision-​maker is either negligent (like Reckless Hiker) or desires to remain ignorant (like Willfully Ignorant Patient), do not exhaust the possibilities. Consider the following example: Gambler:  Gambler imprudently joins a high-​stakes poker game. He permits a spectator to sit next to him and watch the game, on the condition that she not interfere. Once the cards are dealt, Gambler makes a particularly large bet. The spectator, a much more seasoned card player, recognizes that Gambler will almost surely lose. She can interrupt to

29.  Of course, if the doctor instead proceeds with Procedure B without informing Patient or procuring his consent, she will frustrate his desire to make treatment decisions through his preferred method.

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warn Gambler before the final bets are placed, but doing so would invalidate the game—​a game in which Gambler wants to participate. Let us assume that Gambler is generally aware of the risks posed by gambling, that he has not previously authorized others to interfere in his gambling behavior, and that his gambling does not threaten the interests of others. Under these circumstances, anti-​paternalists would presumably hold that others may not intervene to prevent him from joining the card game (or at least that such intervention would involve hard paternalism). And if it would be hard paternalistic to prevent Gambler from joining the game in the first place, then presumably it would also be hard paternalistic for the spectator to invalidate the game by interrupting to warn him.30 The reply we are now considering cannot easily accommodate this judgment, however. This reply, recall, holds that intervention in culpably ignorant choices is soft paternalistic when the target does not desire or value ignorance for its own sake. Gambler places his imprudent bet only because he is unaware of the high probability that he will lose. Yet Gambler does not value such ignorance. To the contrary, he wants to be accurately apprised of the probability that he will lose, since this is one of the things involved in being a good card player.31 In short, Gambler is like Reckless

30. In case it is thought that the spectator’s intervention would be wrong only because it is unfair to others playing the game, it is worth noting that we can devise variations on our example to avoid this concern. Imagine that Jim, a self-​reliant adventurer, decides to make an expedition across a dangerous landscape. Jim will regard it as a significant achievement if he can successfully survive the expedition without help from anyone else. He also wants to take along a camera crew to film a documentary about his expedition. He thus provides the camera crew with strict instructions never to interfere with him. Now suppose that, at one point on his voyage, Jim must decide how to cross a raging river. After doing some calculations, he decides that a log bridge over the river is probably stable enough to hold his weight. A member of the camera crew filming from the safety of a helicopter, however, recognizes that the bridge is far less stable than Jim believes and is very likely to collapse. Under these circumstances, most anti-​paternalists would likely hold that the camera crew may not intervene (or at least that such intervention would involve hard paternalism). Yet in this case, there is an obvious sense in which Jim wants to know whether the bridge is safe to cross, since he goes to some lengths to acquire this information. For relevant discussion of value systems such as Jim’s, see Glod (2013: 414–​15). 31. One might respond to this example by pointing out that while Gambler may want information about his probability of losing, he does not want the spectator to provide him with such information. One might then argue that this point shows that his bet is voluntary, or that intervention on his behalf would be an instance of hard paternalism. This line of argument may run into difficulty in other cases. After all, Reckless Hiker may not actually want the benevolent bystander to prevent him from crossing the bridge. It may be true that he would want the bystander to prevent him from crossing the bridge, if he were aware of the probability that it will collapse. But by the same

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Hiker in that he presumably wants the information possessed by the prospective paternalistic agent. But he is unlike Reckless Hiker in that intervention on his behalf would probably be classified as hard paternalistic, according to most anti-​paternalists. Even if this problem could be avoided, however, there is a second difficulty for the suggestion that we ought to focus on whether the ill-​informed agent desires ignorance for its own sake:  this response draws an apparently arbitrary distinction between, on the one hand, liberty-​limiting intervention that requires people to inform themselves and, on the other, liberty-​limiting intervention that serves other paternalistic purposes. To appreciate this point, consider Feinberg’s suggestion that instead of passing laws requiring motorcyclists to wear helmets, the government could require prospective motorcyclists to take a safety course addressing the self-​ regarding risks of motorcycling and the benefits of helmet use, followed by “simple written examinations” to ensure that “everyone was listening.”32 For the sake of argument, let us assume that participation in such a personal safety course would often affect the choice about whether to wear a helmet: many people who would otherwise choose not to wear a helmet will wear one if they take the safety course. (If anything, this assumption should make Feinberg’s suggested policy seem more attractive.) Now presumably few, if any, motorcyclists value or desire ignorance about the benefits of helmet use. Those who remain ignorant may simply lack the time or motivation to inform themselves. In this respect, they are more like Reckless Hiker than Willfully Ignorant Patient. The reply we are now considering thus implies that it is only soft paternalistic to require all motorcyclists to take the safety course (or to require them to take the safety course before permitting them to ride without a helmet). Such intervention is designed to eliminate ignorance that is not desired for its own sake. Although Feinberg seems to endorse this conclusion, it raises deep problems for his position, and for others that rely on the hard/​soft distinction. The main problem is that requiring people to take the safety course seems paternalistic—​and not merely softly so. If it is objectionably paternalistic to require people to wear motorcycle helmets when they would otherwise voluntarily choose not to wear them, it would surely seem objectionably paternalistic to require people to attend a personal safety course

token, it may well be true that Gambler would want the spectator to invalidate the bet, if he were aware of the probability that he will lose. 32. Feinberg (1986: 136). Some have likewise argued that those who wish to become surrogate mothers should be required to take a course that would help them appreciate what the experience will be like. See Damelio and Sorensen (2008).

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when they would otherwise voluntarily choose not to attend.33 Imagine, for example, that a prospective motorcyclist has already passed an exam addressing the other-​regarding risks of motorcycle riding. He is then told that he can get his motorcycle license if he completes a four-​hour class covering the self-​regarding risks of motorcycling and then passes an exam on the relevant material. The prospective motorcyclist may protest: “I know that riding a motorcycle poses some risks to me, and I  know that I  may learn something from the safety course. Perhaps the course would even change my mind about helmet use. Still, I do not want to take several hours out of my schedule to attend the course and take the exam. Since this choice does not affect anyone besides me, it is no one else’s business.” On the face of it, this complaint seems no more or less valid than complaints about other measures that are commonly condemned as (hard) paternalistic. The choice not to gather information is, after all, a choice. It would be unreasonable to argue that such a choice is not voluntary because it is made in ignorance of the information that one is deciding whether to acquire, since such an argument would imply that one can never voluntarily choose not to inform oneself. And if one voluntarily chooses not to acquire information, intervention that requires one to inform oneself, for one’s own good, would certainly appear to be a variety of hard paternalism. There is a closely related but more general point worth making here. In addition to choices about our overt behavior, we make choices about the conditions under which we will choose how to behave. Someone confronted with a choice about some issue may now decide (while calm) that he will wait to make this choice until the “heat of the moment.” In such a case, we can distinguish two choices: first, the earlier choice to postpone the decision about the relevant issue until later and, second, the later choice about how to resolve the issue. It would seem (hard) paternalistic to force such a person to make his choice now, even if one does not force him to resolve the issue in any particular way. Likewise, someone may decide that he will make a certain choice without full information on the grounds that it is too costly or inconvenient to acquire this information. The prospective motorcyclist I have described effectively makes two choices: first, he decides to make a choice about his motorcycling behavior without taking the time necessary to gather information, and, second, he

33.  This problem may not arise for all of the different ways in which information could be provided. For instance, the state does not seem to interfere in the voluntary choices of smokers when it merely requires warning labels to be printed on cigarette packaging. For the sake of argument, however, I will suppose that the only effective way to inform prospective motorcyclists is through the safety course.

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chooses to ride a motorcycle without a helmet. If anti-​paternalists support the safety course requirement, they accept intervention that overrides the first of these choices. But this exposes them to the charge of arbitrariness. After all, a choice about the conditions under which one will choose may reflect the decision-​maker’s values and preferences just as other choices do. For instance, the choice to make a decision about one’s helmet use without attending a safety course may reflect the premium that one places on one’s leisure time. Anti-​paternalists are in a difficult position if they claim that autonomy does not necessarily protect apparently voluntary choices about the conditions under which one will choose how to behave.

6.4 HYPOTHETICAL INFORMED CONSENT

I have argued that it is difficult to develop an account of the ignorance exception that yields the anti-​paternalist’s desired verdicts about cases. So far, however, I have not considered appeals to hypothetical consent, which are sometimes thought to play an important role in distinguishing hard paternalism from soft paternalism. The problems discussed earlier seem merely to resurface for such hypothetical consent-​based views, however. In this section, I explain how. According to hypothetical consent-​based accounts, paternalistic intervention is soft provided that the target would consent to it if he were informed (and unimpaired by conditions such as intoxication, mental illness, and so forth), and hard otherwise. Notice that the question of whether a person would consent to intervention under these conditions is distinct from the question of whether his actual choice is voluntary. For instance, even if a person’s actual choice is nonvoluntary because influenced by intoxication or temporary insanity, there could be good reason to believe that he would not consent to intervention in this choice even if he were not intoxicated or insane.34 Under these circumstances, the hypothetical consent test implies that it would be hard paternalistic to intervene, even though the target’s choice is not voluntary. To be sure, some philosophers have argued that hypothetical consent is morally irrelevant:  hypothetical consent may be incapable of justifying actual acts. I now want to set aside this more general concern about the moral weight of hypothetical consent. For present purposes, let us instead consider whether the hypothetical

34.  For a clear statement of this point, see Scoccia (2013a:  81; 2010:  489; 2008: 356–​57).

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consent test, if generally acceptable, could be usefully applied to the cases we have been examining. One preliminary question is what, precisely, the target of soft paternalism is supposed to be hypothetically consenting to. Consider the following principle, defended by Donald VanDeVeer: A’s paternalistic interference, X, with S is justified if 1. S would validly consent to A’s Xing if (a)  S were aware of the relevant circumstances; (b) S’s normal capacities for deliberation and choice were not substantially impaired; and 2. A’s Xing involves no wrong to those other than A or S.35

To determine whether this principle justifies intervention in Mill’s bridge case, perhaps we should ask whether the bridge-​crosser, if he were “aware of the relevant circumstances,” would consent to the bystander’s stopping him. Interpreted in this way, however, the principle is not helpful. After all, if the bridge-​crosser were fully informed, he would abort his plan to cross the bridge, without any need for the bystander to intervene. There is an alternative interpretation of the hypothetical consent test, however. Perhaps we should ask whether the target, if fully informed, would consent to intervention in the choices he might make while less than fully informed. Let me explain this latter question in a bit more detail. Suppose that someone has made an ill-​informed choice. We might ask the following: if this person were to temporarily acquire all the information he currently lacks, knowing that he is soon likely to lose or forget it, would he consent to intervention in a future, ill-​informed choice, such as the one he has actually made? If the answer is “yes,” one might argue that his actual choice is not protected by autonomy, since he would hypothetically consent to intervention in the relevant sense. If we are sympathetic to the hard/​soft distinction, however, this does not appear to be the right question to ask. To see why, return to the case of Willfully Ignorant Patient. Patient, we have been supposing, insists that his doctor not provide him with certain types of information, even if this information might affect his treatment choices. The proposal we are now considering would have us ask whether Patient would want us to act against these wishes if he were to possess information that he explicitly refuses and does not want. If we accept an anti-​paternalist view according to which even seriously imprudent choices can merit respect, however, it is

35. VanDeVeer (1986: 75).

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not clear why we should be especially concerned about what Patient would think if he were to gain knowledge that he has deliberately been aiming to avoid. More generally, theorists appeal to hypothetical consent only when they believe that there is something defective or nonautonomous about a person’s actual choices, or that his actual choices are not authoritative. But it is not clear why an anti-​paternalist should think that Patient’s choices are defective or nonautonomous in this way, and thus not clear why the anti-​paternalist should think that it is legitimate to appeal to hypothetical consent in this sort of case. Indeed, depending on the details of the case, the hypothetical consent test may permit intervention on Patient’s behalf. Even if Patient is generally competent and desires to remain ignorant as an expression of his commitment to a life of spontaneity, it may well be that he would consent to his doctor’s intervention if (contrary to his actual will) he were to be informed. Under these circumstances, however, I suspect that most anti-​ paternalists would still classify intervention on Patient’s behalf as a form of hard paternalism.36 A critic might suspect that the hypothetical consent test can be modified so as to avoid the problems just described. Thus, one might argue that the relevant question is this: Would the target consent to intervention if he were unimpaired and had all the information that he wants? This proposal may initially appear to yield the anti-​paternalist’s desired conclusions about several of the cases we have considered: Reckless Hiker presumably wants information about the bridge’s safety, even if he is too lazy or hurried to acquire it, while Patient and Gambler do not want to be given information relevant to their choices. The proposed modification to the hypothetical consent test is ambiguous, however. According to one interpretation, it asks whether the target would consent if he had all the information that he would ideally like to have if the acquisition of information were costless and did not interfere with the satisfaction of his other desires or the pursuit of his other goals. This interpretation 36. Of course, it is easy to think of further variants on this example. Imagine that each of two daredevils, Andy and Annie, plans to attempt a dangerous stunt, one right after the other. Andy goes first. Annie indicates that she does not want to know how Andy’s attempt went. She is concerned that if she learns that Andy was seriously injured, she will “chicken out,” and that if she learns that Andy did well, she will be complacent. In fact, Andy was seriously injured, and there is excellent reason to believe that if Annie were to learn how badly he was injured, she would both refrain from attempting the stunt and consent, in the sense at issue, to our telling her of Andy’s fate. Still, given that Annie has told us not to provide her with such information precisely because she is worried that it will affect her willingness to try the stunt, it seems that informing her should count as a form of hard paternalism.

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would exclude only information about which the target desires to remain ignorant for its own sake. It is thus subject to the problem posed by the Gambler case:  ideally, Gambler would like to know about the likelihood that he will lose, if he could acquire this information costlessly and without invalidating the game. Nonetheless, even if Gambler would consent to intervention if he had this information, such intervention seems to fall on the “hard” side of the hard/​soft divide. A similar point can be made about the motorcycle safety class described earlier: those who would choose to skip the class would presumably do so only because they do not want to take the time to attend, not because they desire to remain ignorant for its own sake. Nonetheless, the fact that they would (or might) consent to intervention in their choices if they were forced to take the class does not appear to show that such intervention is merely soft. As we have seen, it seems that a motorcyclist may autonomously choose not to gather information before making a decision about helmet use. On an alternative interpretation of the modified hypothetical consent test, it asks whether the target would consent to intervention if he had all the information that he is willing to acquire in the actual circumstances, where such acquisition may not be costless. If the hypothetical consent test is interpreted along these lines, however, it yields problematic implications in the Reckless Hiker case. Assume that the only way for Reckless Hiker to acquire information about the bridge’s safety is by returning to park headquarters, but that he does not want to do so, since he prefers to continue his hike.37 Since Reckless Hiker has all the information he is willing to acquire in the actual circumstances, where such acquisition is not costless, the suggested variant of the hypothetical consent test seems to rule out intervention on his behalf. The hypothetical consent test does not resolve our problem cases as anti-​paternalists might have hoped. I have argued that the ignorance exception cannot be easily applied to decision-​makers who are responsible for their ignorance. The proposals we have considered seem either too restrictive, counting as hard some forms of intervention that most anti-​paternalists would classify as soft, or too permissive, counting as soft some forms of intervention that most would classify as hard. In the next section, I attempt to locate the deeper source of the problem for the ignorance exception. In the process, I explain why it is unlikely that the ignorance exception can be adequately defended.

37. For the purposes of the example, we can even suppose that Reckless Hiker is unable to obtain the relevant information from the prospective intervener: imagine that the intervener is for some reason unable to communicate with Reckless Hiker, though she can activate a device that will forcibly prevent him from stepping onto the bridge.

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6.5 VOLUNTARINESS AND RISK

In order to defend the ignorance exception, one needs to do more than show that it accommodates our intuitions about cases. One also needs to explain why ill-​informed choices are not protected by autonomy. As we have seen, Feinberg and many other defenders of the ignorance exception attempt to do this by appealing to voluntariness. They hold that if a person has not voluntarily chosen to harm himself (and would consent to intervention if he were capable of voluntary choice), then intervention aimed at preventing self-​regarding harm is not paternalistic in any objectionable sense. Such intervention, if successful, may be thought only to prevent harm that does not even flow from the target’s own will. In assessing voluntariness, however, philosophers sometimes fail to pay careful attention to the distinction between: ( a) an agent’s voluntarily bringing about some harmful state of affairs; and (b) an agent’s voluntarily accepting a risk of harm.38 If the relevant harm is death, for instance, this amounts to the distinction between an agent’s voluntarily killing himself, on the one hand, and his voluntarily assuming a risk of death, on the other. After briefly illustrating this distinction, I  will show how it creates a problem for popular anti-​ paternalist views that rely on the ignorance exception. The distinction seems relatively clear in cases such as the following. Imagine that an adventurous mountaineer attempts a climb that he knows to be especially dangerous. Assuming that the mountaineer is sane, sober, and otherwise competent, he voluntarily chooses to climb the mountain, foreseeing that he may die as a result. He therefore voluntarily assumes the risk of death. But if he dies (in an accidental fall, for instance), he has not voluntarily brought about his own death or voluntarily killed himself. In this respect, the mountaineer can be distinguished from someone who attempts to commit suicide by jumping from the top of a mountain. The suicide victim has voluntarily killed himself (assuming, again, that he is sane, sober, and the like). To be clear, each of these decision-​makers is in some way responsible for his own death. But to say that a person is in some way responsible for his own death is not necessarily to say that he has voluntarily killed himself.

38.  A  similar distinction is made, albeit in a very different context, by Boonin (2003: 154).

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Notice that the distinction between (a)  and (b)  is not equivalent to the distinction between an agent’s acting in a way that is certain to harm him and an agent’s acting in a way that is more or less likely to harm him. A person can voluntarily kill himself through a method that was not certain to result in his death—​for instance, by using an antique shotgun that frequently misfires.39 Even if this person’s suicide attempt fails, we might still say that he has voluntarily chosen or attempted to bring about his own death. The distinction at issue instead seems connected to the agent’s intentions. Even if the adventurous mountaineer and the prospective suicide victim are equally likely to die as a result of their behavior, only the latter acts in order to bring about his own death. Keeping in mind the distinction between one’s voluntarily bringing about a harmful state of affairs and one’s voluntarily accepting a risk of harm, consider Feinberg’s assessment of a case in which a person leaps from a tall building due to his mistaken belief that a pair of wings will enable him to fly: There is a thin description of [this person’s] act . . . according to which it is voluntary. He jumped off the ledge voluntarily in that he was jumping off the ledge and not merely to another part of it. But he doesn’t dive straight down voluntarily; he doesn’t kill himself voluntarily; he doesn’t die voluntarily. In these relevantly inclusive “thick” descriptions, what he does is nonvoluntary.40

From the fact that this person “doesn’t kill himself voluntarily,” Feinberg concludes that “what he does is nonvoluntary” and that intervention would thus be justified on soft paternalistic grounds. Many others have endorsed similar reasoning. Bill New claims that intervention in Mill’s bridge case is not genuinely paternalistic, since the bridge-​crosser “could not be assumed to wish harm on himself,” at least in the absence of further evidence to the contrary.41 This point echoes Mill’s claim that intervention does not involve any “real infringement of [the bridge-​crosser’s] liberty; for liberty consists in doing what one desires, and he does not desire to fall into the river.”42 39. Of course, that the relevant outcome is unlikely given the agent’s behavior—​and that the agent knows this—​may provide evidence that he does not voluntarily bring it about. But we can certainly imagine cases in which someone voluntarily brings about a state of affairs even through means that are unlikely to achieve it. To modify our example slightly, soldiers voluntarily killed their enemies in past wars, even though their weapons were so unreliable that their attempts were more likely to fail than to succeed. 40. Feinberg (1986: 132, emphasis added). 41.  New (1999:  69). For similar claims, see, e.g., Wall (2009:  405) and Scoccia (2008: 358n12). 42. Mill (1859: V.5, 294).

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Now it is clearly true that Feinberg’s winged man, like Mill’s bridge-​ crosser, does not “kill himself voluntarily.” But this feature fails to distinguish these cases from others in which intervention would be classified as hard by most anti-​paternalists. As I have noted, although the mountaineer may be fully aware of the risks, he does not voluntarily kill himself if he dies during his climb. To take a more common case, many smokers voluntarily choose to smoke, foreseeing that they may develop lung cancer as a result. But smokers who die of lung cancer have not voluntarily killed themselves. The typical smoker, to borrow New’s language, does not “wish harm on himself” or desire to develop lung cancer. As such examples suggest, it seems relatively rare for people to voluntarily bring about the harmful consequences of their risky self-​regarding behavior.43 The appeal to voluntariness in the (a) sense—​that is, to whether or not someone voluntarily brings about the harmful upshot of his self-​regarding behavior—​provides no support for the ignorance exception. Such an appeal fails to identify a difference between ill-​informed self-​harmful choices, on the one hand, and many fully informed self-​harmful choices, on the other. It is worth briefly addressing one possible complication. Many discussions of Mill’s example assume that the bridge-​crosser is certain to die unless someone intervenes. In contrast, the typical smoker, like our adventurous mountaineer, is not certain to die as a result of his behavior. But we can eliminate this difference by modifying Mill’s example so that the bridge’s collapse is fairly probable, but not certain. Assuming that the bridge-​crosser is still far more confident in the bridge’s safety than is warranted, proponents of the ignorance exception would presumably still claim that the bridge-​crosser’s choice is insufficiently voluntary. And if we interpret this appeal along the lines of (a), it will amount to the following: if the bridge-​crosser dies, as he very well might, it will not be true that he has voluntarily killed himself. As I have argued, similar claims are true of the mountaineer and the smoker. This suggests that defenders of the ignorance exception should instead focus on (b), or whether the decision-​maker has voluntarily assumed the relevant risks. And of course the important question now is: Under what conditions does someone voluntarily assume a risk? I  cannot here offer a full-​blown account of voluntariness. For my purposes, the important

43. Of course, people do sometimes voluntarily bring about the harmful consequences of their self-​regarding behavior. This is true of some suicide victims, and it is probably also true of some (sane) masochists. The point here is only that such cases are relatively rare and hardly exhaust the range of cases in which soft paternalists would judge intervention to be of the hard variety.

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point is that there are good grounds for claiming that an agent voluntarily assumes a risk of harm when he knows that his behavior could result in the relevant harm, knows that he could fairly easily gather information that would more precisely reveal the nature of the risk, and chooses not to gather this information. Thus, whether an ill-​informed agent voluntarily runs a risk sometimes depends on what that agent ought to have known. In this sense, the notion of voluntariness as applied to assumptions of risk is partly normative.44 This can be seen in both the self-​regarding and other-​ regarding spheres. As for the other-​regarding sphere, compare two agents, each of whom injures a child while taking archery practice in an open field. Suppose that the first archer negligently failed to check that the area was clear, while the second scrupulously and meticulously checked but failed to detect a child hidden within a hay bale. Both archers were unaware that a child was present, and neither would have taken practice if he had known of the child’s presence. Still, it appears that the first archer has voluntarily exposed a child to a risk of harm while the second has not.45 Indeed, this seems to be why the first archer, unlike the second, is culpable. After all, it is wrong for the first archer to take practice without ensuring that the area is clear only because, in doing so, he exposes others to a risk of harm. If he does not voluntarily expose others to this risk, it may be unclear how he could be an appropriate object of blame. A similar point seems to hold in the self-​regarding sphere. An assumption of risk is not voluntary if the decision-​maker is ignorant through no fault of his own—​because he is a victim of fraud, for instance. But it would appear that someone who engages in risky self-​regarding behavior after negligently failing to inform himself runs the relevant risks voluntarily. Otherwise, it is difficult to see how such a decision-​maker could be subject to rational criticism for running these risks.46 This analysis suggests that Reckless Hiker voluntarily assumes a risk of death in crossing the bridge

44.  The idea that voluntariness is at least partly normative is not unique to cases involving ignorance. According to Wertheimer’s influential account of coercion, whether one has been coerced in a way that undermines the ascription of legal and moral responsibility depends on whether one has been subjected to a threat, as opposed to an offer. On Wertheimer’s view, an agent issues a coercive threat only if she proposes to do something that she has no right to do. See Wertheimer (1987: esp. chap. 12). 45. I assume, of course, that the second archer was not wrongly trespassing into an area in which archery is forbidden, and so on. 46. It would be implausible to claim that while Reckless Hiker is subject to rational criticism for crossing the bridge without gathering more information, he is not subject to rational criticism for assuming a risk of death. It is imprudent for Reckless Hiker to cross the bridge without gathering more information only because, in doing so, he assumes a risk of death.

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(though he does not, of course, voluntarily kill himself). And it seems to me that this is correct. Imagine that, immediately prior to stepping onto the bridge, Reckless Hiker has the following thought: “If I cross, I may be risking my life. But I  want to finish my hike, so I  will take my chances.” Under these circumstances, I  see no reason to classify Reckless Hiker’s assumption of risk as nonvoluntary. As far as the voluntariness of the assumption of risk is concerned, he seems relevantly like others who are simply more risk-​tolerant than most of us. If anti-​paternalists are reluctant to accept this judgment, it may be because they antecedently believe both that it is permissible to intervene on Reckless Hiker’s behalf and that it is permissible to intervene only in cases of compromised voluntariness. But the anti-​paternalist view becomes vacuous if its proponents use their judgments about the permissibility of intervention as a basis for making assessments of voluntariness. I have argued that the voluntariness of an assumption of risk sometimes depends on what the decision-​maker ought to know, or on whether he is ignorant as a result of his own negligence. In reply, an anti-​paternalist may object that when he describes an assumption of risk as voluntary or nonvoluntary, he is using “voluntary” in a purely descriptive way to refer to the subject’s actual state of mind, irrespective of what the subject should have known. This reply faces several problems, however. First, as the archer cases show, the voluntariness of other-​regarding impositions of risk does seem to depend on the agent’s negligence, or on what the agent should have known. To be sure, the first archer’s state of mind—​the fact that he is ignorant of the child’s presence and does not intend to injure anyone—​may show that he has not voluntarily injured the child. But it would be implausible to claim that the first archer has not voluntarily imposed the risk on the grounds that he would not have shot the arrow if he had known of the child’s presence; one does not need to know that one’s behavior will harm others in order to voluntarily expose them to a risk of harm. To defend the suggested reply, the anti-​paternalist critic would thus need to argue either that voluntariness in the self-​regarding sphere is importantly different from voluntariness in the other-​regarding sphere, or else that my analysis of the archer cases is mistaken. Second, the imagined reply will succeed only if the anti-​paternalist eventually specifies which states of mind undermine the voluntariness of an assumption of risk. As the case of Willfully Ignorant Patient shows, however, the anti-​paternalist probably does not want to claim that ignorance of relevant information always undermines the voluntariness of an assumption of risk. And if it is suggested that ignorance undermines such voluntariness only under

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certain conditions—​for instance, only if the subject prefers ignorance for its own sake—​we may merely be led back to the proposals considered and rejected earlier. The argument of this section can be summarized as a dilemma. Defenders of the ignorance exception might hold that risky self-​regarding choices are protected by autonomy so long as the decision-​maker has voluntarily assumed the risks. But this line of argument seems to rule out intervention on behalf of Reckless Hiker (or at least to imply that intervention in this case is of the objectionable, hard variety). Anti-​paternalists may respond by claiming that Reckless Hiker has not voluntarily chosen to kill himself and, further, that risky self-​regarding choices are protected by autonomy only if any harmful outcomes will have been voluntarily brought about by the decision-​maker. This suggestion, however, should be of little comfort to defenders of the ignorance exception. Many informed and competent agents do not voluntarily bring about the harmful states of affairs that result from their imprudent choices; for instance, smokers who contract lung cancer have not voluntarily chosen to kill themselves. Indeed, the distinction between an agent’s voluntarily bringing about a state of affairs and an agent’s voluntarily assuming a risk is sometimes neglected in Feinberg’s canonical discussion. Feinberg’s stated goal is to describe the conditions under which “assumptions of risk” are voluntary.47 And he assesses some cases in these terms; for instance, he claims that “[m]‌any perfectly normal rational persons voluntarily choose to run [the health-​related] risks for whatever pleasure they find in smoking.”48 In assessing other cases, however, Feinberg instead considers whether a person will voluntarily bring about the harmful consequences of his self-​ regarding behavior. This is evident in the discussion of the winged flyer example, cited earlier. It is also evident in Feinberg’s discussion of a variant on Mill’s case, in which the bridge-​crosser has been warned but stubbornly insists “that he will not be persuaded of the bridge’s unsafe condition until it collapses under him.”49 Feinberg supports intervention in this case, claiming that while the bridge-​crosser is “willful and perverse,” he has not “voluntarily [chosen] to fall to the rocks and injure or kill himself.”50 This is true. But the claim that such a bridge-​crosser has not voluntarily chosen to kill himself is importantly different from the more dubious claim that

47. Feinberg (1986: 104–​106). 48. Feinberg (1986: 134). By “rational” here, Feinberg means “competent,” not “fully prudent.” 49. Feinberg (1986: 131). 50. Feinberg (1986: 131).

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such a bridge-​crosser has not voluntarily assumed the risk of the bridge’s collapse. The shift between these two ways of assessing voluntariness may go unnoticed because it yields judgments that anti-​paternalists find attractive, and thus there is less incentive to subject it to critical scrutiny. The conviction that there is a morally relevant difference between soft paternalistic intervention on behalf of ill-​informed people and hard paternalistic intervention on behalf of merely imprudent people is deeply entrenched in current debates over paternalism. Since our discussion of this view has ranged over many cases and distinctions, it is worth returning, by way of summary, to the problem with which we began. Consider three variants on Mill’s bridge example: (i) the bridge-​crosser is unaware of the risks and is in no way responsible for his ignorance; (ii) the bridge-​crosser is unaware of the risks but is responsible for his ignorance, as in Reckless Hiker; and (iii) the bridge-​crosser is fully aware of the risks but decides to cross anyway. The question is where in the progression of cases we should draw a moral line, if a moral line is to be drawn at all. The traditional soft paternalistic view, embodied by the ignorance exception, would draw a line between cases (ii) and (iii), on the grounds that the bridge-​crosser is ill-​informed in the first two cases, but not in the third. As I have argued, however, the attempt to draw a line in this place is likely to have other implications that few anti-​paternalists would accept. Further, as we have just seen, there seems to be a strong argument that if a line is to be drawn, it should instead be drawn between (i) and (ii). Yet few soft paternalists have been willing to accept this result. Indeed, such a result may be no more palatable than the pro-​paternalist alternative, which holds that there are no morally relevant differences among cases (i)  to (iii), assuming, at least, that comparable interests are served by intervention in each case. As I  noted at the outset, the ignorance exception is typically thought to be a component of the broader hard/​soft distinction. This distinction is also commonly thought to imply that impaired or incompetent choices are not protected by autonomy. Anti-​paternalists might thus hope that reflection on cases involving impaired decision-​makers will reveal a more promising strategy for defending the ignorance exception. Whether this optimism is warranted depends on whether impairment is relevant in the way that most soft paternalists believe. I now turn to this issue.

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CHAPTER 7

Soft Paternalism II The Impairment Exception

A

s we have seen, many anti-​paternalists endorse a distinction between hard paternalism, which supposedly violates autonomy, and soft paternalism, which does not. The ignorance exception, examined in the preceding chapter, holds that ill-​informed self-​regarding choices are not protected by autonomy. The impairment exception, which I shall consider in this chapter, holds that informed but substantially impaired self-​regarding choices are not protected by autonomy. The impairment exception seems to accommodate many widely shared intuitions. Suppose, for instance, that someone is about to commit suicide. Is it permissible to stop her? Many anti-​paternalists would say that it is permissible to stop her in order to assess her mental state. If her choice is a product of mental illness, most would agree that intervention is probably soft paternalistic and thus permissible. Likewise, if the person is temporarily depressed or in the grip of a particularly powerful emotion—​because she has just experienced some personal trauma, say—​it would presumably be permissible to intervene until her emotional state has returned to normal. By contrast, if inquiry were to reveal that the person is not subject to these or similar conditions, but instead acts from the sober conviction that her life is not worth living anymore, then many anti-​paternalists would hold that further intervention is unjustified, even if it would be in her best interest. More moderate anti-​ paternalists may concede that intervention is justified given what is at stake, but they would nonetheless classify it as hard paternalism. In order to defend the view embodied by such judgments, proponents of the impairment exception must do two things. First, they must explain

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what, precisely, distinguishes impaired choices from unimpaired choices. (Since we have already examined the case of ignorance in the previous chapter, the focus here will be on the distinction between impaired and unimpaired choices that are nonetheless adequately informed by knowledge of the relevant circumstances.) Second, having explained the distinction, proponents of the impairment exception must show that it is morally relevant: in particular, they must show that it is easier to justify intervention in impaired self-​harmful choices than in otherwise similar unimpaired self-​ harmful choices. I will argue that the prospects for successfully carrying out either task are bleak. If so, I conclude, we have good reason to eschew the hard/​soft distinction and the many anti-​paternalist views that rely on it. I begin by describing some of the conditions that are commonly thought to impair decision-​making and consequently to justify soft paternalism (section 7.1). I then challenge Feinberg’s influential account of impairment by arguing that there is a perfectly coherent sense in which all imprudent choices are impaired (section 7.2). Moreover, even if this problem could be avoided, I argue that Feinberg’s account appeals to an implausible conception of voluntariness (section 7.3). In the second half of the chapter, I consider and reject several attempts to draw the hard/​soft distinction by appeal to the notion of instrumental rationality (sections 7.4–​7.5). Before we proceed to the arguments, it is worth making two brief preliminary points. First, the following discussion will be confined to paternalism among adults. This is partly because proponents of the impairment exception disagree about whether, and how, it applies to children and others judged to be globally or generally incompetent. Some philosophers hold that immaturity is just another form of impairment, so that the sorts of considerations that justify the application of the impairment exception to adults also justify the (soft) paternalistic treatment of children.1 Others disagree: since a child’s immature capacities are the only ones she has, it might be misleading to construe immaturity as a threat to the child’s normal capacities.2 Indeed, some even claim that benevolent intervention on behalf of children is not appropriately described as “paternalistic” at all.3 Though I think this latter suggestion goes too far, I want to avoid the

1. Feinberg (1986: 325–​32). This also appears to have been Mill’s view (1859: V.5, 294). 2. VanDeVeer (1986: 87 and chap. 7). Kleinig (1983: 67–​69, 147–​50) has argued that paternalism on behalf of competent adults is sometimes permissible when it preserves or promotes their “integrity,” while intervention on behalf of (young) children should be designed to develop their “autarchy,” or ability to be self-​governing. 3. See Morris (1981: 140).

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complications posed by paternalism toward children and others judged generally incompetent.4 Instead, I will focus on the sorts of widely recognized impairments that, from time to time, affect many otherwise competent adults. A second caveat: although I will speak both of impaired decisions and impaired decision-​makers, an impairing condition may influence some choices but not others. On the soft paternalistic view, then, a person who is subject to an impairment may still be capable of voluntarily making some choices for herself.

7.1 IMPAIRMENT: EXAMPLES

Proponents of the hard/​ soft distinction have described a number of different conditions that can temporarily distort an agent’s decision-​ making capacities and thereby render intervention more easily justified. Some of these conditions include “powerful passions” and emotional distress.5 Imagine, for instance, that Jackie returns home from work to find that her spouse has been having an affair. Seized by acute anger and sadness, Jackie gets on her motorcycle and “blows off steam” by riding dangerously fast on a private road that runs through her property. Under these circumstances, there may be good reason to believe that Jackie’s risky choice is influenced by her present emotional state and does not reflect her considered judgment. If so, many anti-​paternalists would hold that her choice is not protected by autonomy and that others are permitted to intervene (by confiscating her keys, say), at least until she has calmed down. Many anti-​paternalists have also argued that severe or distracting pain can sometimes distort decision-​making.6 Suppose, for instance, that Paula has been severely burned in an industrial accident and will die without medical treatment. Because she is in such excruciating pain, she refuses treatment and tells the emergency medical technicians that she prefers to die. If there is good reason to believe that Paula’s suffering is only temporary, many anti-​paternalists would hold that it is permissible to treat Paula over her refusal. If she continues to refuse treatment once the pain has

4. For discussion of some problems involving the paternalistic treatment of people with mild cognitive disabilities, see Wikler (1979). 5. For this and several of the conditions described in what follows, see diagram 20-​5 in Feinberg (1986: 115). 6. See Kleinig (2010: 14) and Beauchamp (2009: 82). For sensitive discussion of a case resembling the one I describe, see “Confronting Death: Who Chooses, Who Controls? A Dialogue between Dax Cowart and Robert Burt” (1998).

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worn off, however, then most would hold that further treatment violates her autonomy. Less dramatic conditions have also been claimed to impair decision-​ making in a way that compromises autonomy. Our deliberative capacities are sometimes affected by fatigue, hunger, and garden-​variety stress. Even when others do not coerce us with threats, we might be susceptible to pressure from others that moves us to act without sufficient thought or deliberation.7 And we sometimes choose impulsively, without vividly imagining the possible outcomes of our behavior. When these sorts of failures result in choices that have significantly harmful self-​regarding consequences, many would argue that intervention can be justified on soft paternalistic grounds. Defenders of the impairment exception thus appear to distinguish between defects in the deliberative process, on the one hand, and defects in the deliberative product, on the other.8 Emotional excitement, depression, distracting pain, fatigue, and other conditions covered by the impairment exception are commonly thought to distort the process of decision-​making. Even if the process by which someone reaches a decision is not distorted in any of the ways so described, however, the decision itself might nonetheless be imprudent or unreasonable. Intervention in such a choice would be of the hard, presumptively objectionable, variety. Or so claim most soft paternalists. Even if we agree that conditions such as emotional distress, distracting pain, impulsivity, and so forth can impair decision-​making, it seems fair to ask precisely why and how they do so. Here we can distinguish between at least two proposals.9 Some maintain that such conditions are relevant to the extent that they compromise the voluntariness of choice. I will again take Joel Feinberg as the chief representative of this strategy.10 Others argue that conditions such as those I have listed impair or distort decision-​ making to the extent that they prevent decision-​makers from fulfilling their own desires.11 I  will focus largely on the first view in the next two sections, before turning to the second.

7. Feinberg (1986: 157–​58). 8.  For this distinction, see Moles (2015:  647), Cholbi (2013:  123), and Soble (1982: 338). 9. Scoccia (2013a: 78–​80). 10.  Feinberg (1986:  esp. chap.  20). See also Kleinig (2010:  13–​17) and Beauchamp (2009: 82–​83). 11. This position has been defended in a series of articles by Scoccia (2013a: 79–​84; 2008: 357–​60; 1990: 318–​34). Similar views are defended in Cholbi (2013: 118–​21) and VanDeVeer (1986: esp. 75–​81).

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[ 174 ]  In Our Best Interest 7.2 IMPAIRMENT AND IMPRUDENCE

The impairment exception is viable only if some imprudent choices are unimpaired; otherwise, it will turn out that no imprudent choices are protected by autonomy. As I shall understand it here, a choice is imprudent if it meets either of the following conditions: (a) the choice adversely affects the decision-​maker’s interests on balance and has no significant beneficial effect on the interests of others, or (b) the choice is likely to sacrifice the decision-​maker’s comparatively important interests to the less important interests of others, when the agent is not morally required to make such a sacrifice. Although most of what I shall say applies to choices of both types, for simplicity I focus on self-​regarding choices of type (a). In assessing the prudence of a choice, we should take an ex ante rather than an ex post view of the consequences. It would be imprudent for a person to bet her life savings in a game of roulette, even if, as luck would have it, she wins. Such a choice is imprudent in virtue of its expected consequences. The central problem for the impairment exception is that all choice-​ worsening conditions seem to constitute impairments, and all imprudent choices seem to be affected by choice-​worsening conditions. Consider some analogies. Suppose that a university implements the following policy: students may not appeal grades that they believe merely to be inappropriate, but they may appeal grades that they believe to result from an instructor’s impaired assessment. Such a policy makes little sense. No student should concede that while her grade is inappropriate, the instructor responsible for the grade might yet have exercised unclouded judgment. If the instructor’s judgment was unobjectionable, the assessment issued by her judgment must be unobjectionable, too.12 Likewise, to take another example, if a chess player makes a poor move in the middle of a game, it seems that there must be some deliberative defect that explains her error.

12. One might argue that the instructor’s judgment is not impaired if she assigns inappropriate grades because she accurately applies an inappropriate set of criteria. Yet it seems that a decision-​maker can be impaired by her reliance on criteria that yield poor results. Indeed, it is difficult to distinguish cases in which someone accurately applies inappropriate criteria from cases in which someone exercises impaired judgment. For example, consider an instructor who decides (while sober) that she will grade a set of papers while intoxicated. If she follows through on this plan, should we say that she has accurately applied an inappropriate criterion (namely, “while intoxicated, assign each paper whatever grade you think it deserves”)? Or should we instead say that the instructor has inaccurately applied criteria and exercised impaired judgment (since the grades were a result of her intoxication)? It seems to me that we could describe the instructor in such a case both as accurately applying inappropriate criteria and as exercising impaired judgment.

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She may, for example, fail to recognize an opponent’s possible move, or fail to think through how her choice will affect the game in several additional turns. But there must have been some such impairment, or else she would not have made the poor choice. More generally, when a person performs poorly on a decision-​making task, there seems to be a clear sense in which she has exercised impaired judgment. Since a person who chooses imprudently has, to at least some extent, performed the decision-​making task poorly, it would follow that all imprudent choices are impaired. To see this point more clearly, it will be useful to turn again to Feinberg’s characterization of voluntariness. Feinberg makes the following observation about the voluntariness of assumptions of risk: The voluntariness of the assumption of risk is reduced . . . to the extent that the speculator does not really know the risk he is taking or does not understand how and why it is a risk, or does not fully appreciate the seriousness of the risk he may, in some merely intellectual way, “understand.”13

Feinberg here describes two ways in which a choice may be rendered nonvoluntary: the decision-​maker may not even know the risks, or she may not appreciate the seriousness of risks she does know.14 Feinberg emphasizes these two basic forms of deliberative defect elsewhere. He claims that a choice may be nonvoluntary if the chooser “ ‘knows’ the risk” but does not “fully understand it and take it to heart.”15 Voluntariness is compromised, he argues, “when [a decision-​maker’s] undeveloped or impaired condition makes it impossible for him to form the [beliefs relevant to his decision], or to avoid mistaken beliefs, or to attend carefully to the beliefs he already has, or to fully comprehend their significance.”16 In sum, Feinberg seems to think that so long as we confine our attention to fully informed decision-​makers, impairments such as emotional distress, fatigue, and so forth are relevant insofar as they provide evidence that the decision-​maker does not “appreciate,” “take to heart,” or “comprehend the significance of” known risks.

13. Feinberg (1986: 278). 14.  For similar claims about the importance of “appreciating” one’s options or the consequences of one’s behavior, see Le Grand and New (2015:  119), Savulescu (1994: 194–​95), Kleinig (1983: 68), and Dworkin (1971: 32–​33). Garren likewise claims that J.S. Mill permitted paternalism on behalf of generally competent decision-​makers who do not “know or appreciate” that they are likely to harm themselves (2007: 52, emphasis added). 15. Feinberg (1986: 121, emphasis added). 16. Feinberg (1986: 317, emphasis added).

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Yet it appears that whenever someone makes an imprudent choice, she has failed to fully appreciate the consequences of her behavior or fully grasp the significance of the relevant risks.17 Suppose, for instance, that Gina, a generally competent adult, decides to take up smoking, despite being fully informed of the associated risks. (She knows, for example, how much shorter the average smoker’s life is compared to the average nonsmoker’s life, and she knows roughly how much more likely she is to develop various illnesses as a result of her smoking habit.) Assume, at least for the sake of argument, that Gina’s choice to smoke is imprudent. If so, it would appear that Gina must fail to fully appreciate or take to heart the sorts of considerations just described, in much the same way that, say, an instructor who assigns an inappropriate grade to a student’s work must fail to fully appreciate its merits and demerits. Consider why Gina and other smokers might be motivated to engage in such risky behavior (on the assumption, again, that such behavior is imprudent). One possibility is that Gina groundlessly regards herself as less likely than the typical smoker to develop a smoking-​related illness. Although she believes that smoking often causes lung cancer, she also believes that this is not likely (or is less likely) to happen to her. Indeed, research on cognitive biases suggests that people often believe themselves to be “personally immune to hazards,” or less likely than average to suffer bad consequences from their risky behavior (a form of optimism bias).18 Those who are subject to this bias would seem to be impaired, or even to have mistaken beliefs about the likelihood that they personally will be harmed. Other sources of imprudence may also have their roots in the sorts of heuristics and biases that have been explored extensively by psychologists.19 In deciding what to do on a particular occasion, a person may look back on similar decisions she made in the past to see how they turned out. Most people with a smoking habit have smoked numerous times before, and it is unlikely that any of these past choices has resulted in severe harm.20 Thus, it may be difficult for people to fully take to heart the risks posed by a smoking habit, especially

17. Alternatively, if she sacrifices her more important interests for the less important interests of another person, she fails to fully grasp the relative or comparative significance of the risks to herself. 18. Slovic, Fischhoff, and Lichtenstein (1982: 468). 19.  For an overview, see Kahneman, Slovic, and Tversky (1982) and Kahneman (2011). 20. Goodin (1989: 582).

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since smokers typically do not get a “taste” of the health consequences that may await them until it is too late.21 A further possibility is that Gina, our imagined smoker, recognizes the risks of smoking and applies them to herself, but discounts future harms and benefits simply in virtue of their temporal remoteness. In considering this possibility, it may be useful to distinguish between “pale” and “vivid” beliefs. Pale beliefs, while genuine, are “displayed to the mind in such a way that the individual does not fully appreciate their import.”22 To take a common example, one might know that people in remote countries are starving, and one might have a vague sense that something should be done about this. But when one actually witnesses such deprivation, the beliefs in question might become more vivid and have a corresponding effect on one’s behavior. Likewise, even if Gina believes that smoking poses significant self-​regarding risks, these beliefs might be “pale.” While Gina has a very vivid appreciation of the present pleasures of smoking, it may be difficult for her to imagine the future harms of smoking in comparably rich detail, and thus difficult for her to appreciate these harms appropriately. Such a failure of imagination seems to constitute a deliberative impairment.23 Consider one further explanation for imprudent behavior. Perhaps Gina smokes because she has values or character traits different from those of most nonsmokers. Feinberg argues that unreasonable or imprudent choices are nonetheless voluntary when they result from stable “character defects” or “preference, taste, or conviction.”24 Perhaps Gina is shortsighted not because she fails to vividly imagine the consequences of her behavior but, rather, because she has the attitude that one should “live for today” or enjoy oneself while young, come what may. Now it may be unclear just how we ought to understand this attitude. Perhaps the idea is that Gina regards the present pleasures of smoking as more important than the future costs. It is not clear, however, just how many smokers would claim that they regard the pleasures of smoking as more important or valuable than, say, longevity or the avoidance of lung disease. More generally, it is not clear how many people who make shortsighted choices regard their short-​term well-​being as more important than their long-​term or overall well-​being. Thus, if the anti-​paternalist were to make her stand only when it comes

21. The view that voluntariness is compromised by cognitive biases of the sort just described is conceded, but not explicitly defended, by Glod (2013: 415), who appears to defend an otherwise hard-​nosed anti-​paternalist view. 22. Kagan (1989: 283). 23. Savulescu (1994: 196). 24. Feinberg (1986: 108–​109).

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to decision-​makers who have genuinely shortsighted values, the resulting view may protect surprisingly few shortsighted choices. Even if we set aside this concern, however, the deeper problem is that character defects, tastes, and convictions can impair decision-​making just as other conditions can. T. M. Scanlon observes that “some of us are better able to assess some kinds of reasons than others are, not because of lack of information or of failure to engage in ‘critical reflection,’ but because of our particular sensitivity or lack of sensitivity to considerations of the relevant kind.”25 Likewise, many imprudent choices result not from intoxication or extreme emotional excitement but instead from more garden-​variety failures to remain appropriately sensitive to, or to fully appreciate, the prudential reasons that one has. And as we have seen, Feinberg claims that failures of appreciation result in compromised voluntariness. If someone makes an imprudent decision to smoke because she is unapologetically shortsighted, her choice may result from her character defects or genuine tastes. But these character defects or tastes result in an imprudent decision precisely because they impair deliberation by preventing the decision-​ maker from fully appreciating relevant considerations. Once again, consider some analogies. Imagine that a chess player habitually and unwisely moves her queen very early in the game, but that this habit is associated with an “irrational trait” or genuine taste of the player.26 If this habit frequently causes the player to lose, we might consider it to impair her chess-​playing. (“She is impaired by her eagerness to move the queen,” the chess player’s coach might plausibly say.) As a second analogy, consider Derek Parfit’s example of Future Tuesday Indifference:  a fully informed decision-​maker is indifferent to what happens to her on future Tuesdays, so that she prefers hours of extreme agony next Tuesday to a slight headache later today.27 Of course, such an attitude is so bizarre that we may have good reason to suspect that the decision-​maker suffers from a mental illness. But suppose that, after extremely thorough investigation, we find that she suffers from no such illness.28 Instead, suppose that the decision-​maker values her non-​future-​Tuesday experiences more than she values her future-​Tuesday experiences. In this case, however unlikely it may be, it still seems reasonable to conclude that the decision-​maker is

25. Scanlon (1998: 57). 26. The quoted phrase is from Arneson (1980: 474). 27. Parfit (1984: 124). 28. Most anti-​paternalists argue that while an odd choice may provide (defeasible) evidence that the decision-​maker is mentally ill, such a choice cannot show that the decision-​maker must be mentally ill. See Feinberg (1986: 133).

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impaired by her eccentric attitude toward time. Similarly, if Gina simply does not care much about the future risks of smoking (“live for today,” she says), it seems plausible to claim that she is impaired by her temporally myopic attitude. Indeed, Feinberg claims that “cognitive disabilities” include “failures to care about a belief’s grounding and implications.”29 Someone who fails to care about the future seemingly fails to care about the “implications” of her beliefs; it does not matter to her that her choice will harm her in the future. The central problem, in sum, is this: any explanation of a (fully informed) person’s imprudent behavior would seem to show that she fails to fully appreciate the consequences of her behavior or the risks it involves. And if a person fails to appreciate such consequences or risks, there is a straightforward sense in which her deliberation is impaired, as even Feinberg’s account seems to imply. Of course, Feinberg is unwilling to concede that all imprudent decisions result from failures of appreciation. But it is unclear how this position can be maintained, especially since poor choices in other contexts do seem to result from failures of appreciation.30 Though I  have so far focused on Feinberg’s voluntariness-​based view, a similar problem plagues other attempts to clarify the soft paternalistic notion of impairment. John Hodson argues that paternalistic intervention is justified if, and only if, there is good evidence that the target’s choice is “encumbered” and that the target would consent to the intervention if she were unencumbered. Hodson defines “encumbered decisions” as those “made in circumstances which are known to affect decision-​making in such a way that the person making the decisions sometimes comes to believe that the decisions were mistaken or unfortunate.”31 Yet general imprudence and shortsightedness, no less than emotional distress and fatigue, lead people to make choices that they “often come to regret.”32 When those who choose imprudently must face the harmful consequences of their choices, they often wish they had chosen differently. Consider two possible objections to the argument I  have advanced. First, someone might argue that mere imprudence and shortsightedness, unlike emotional distress and fatigue, are not “states of mind under

29. Feinberg (1986: 317–​18, emphasis in original). 30. Brock (1988: 556–​61) argues, in a somewhat similar vein, that Feinberg’s view appears to have many of the same implications as a consequentialist view combined with a “corrected preference” theory of the good. The argument I have given, however, focuses on the notion of impairment and does not endorse any particular theory of the good. 31. Hodson (1977: 66). 32. For the quoted passage, see Hodson (1977: 66).

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which actions may be performed or attempted.”33 To determine whether someone’s choice has been influenced by a state of mind such as emotional distress, we need to know whether this condition affected the process of deliberation leading to her choice. By contrast, one might claim, whether a person has behaved imprudently depends on the content of her choice or on what she has chosen, not on the state of mind she was in when she made this choice. To classify a person’s choice as impaired, the objection goes, one must identify a state of mind that distorts her deliberation, and one can classify a choice as imprudent without identifying any such state. The foregoing discussion, however, suggests that it is difficult to distinguish in this way between defects in the deliberative process and defects in the deliberative product. It seems that whenever someone makes an imprudent choice, there has been a defect in the process that led her to this choice: at the very least, such a person has failed to weigh possible outcomes in proportion to their likely effects on her interests. This failure to appropriately weigh or appreciate outcomes is a defect in the deliberative process, in much the same way that the failure to attend to relevant information is. Of course, in any given case, we may be unsure of the precise psychological mechanism that explains why someone has failed to appreciate the consequences of her behavior, just as we might be unsure of the precise mechanism that explains why someone has failed to attend to relevant information. But this sort of uncertainty would not show that such a person’s decision-​making is unimpaired. Turning now to a second soft paternalistic rejoinder, a critic might argue that I have so far neglected a crucial component of some soft paternalistic views. As we saw in section 6.1, Feinberg concedes that very few (if any) choices are fully voluntary or completely unimpaired. On his view, a choice is protected from intervention so long as it is “voluntary enough,” where this threshold depends on the nature of the choice—​for instance, on how likely it is to cause self-​harm, on how severe this harm would be, and on how irrevocable the harm would be.34 Such a variable standards conception of voluntariness may appear to complicate the argument I have offered. In particular, a critic might reply that I have shown only that all imprudent choices are impaired to some extent. It does not follow that all imprudent choices are impaired enough to render them nonvoluntary.

33. See Hodson (1977: 68). 34. Feinberg (1986: 117–​24).

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One potential problem for the variable standards conception of voluntariness is that it may itself be paternalistic.35 Suppose a soft paternalistic claims that someone is in such a condition or state of mind that she can voluntarily make a certain minimally harmful self-​regarding choice but cannot voluntarily make a certain extremely harmful self-​regarding choice. If the explanation for this judgment centers simply on the fact that the second choice is more harmful, so that an assessment of the choice’s harmfulness enters into an assessment of its voluntariness, we might worry that (hard) paternalism has been allowed in through the back door. The variable standards conception, on this view, does not completely avoid paternalism, but instead represents a compromise between the anti-​paternalist’s emphasis on freedom and the paternalist’s emphasis on the avoidance of harm. Though I have considerable sympathy for this line of argument, I will not pursue it further.36 For present purposes, the important point is that the argument I have advanced appears to jeopardize the variable standards conception of voluntariness. This conception requires, roughly, that more imprudent choices must meet a higher standard of voluntariness, and thus be less affected by deliberative impairments, if they are to be protected by autonomy. This demand makes little sense if all choice-​worsening conditions constitute impairments, so that all imprudent choices are impaired. The variable standards conception presupposes that an assessment of the extent to which a decision-​maker is impaired is independent of an assessment of the extent to which her choice is imprudent. But this sort of independence is precisely what is now in question. An example will help to highlight the concern here. Suppose that Sara is deciding whether to purchase health insurance or a new car. She is able to afford the following alternatives, ranked (let us suppose) from most prudent to least prudent: (a) keep her current car and purchase a health plan offering good coverage; (b) buy a moderately priced new car and purchase an inferior health plan that fails to cover some conditions; or (c) buy 35. For this point, see Le Grand and New (2015: 122), Grill (2010: 11), Buchanan and Brock (1990: 41–​47), and Brock (1988: 562). Feinberg (1986: 119) denies that the variable standards conception involves any compromise with (hard) paternalism. 36.  My suspicion, which I  will not defend at length here, is that Feinberg’s variable standards conception of voluntariness probably is paternalistic in the way just described, but that a closely related view is not. Instead of requiring that more harmful choices meet a higher standard of voluntariness, we may require that when greater harm is at stake, there must be greater evidence that the decision-​maker meets a fixed standard of voluntariness. For related discussion of this sort of view, see DeMarco (2002). Such a view may not give Feinberg everything he wants, however, as I argue in Hanna (2018: 26–​27).

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a very expensive sports car and forgo health insurance entirely. Set aside the practical question of how the law might deal with those who would choose imprudently in this sort of case. Consider instead what an imprudent decision would imply about Sara’s level of impairment. Suppose that she prefers (b) and that she meets the standard of voluntariness required to make this choice. According to the variable standards conception, it is at least possible that Sara does not meet the higher standard required to voluntarily choose the extremely imprudent (c). In this case, a defender of the variable standards conception would claim that Sara could voluntarily choose (c)  only if she were less impaired than she actually is and, moreover, that other decision-​makers are capable of voluntarily choosing (c) only if they are less impaired than Sara is. For reasons we have already seen, however, deliberation leading to a choice in favor of (c) would ordinarily be at least as impaired as deliberation leading to a choice in favor of (b), since (c) is a worse choice than (b).37 To fail to see that (a) is superior to (b), one’s deliberative faculties must malfunction in some way; to fail to see that (a) and (b) are superior to (c), there must be an even more severe defect. The variable standards conception of voluntariness can succeed only if the notion of impairment can be divorced from that of imprudence.

7.3 IMPAIRMENT AND VOLUNTARINESS

As I  noted at the beginning of this chapter, an adequate defense of the impairment exception must do two things. First, it must explain how impaired choices differ from unimpaired choices in a way that yields the soft paternalist’s desired verdicts about particular cases. Second, it must explain why impaired choices are not protected by autonomy. I have so far been focusing on the first issue. I  now want to consider how Feinberg’s voluntariness-​based view fares with respect to the second, in part because doing so may help to reveal what an adequate defense of the impairment exception would have to look like.

37. There may be certain exceptions or qualifications to this claim. Consider a case in which Sara draws straws in order to determine which option to go with and ends up drawing in favor of (b). Contrast a case in which Sara, unsure of which option is best, asks a prudent friend who ordinarily provides very good guidance but this time recommends that she choose (c). Perhaps the latter choice is less impaired than the former, because Sara employs a generally reliable (but fallible) strategy in the latter case. This complication does not, however, affect my central contention that the argument I have offered spells trouble for the variable standards conception of voluntariness.

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As we have seen, Feinberg claims that substantially impaired choices, like ill-​informed choices, are often nonvoluntary. Nonvoluntary choices, Feinberg argues, may be “as alien to [the decision-​maker] as the choices of someone else.”38 It is from this latter claim, I would suggest, that views such as Feinberg’s get their strong anti-​paternalist credentials. If a self-​ regarding choice cannot properly be credited to a person, then intervention does not really override her choices, or impose on her, or violate her autonomy in any sense that could be thought problematic. Moreover, it seems clear that some conditions—​such as hypnosis, sleepwalking, certain forms of brainwashing, and (at least nonculpable) ignorance—​result in behavior that cannot properly be attributed to an agent’s will. These conditions, however, seem relevantly unlike emotional distress and many other impairments commonly thought to justify soft paternalism. Unlike victims of hypnosis and brainwashing, decision-​makers who are fatigued, or depressed, or under emotional distress are not (at least not necessarily) subject to manipulation by others. Moreover, such decision-​makers are importantly unlike ill-​informed decision-​makers. The person who sprinkles poison in her coffee, mistakenly believing it to be sugar, thereby satisfies none of her (basic or noninstrumental) desires. By contrast, Jackie, the emotionally distressed and reckless motorcyclist of our earlier example, cannot honestly claim that she does not really intend to ride her motorcycle, nor can she claim that doing so satisfies none of her desires. Instead, her emotional distress induces in her the desire to ride her motorcycle at dangerously fast speeds. There are at least two further respects in which emotional distress and other commonly recognized impairments are unlike hypnosis, nonculpable ignorance, and related conditions that uncontroversially undermine voluntariness. First, hypnosis and nonculpable ignorance generally undermine the voluntariness of both self-​regarding and other-​regarding behavior. We would not blame a hypnotized or unavoidably ignorant person for behavior that harms an innocent victim.39 By contrast, we typically do hold emotionally distressed decision-​makers responsible for the harm they cause others. If Jackie the motorcyclist chooses to ride dangerously fast on a public road and injures someone else, we would blame her and likely punish her, even if her behavior is prompted by rather substantial emotional distress.40 To be 38. Feinberg (1986: 12). 39. I assume that the person did not voluntarily submit to hypnosis. 40.  Of course, there may be cases in which emotional distress is so severe that it constitutes or results in “temporary insanity.” Yet most anti-​paternalists accept intervention in self-​regarding choices that do not seem to meet the stringent standards required for a temporary insanity defense. Most seem to hold, for example, that a suicide

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sure, we may regard an emotionally distressed decision-​maker as somewhat less culpable than someone who makes a similar choice while calm. But we do not, except in perhaps the most extreme cases, hold that emotional distress cancels the voluntariness of harmful other-​regarding behavior. In response to this point, a critic might argue that conditions sufficient to undermine the voluntariness of harmful self-​regarding behavior may not undermine the voluntariness of equally harmful other-​regarding behavior. It is not convincing for the critic merely to assert this asymmetry, however. Once it is conceded that a certain type of emotional distress would not undermine the voluntariness of a harmful other-​regarding choice, to claim that such distress would undermine the voluntariness of an equally harmful self-​regarding choice is to assume what needs to be shown. And on the face of it, it is far from clear how one could argue for the proposed asymmetry. Indeed, Heidi Hurd has cautioned that we risk “smuggling in condescending or paternalistic assumptions” if we think that the requirements for voluntary self-​regarding choice are significantly more stringent than the requirements for voluntary other-​regarding choice.41 Even if we focus on purely self-​regarding behavior, however, there is a second important difference between conditions such as hypnosis and nonculpable ignorance, on the one hand, and impairments such as emotional distress, on the other. It seems appropriate for decision-​makers to feel responsible for, or to reproach themselves for, imprudent choices made while under emotional distress (even substantial emotional distress).42 After we make such choices, we sometimes believe that we should have been able to overcome the powerful emotion, and we sometimes regard ourselves as responsible for our failures to do so. For example, if Jackie is injured during her reckless ride, she may say that she has no one to blame but herself—​and of course this implies that she does have herself to blame. By contrast, people do not ordinarily reproach themselves for self-​harmful behavior that results from posthypnotic suggestion or unavoidable ignorance. A person may in some sense regret such behavior, but it seems inappropriate for her to feel responsible for it in the way that we typically feel responsible for our deliberately chosen behavior. For instance, it would be inappropriate for the injured motorcyclist to say that she has no one to blame but herself if her reckless ride had occurred during a bout of

attempt can be rendered nonvoluntary by a level of emotional distress that most of us would regard as insufficient to furnish an insanity defense to homicide. 41. Hurd (1996: 145). 42. A similar point is suggested in Grill (2015b: 699–​700).

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(unpredictable) sleepwalking, or if she were injured as a result of a mechanical defect about which she could not have known. Our attitudes toward our own conduct indicate that we often regard ourselves as responsible for self-​regarding choices impaired by conditions such as substantial emotional distress, fatigue, distracting pain, and so forth. Since defenders of Feinberg’s voluntariness-​based view believe that substantially impaired choices are “foreign” to the agent, it appears that they ought to conclude that such attitudes are simply misplaced.43 Given that these attitudes are pervasive and seemingly appropriate, this conclusion is unattractive.44

7.4 THE DESIRE-​B ASED ACCOUNT: IMPLICATIONS

So far, I have argued, first, that there is a clear sense in which all imprudent choices are impaired and, second, that it is doubtful that the impairment exception can be defended by appeal to the notion of voluntariness. A soft paternalistic critic, however, might hope that both problems can be avoided by a suitable conception of impairment. Such a conception would show that emotional distress, intoxication, distracting pain, and similar conditions share a feature, other than their tendency to result in imprudent decision-​making, in virtue of which they count as impairments. A suitable conception of impairment may also be able to explain why impaired choices are not protected by autonomy, without appealing to Feinberg’s problematic account of voluntariness. One apparently promising conception of impairment appeals to the notion of instrumental rationality. A decision-​maker is instrumentally rational if she takes the most efficient means to her own ends. As Danny Scoccia characterizes instrumental rationality, “a choice is rational if it is likely (in light of what the chooser does or can know at the time he makes it) to maximize (within the bounds permitted by his moral principles) the satisfaction of his presently held desires.”45 An instrumentally irrational choice is thus defective even by the decision-​maker’s own lights.

43. Feinberg (1986: 12). 44.  The argument just given may recall Strawson’s (1962) treatment of reactive attitudes. Unlike Strawson, I am not discussing moral reactive attitudes (such as moral blame or indignation), since there may be no moral obligations to oneself. Nonetheless, holding oneself responsible for imprudent conduct may involve self-​regarding reactive attitudes of a certain nonmoral sort. 45. Scoccia (1990: 320, emphasis added). Once again, the desires that are relevant here would include only the person’s basic or noninstrumental desires.

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Some philosophers would conclude that such choices are not protected by autonomy.46 Scoccia takes a slightly different view. He notes that people sometimes have strong desires to make their own decisions, even if these decisions are instrumentally irrational. Consequently, Scoccia claims that paternalistic intervention is soft if, and only if, the target would consent to the intervention if she were instrumentally rational in the sense described—​that is, if she were to engage in sound means-​ends reasoning regarding her present desires.47 Call this the desire-​based account of the hard/​soft distinction. The desire-​based account appears to escape the initial problem described in section 7.2, since it seems clear that some choices are both imprudent and instrumentally rational. Prudence requires that a person display equal concern for all temporal stages of her life. Instrumental rationality does not demand such temporal neutrality, however: it demands only that a person

46. See Cholbi (2013: 118–​25) and Cohen (1986). 47.  Scoccia (2013a:  80; 2008:  356–​58; 1990:  323). While Scoccia argues that hard paternalism is sometimes permissible, he also argues that hard paternalism, unlike soft paternalism, violates autonomy. A  somewhat similar view is offered by Talbott (2010:  281). Talbott defends a view according to which it can be permissible to intervene in a person’s affairs, against her will, if it is true both (i) that this person is sufficiently likely to come to stably endorse the intervention if it takes place, and (ii) that this person is sufficiently likely to come to stably endorse the (would-​be) paternalistic intervention even if it does not take place. Talbott calls this the “future bilateral endorsement” condition (2010:  293). He offers various qualifications to the view to deal with cases in which intervention (or nonintervention) results in death, so that future endorsement is impossible (Talbott [2010:  295–​98]). Though Talbott’s view resembles Scoccia’s in some respects, it differs in that it is an attempt to clarify the conditions under which paternalistic intervention can be justified on consequentialist grounds. I have considered consequentialist arguments for and against paternalism in ­chapter 2, and I will not rehearse those arguments again here. In passing, however, it is worth noting that Talbott’s future bilateral endorsement constraint appears to face various difficulties. Here is one. Suppose that the government initiates a plan to force younger adults to save for their retirements. Suppose, moreover, that the plan forces younger adults to save more than is likely to be prudent. It might nonetheless be that, as they age, people endorse the policy, because it reduces some of the pressure to save in middle age. It might also be that, even in the absence of the policy, older people would come to wish that they had been forced to save at the higher rate when younger. In this case, however, the judgment that people make when older is not necessarily more reliable. Moreover, it seems to me that the bilateral future endorsement constraint is too strong, as in cases where a target fails to endorse some intervention only because it prevents her from experiencing, and thus fully appreciating, the disastrous consequences of her imprudent behavior. In this respect, Talbott’s future endorsement constraint resembles views that purport to justify intervention by appeal to “subsequent consent.” See Chwang (2009), Carter (1977), and Dworkin (1971: 28). Appeals to subsequent consent have been widely rejected (correctly, I  believe) by most anti-​ paternalists. See Kasachkoff (1994), Feinberg (1986: 182–​83), VanDeVeer (1986: 66–​ 70), and Husak (1981: 33–​34).

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maximally satisfy her present desires, and a person might not now care much about her future.48 Thus, if impairments are understood as impediments to instrumental rationality, some imprudent choices will be unimpaired. Indeed, for this reason, the desire-​based hard/​soft distinction appears to differ from the means-​related/​ends-​related distinction criticized in section 4.3. As we saw, proponents of the latter distinction generally favor intervention that enhances a person’s well-​being, where well-​being is understood in terms of overall desire-​fulfillment over the course of one’s life. This view, I argued, cannot be defended on the grounds that it merely corrects for failures of instrumental reasoning. But the desire-​based account of the hard/​soft distinction may appear to fare better. In order to defend the desire-​based account, one must carry out the two tasks necessary for an adequate defense of the impairment exception. First, one must show that the relevant conception of impairment is extensionally adequate, or that it carves up cases in a way that seems satisfying (to its proponents, at least). Second, one must show that the relevant conception of impairment identifies a feature that is morally relevant and apt to bear the weight that partisans of the hard/​soft distinction place on it. It is unlikely that either task can be successfully carried out, however. Let us first consider whether the desire-​based account yields implications that anti-​paternalists would find attractive. One problem in this regard is that commonly recognized impairments such as emotional distress often affect decision-​making not by preventing a person from satisfying her currently held desires but, instead, by generating (or strengthening) desires the satisfaction of which would leave her worse off, or by eliminating (or weakening) desires the satisfaction of which would leave her better off. Consider again the case of our emotionally distressed motorcyclist. As a result of her distress, Jackie develops a strong desire to ride her motorcycle recklessly. Given that this is Jackie’s strongest current desire, she is instrumentally rational in satisfying it. Emotional distress influences her desires, but it does not prevent her from maximally satisfying her current desires. Likewise, if a temporarily depressed or emotionally traumatized person’s strongest current desire is to kill herself, then her suicide attempt obviously is an appropriate means to that end, and intervention on her behalf would not promote the satisfaction of her current desires.49 Put 48. Scoccia (2013a: 84). 49. Groarke considers a case in which a person who is insane desires to take a drug in order to harm herself. He notes that “if  .  .  .  rationality means maximizing one’s preferences, then if [a person] wants to harm herself and is taking the drug to accomplish this goal, she is rational” (2002: 213). This seems right, at least if “maximizing one’s preferences” involves maximizing the fulfillment of one’s current preferences. On

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another way, temporary and severe depression can at least sometimes, if not often, influence the desires and motivations that we have without preventing us from acting to satisfy our strongest current desires. Yet cases involving temporary and severe depression are precisely the sort in which the impairment exception is supposed to permit intervention. The appeal to instrumental irrationality does not imply that all imprudent choices are impaired, but it appears to face the opposite problem: it implies that too few imprudent choices are impaired. What might be said in response to this problem? Perhaps the defender of the desire-​based account would argue that instrumental rationality is not best interpreted as focusing solely on the decision-​maker’s current desires. Instead, perhaps we should distinguish between an agent’s “valuational system” and an agent’s “motivational system.” As Gary Watson articulates this distinction, an agent’s valuational system consists of his “more or less long-​term aims and normative principles”; it is the “set of considerations which, when combined with his factual beliefs (and probability estimates), yields judgments of the form: the thing for me to do in these circumstances, all things considered, is a.”50 An agent’s motivational system, by contrast, is the “set of considerations which move him to action.”51 An agent’s motivational system does not always perfectly overlap with his valuational system. One may, for example, have a “mere desire” for something without finding it worthwhile or valuing it at all. More generally, one’s (occurrent, episodic) desire for something may not align with one’s more settled desires, which better reflect one’s values.52 A defender of the desire-​based account might suggest that a decision-​maker is instrumentally irrational, and thus impaired in the relevant sense, when her motivational system fails to match her valuational system. In such cases, the response runs, it is soft paternalistic to intervene on behalf of the decision-​maker’s valuational system.53

the other hand, if we imagine that the person is insane in a way that renders her globally incompetent, some anti-​paternalists would argue that her desires themselves are nonautonomous and thus not worthy of respect. For relevant discussion of this latter point, see Scoccia (1990: 327–​34). 50. Watson (1975: 215, emphasis added). 51. Watson (1975: 215). 52. For relevant discussion, see Kleinig (1983: 68) and VanDeVeer (1980: 635–​37). 53. The sort of response just offered may sometimes make the desire-​based account more difficult to apply. Suppose that someone sincerely professes a commitment to a certain value, but nonetheless often acts in ways that seem contrary to this commitment. Should we conclude that her settled values and desires are best reflected in her professed commitment, or rather in her actual behavior? There may also be cases in which a person’s desires and values are in flux, so that it is unclear which ought to count as settled or stable. Although such complications may sometimes pose serious

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This proposal, however, may again support a conception of soft paternalism that is too broad to satisfy most anti-​paternalists. To return to an earlier example, while the typical smoker desires to smoke (and, we can suppose, desires that others not interfere in her smoking behavior), the typical smoker also has many desires that would be thwarted by smoking-​ related illness—​the desire to live a long life, to provide emotional support to a spouse or child in old age, to complete some valued lifelong project, and the like. According to the view under discussion, we should consider how well these various desires reflect the smoker’s values. And how many smokers can honestly claim that their valuational systems—​their “long-​ term aims and normative principles”—​assign greater weight to the freedom to smoke than to an expected gain of several years of life? Although the smoker’s desire to smoke prevails in the sense that it moves the smoker to action, it is not at all clear that this desire is in line with the smoker’s valuational system (at least for most smokers). Scoccia claims that “paternalistic interference with imprudent choices will not impose any values on the chooser [and thus will count as soft] if the chooser himself strongly cares about his future well-​being.”54 Perhaps so. But since virtually all of us do care strongly about our future well-​being (even if we do not always act accordingly), it is then unclear just how much intervention would be ruled out as hard by the proposal under consideration. The more general point here is that if the desire-​ based account prioritizes one’s valuational system over one’s motivational system, it may end up protecting far fewer choices than we initially might have thought. To take one further case, suppose that Sandra is ordinarily very cautious and lives what might best be described as a “Spartan” lifestyle. After a particularly difficult week at work, however, she decides to accept her friend’s invitation to experiment with some potentially dangerous recreational drug. When she makes this decision, let us assume, she is sober, sane, and fully informed of the relevant risks. (In short, she meets any reasonable standard of voluntariness, and she is not subject to any commonly recognized soft paternalistic impairments.) Since this decision is uncharacteristic for Sandra, it might well be that intervention would best serve her settled desires and values, so that she would consent to intervention if she were instrumentally rational in the sense now at issue. Nonetheless, at least if we are sympathetic to anti-​paternalism, we may be reluctant to

practical difficulties for the application of the desire-​based account, I will leave open the possibility that they could be given an adequate theoretical resolution. 54. Scoccia (1990: 325).

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admit that this is sufficient to show that intervention is merely softly paternalistic.55 While the simple desire-​based account initially appeared to classify too few choices as impaired, a version that privileges the target’s valuational system may appear to classify too many choices as impaired. Michael Cholbi seems to recognize this problem. He argues that because instrumental irrationality of the sort we are now considering is so common, anti-​paternalists had better not concede that it always compromises autonomy.56 Instead, he argues, we should distinguish between (a) “distortions” of practical rationality, which occur when a person’s deliberation is “warped” by “cognitive defects, mental disorder, or infirmity of rationality”; and (b) mere “mistakes” of practical rationality, which occur when a person chooses irrationally even though her “deliberation, culminating in her choice of means to her end, was not irrationally shaped” by such defects.57 According to this line of argument, intervention in a person’s instrumentally irrational choice does not violate autonomy when the choice results from a “distortion,” but does violate autonomy when the choice results from a mere “mistake.” This suggestion confronts two difficulties. First, the concept of distortion appears to be little more than the concept of impairment that we have seen to be so problematic. It seems reasonable to ask, for example, whether all imprudent choices are a product of “cognitive defects” or “infirmity of rationality.” Second, the distinction between distortions and mere mistakes seems ad hoc. According to Cholbi, one reason it is permissible to correct for distortions is that in “imposing” instrumental rationality on a person, we do not impose values on her, since instrumental rationality is not a “substantive value or good.”58 If this point is correct, however, it obviously has little to do with the source of instrumental irrationality, or whether the irrationality is a product of a distortion rather than a mere mistake (assuming that there is a difference). Either instrumental rationality is a substantive value or it is not; whether it is would appear to be unrelated to what causes instrumentally irrational decision-​making in any particular instance. The distinction between mistakes and distortions is thus of little use once we have accepted that there is a morally important difference between instrumentally irrational choices and instrumentally rational choices.

55. For a similar example of this sort, see Hanna (2011a: 452). 56. Cholbi (2013: 122). 57. Cholbi (2013: 121). 58. Cholbi (2013: 124); see also Scoccia (1990: 320).

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In sum, then, if we hold that a choice is impaired in the relevant sense only if it prevents the decision-​maker from maximally satisfying her current desires, then too few choices will count as impaired. On the other hand, if we hold that a choice is impaired in the relevant sense if it fails to match the decision-​maker’s valuational system, then too many choices will count as impaired—​or, at least, too many choices will count as impaired to satisfy many opponents of pro-​paternalism. Finally, it is worth noting one further, and potentially problematic, implication of the desire-​based account:  while intervention on behalf of a person’s valuational system may usually serve her best interest, it may sometimes positively harm her. Suppose, for instance, that Bridget refuses to sacrifice some important interest of hers for the greater good of others. (Although this sacrifice would be praiseworthy, suppose that it would not be morally required.) Further suppose that Bridget, who is ordinarily quite altruistic, would make the sacrifice—​and indeed, would consent to someone’s imposing the sacrifice on her—​if she were to deliberate in an instrumentally rational way from her settled values and desires. Under these circumstances, the desire-​based account may imply that such intervention would not wrong Bridget, or at least that it would not violate her autonomy. Some proponents of the desire-​based account may be happy to accept this implication.59 Others, however, may not. They may argue that intervention wrongs Bridget, given that it is both contrary to her best interest and undertaken without her actual consent. Proponents of the desire-​based account who opt for this latter view face some potentially difficult questions. Most anti-​paternalists accept the principle Volenti non fit injuria (“to one who consents, no wrong is done”). This principle implies that if a (competent, informed) person has actually consented to some act, then it does not wrong her, regardless of whether it is in her best interest.60 If a proponent of the desire-​based account were then to argue that intervention to which a person would consent if instrumentally rational might wrong her, depending on whether it serves her best interest, we may wonder about the asymmetry: Why is the relevant form of hypothetical consent relevant only when intervention would serve the target’s best

59. Indeed, Scoccia claims that “loose paternalism,” which is undertaken to help the target better realize her conception of the good, “cannot violate the right to autonomy” on the desire-​based account (2013a: 80n15). Loose paternalism in this sense need not benefit the target. 60.  This explains why most anti-​paternalists would oppose intervention in a case in which one person harms another with the other’s consent. In this sort of case, the harm is consensual, and therefore does not constitute a wrong. For relevant discussion of the Volenti maxim, see Feinberg (1984: 115–​17).

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interest? Unless a satisfying answer can be found, it may be unclear that hypothetical consent can really justify intervention that would otherwise be impermissible—​an issue further examined in the following section.

7.5 THE DESIRE-​B ASED ACCOUNT: FURTHER PROBLEMS

As I  have noted, an adequate account of the hard/​soft distinction must do two things. First, it must yield implications that its proponents find attractive. Second, it must explain why the hard/​soft distinction is morally relevant. In the previous section, I considered the implications of the desire-​based account. I now turn to consider its theoretical rationale. Why should we think that the permissibility of intervention sometimes directly depends on whether the target would consent if she were instrumentally rational? To be sure, the fact that the target would so consent, if it is a fact, might provide some evidence that the intervention is in her best interest. But why should it be thought relevant in any more direct or robust way? In response to this question, the proponent of the desire-​ based account is likely to appeal to the value of autonomy. Perhaps it will be argued that to respect a person’s autonomy just is to respect her current (settled) desires and values.61 If the principle of respect for autonomy requires respect for a person’s current (settled) desires, then the desire-​ based account of the hard/​soft distinction may seem to be well grounded. As we have seen, however, this desire-​based conception of respect for autonomy is not the only conception of respect for autonomy. One might instead think that respect for autonomy involves respect for a person’s (voluntary) self-​regarding choices. If the principle of respect for autonomy requires respect for a person’s choices, then the desire-​based account seems difficult to defend. After all, the claim that someone would consent to intervention in her actual choice if she were instrumentally rational does not necessarily show that her actual choice is nonvoluntary. Indeed, we were initially led to the desire-​based account due to the difficulties confronting the voluntariness-​based account. And if the desire-​based account were to permit intervention only in nonvoluntary choices, then it would face many of the same challenges raised against Feinberg’s view in section 7.3. If the desire-​based account is indeed distinct from the voluntariness-​based

61. One might add that the desires in question must be autonomously formed. See Scoccia (1990: 327–​34).

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account, then it is likely to classify intervention in some voluntary choices as falling on the soft side of the hard/​soft divide. Yet those who are antecedently sympathetic to anti-​paternalism may have good reason to prefer a view on which autonomy protects (voluntary) choices, rather than desires.62 Some anti-​paternalists argue that people have rights to direct the course of their own lives. To recognize such rights, it may be thought, is to view “competent persons as arbiters of their own lives, as final authorities over the dispensation of their own efforts and time, and as proper adjudicators of their own contrary wants, and intrapersonal conflicts of interest.”63 Rights of the relevant sort, however, would seem to speak in favor of honoring a person’s actual (voluntary) choices over her current (settled) desires or her merely hypothetical choices. One who interferes in a person’s voluntary choices for the sake of that person’s current (settled) desires would appear to be acting as a partial “adjudicator” of her interests. Moreover, if one argues that we do not necessarily infringe a person’s autonomy when we override her voluntary choices on behalf of her current (settled) desires, one may find it more difficult to explain why we always infringe a person’s autonomy when we override her voluntary choices for the sake of her other interests (including, for instance, desires that she will have in the future but does not have now). Of course, one might argue that even when intervention of the latter sort serves a person’s best interest, it denies her the authority she has to make her own choices about how to live her life. Yet the same point, if sound, would seem to apply to intervention that overrides a person’s voluntary choices on behalf of the choices she would make if instrumentally rational.64 62. Grill (2015b) has argued that liberals have good reason to conclude that we ought to respect both a person’s choices and a person’s desires, with some (nonabsolute) priority given to informed and coherent desires over ill-​informed or incoherent desires. I believe that the arguments described here may apply to this view, as well. Moreover, I suspect that in arguing that (say) a person’s actual choice ought to take priority over her desires in any given case, one would likely end up appealing to considerations that, if compelling, would show that a person’s voluntary choices should generally be respected over her desires in cases of conflict. 63. VanDeVeer (1986: 60). 64.  Scoccia identifies two advantages of his desire-​based account over Feinberg’s account. First, he notes that the desire-​based account is supported by a “Kantian ‘respect persons’ principle requiring that interference be ‘justifiable’ to the person interfered with” (2013a:  80). I  have considered this sort of argument in ­chapter  4. If, on the one hand, intervention would advance a person’s admissible interests, on balance, then there is a sense in which it is justifiable to her. On the other hand, if one argues that interference is “justifiable” to someone only if it can be shown to maximize (or at least increase) the fulfillment of her current desires, then there is little reason to endorse the Kantian principle identified by Scoccia, just as there is little reason to

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In focusing on whether the target of intervention would consent if instrumentally rational, the desire-​based account appeals to what we might call hypothetical unimpaired consent. Notice that there is also a variety of hypothetical consent that supports putatively hard paternalistic intervention. I will stipulate that to invoke hypothetical prudent consent is to invoke consent that a person would give if she were choosing so as to maximize the fulfillment of her present and future desires.65 This notion of hypothetical consent would appear to support pro-​paternalism if we assume a desire-​based theory of interests. Even if we do not assume such a theory, however, the important point is that proponents of the desire-​based view we have been considering—​and, indeed, most proponents of the hard/​soft distinction—​would argue that a rationale for intervention is hard paternalistic if it appeals only to the claim that the target would consent if she were prudent in the sense just described. Defenders of the desire-​based account thus need to offer an argument against the moral relevance of hypothetical prudent consent. And an initial problem is that many objections to hypothetical prudent consent seem to impugn hypothetical unimpaired consent, as well.66 For example, one might object that to intervene because the target would consent if prudent is to impose desires or values on her that she does not now hold; perhaps she does not now care (much) about the desires or aims she will have in the future. If this is correct, however, it seems that the desire-​based account also imposes values on the target. As we have seen, the impaired target

endorse the strong constraints considered and rejected in section 4.2. Scoccia’s second argument is that Feinberg’s view classifies some interventions as soft, even though they seem to violate autonomy. As an example, he imagines someone who chooses to play Russian roulette while drunk and who also values a form of self-​reliance that “requires him to suffer the bad consequences” even of his nonvoluntary decisions (2013a:  81). Scoccia claims that such intervention would involve hard paternalism, even though it is undertaken against a nonvoluntary choice. Even if this sort of case poses a problem for Feinberg’s view, it may not take us all the way to a desire-​based account. Instead, perhaps it shows that Feinberg should support intervention only if the target’s choice is nonvoluntary and the target would consent if she were in a state of mind conducive to voluntary decision-​making. This sort of view would always classify intervention in voluntary self-​regarding choices as falling on the hard side of the hard/​soft divide. 65. Both Dworkin (1971: 29–​30) and Rawls (1971: 248–​50) invoke hypothetical consent in order to defend some paternalistic policies. It is not entirely clear whether either would embrace hypothetical prudent consent as I have characterized it. Feinberg (1986: 184–​86) is suspicious of Rawls’s treatment of paternalism, on the grounds that it may admit some hard paternalistic rationales. 66.  For objections to the moral efficacy of all forms of hypothetical consent, see Brudney (1991: 236–​40) and Thomson (1990: 187–​91). For a response to Thomson’s argument, see Kuflik (2010).

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may not now, in her impaired state, care (much) about the desires and goals served by intervention. In response to this point, proponents of the desire-​ based account may answer that intervention to which a target grants her hypothetical unimpaired consent is likely to fulfill desires that are fundamentally hers, or that characterize her at other times, when she is not impaired. But hypothetical prudent consent also takes account of desires that the target has (or will have) at other times.67 Why else might one reject the moral relevance of hypothetical prudent consent but not hypothetical unimpaired consent? Donald VanDeVeer argues that the latter notion invokes the “hypothetical consent of a particular, actual, individual,” whereas the former is a “logical construct,” since “[t]‌here is no consent given by a fully rational [or prudent] individual.”68 This remark does not seem to point to any important difference between hypothetical prudent consent and the sort of hypothetical unimpaired consent favored by VanDeVeer and others, however. If we say that the decisions a person would make if she were fully prudent are the decisions of a hypothetical (rather than an actual) person, we can just as well say that the decisions an impaired person would make if she were unimpaired or instrumentally rational are the decisions of a hypothetical person. Hypothetical prudent consent and hypothetical unimpaired consent are, after all, equally hypothetical. Perhaps VanDeVeer’s point is that his preferred notion of hypothetical consent takes account of the target’s own unique tastes, desires, and values.69 But the same is obviously true of hypothetical prudent consent. Indeed, on any plausible view of prudence, what is prudent for someone to choose or consent to will depend, to at least some extent, on her tastes, desires, values, and aims.70 This point can be extended. The 67. Perhaps the relevant notion of hypothetical prudent consent should take account not only of present and future desires, but also of some desires that one had in the past but no longer has. See Bruckner (2013). I set aside this complication for the sake of simplicity. 68.  VanDeVeer (1986:  74–​75, emphasis in original). VanDeVeer puts the point in terms of hypothetical rational consent, rather than hypothetical prudent consent, but it seems clear that his criticism is designed to apply to hypothetical prudent consent as I have characterized it. In a somewhat similar vein, Scoccia claims that “it would be dishonest to say that . . . coercion does not ‘really’ infringe [someone’s] autonomy at all because it is justifiable to a hypothetically prudent” version of that person (2013a: 84). To anticipate the argument that follows, the question then is why we should think that it is not dishonest to say that coercion does not “really” infringe someone’s autonomy because it is justifiable to a hypothetically (instrumentally) rational version of that person. 69. VanDeVeer (1986: 75); see also Kultgen (1995: 123), Woodward (1982: 75), and Hodson (1977: 67). 70. This is true even according to an “objective list” theory of well-​being. Most objective list theorists would count pleasure (or at least certain types of pleasure) as a

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soft paternalistic critic might think that hypothetical unimpaired consent, insofar as it attends to the target’s current (settled) desires and aims, pays respect to an ideal of autonomy. Yet appeals to hypothetical prudent consent also attend to a person’s current desires and aims, since what it is prudent for a person to do is likely to depend, to at least some extent, on her current desires and aims. The question, then, is not whether we ought to attend to a person’s current desires and aims in formulating an adequate notion of hypothetical consent. The question is instead whether we ought to attend exclusively to a person’s current desires and aims, to the exclusion of all other interests. It would be too quick, then, to say that hypothetical unimpaired consent attends to a person’s current desires and aims, while hypothetical prudent consent does not. Instead, these different notions of hypothetical consent attend to or respect a person’s current desires and aims in different ways, one by focusing on them to the exclusion of all other interests, and one by focusing on them alongside other interests. It is thus unclear how the desire-​based account can be defended. On the one hand, as we have seen, there is a strong case that anti-​paternalists should prioritize respect for a person’s (voluntary) choices over respect for her (current) desires. On the other hand, if one argues that intervention in a person’s voluntary self-​regarding choices can indeed be justified on the grounds that she would consent to it under some set of counterfactual conditions, then one may have little basis for arguing against some putatively hard paternalistic intervention.

7.6 SUMMARY: REJECTING THE HARD/​S OFT DISTINCTION

Since the discussion of the hard/​soft distinction has taken many twists and turns, it is worth briefly reviewing the argument of the past two chapters. Most anti-​paternalists distinguish between hard paternalism, which supposedly violates autonomy, and soft paternalism, which supposedly does not. In particular, virtually all anti-​paternalists recognize what I have called the ignorance exception, according to which ill-​informed choices are not generally protected by autonomy, and the impairment exception, according to which substantially impaired choices are not generally protected by autonomy.

good on the list, and whether something is likely to bring a person pleasure depends on particular facts about her psychology. Moreover, even if achievement is objectively valuable, this good can be realized in different ways, and what a person should try to achieve presumably depends on her tastes, inclinations, past choices, and so forth.

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I have argued, however, that there is no obvious defense of these exceptions that would make them consistent with the views of most soft paternalists. To be sure, soft paternalists seem to be on solid footing when they defend intervention in choices induced by nonculpable ignorance or very severe forms of incapacity. Yet most permit putatively soft paternalistic intervention in a much broader range of cases. As we saw in ­chapter 6, the ignorance exception confronts problems when applied to decision-​makers who are responsible for their ignorance. Most anti-​paternalists would argue that it can be objectionably paternalistic to force information on a person who does not want it. Yet it is difficult to see how they can maintain this judgment while also claiming that ignorance always compromises the autonomy or voluntariness of choice. Attempts to avoid this problem—​for instance, by narrowing the range of cases in which ignorance is claimed to cancel voluntariness—​would appear to yield implications that most anti-​ paternalists reject. Moreover, it seems clear that culpably ignorant choices are voluntary in an important sense: those who make such choices voluntarily run the risks of their behavior. The impairment exception likewise faces serious difficulties. As I have argued in this chapter, there is a straightforward sense in which all imprudent choices are impaired, since all such choices result from a failure to appreciate the possible consequences of one’s behavior. Moreover, even if this concern is set aside, it seems unlikely that appeals to the notion of voluntariness can provide adequate support for the impairment exception, at least as it is typically interpreted and applied. Some forms of impairment—​such as hypnosis or advanced dementia—​are severe enough to cancel the voluntariness of choice. But soft paternalists typically also count less severe conditions, such as temporary emotional distress, as impairments, and many choices influenced by temporary emotional distress surely appear to be voluntary. In response to these concerns, one might argue that intervention respects autonomy provided that it appropriately accounts for the target’s current values and preferences. The most promising views of this sort, however, may again have implications that few anti-​paternalists would accept. Such desire-​based accounts may also fit poorly with the ideal of autonomy that appears to undergird anti-​paternalism. I conclude, then, that we have yet to find an interpretation of the hard/​ soft distinction capable of bearing the weight that anti-​paternalists typically place on it. Of course, the anti-​paternalist might hope that a more promising interpretation can be found. Until it is, there appear to be two options. First, we could hold that it is generally (or at least often) impermissible to intervene in seriously imprudent choices, even when such choices

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are induced by conditions such as culpable ignorance and temporary emotional distress. Although such an extreme anti-​paternalist view would avoid the problems I have raised, it seems implausible. There is wide agreement, even among those who consider themselves staunch anti-​paternalists, that intervention would be permissible in many of the “soft paternalist” cases I have discussed. Second, we could hold that just as it is often permissible to intervene in imprudent choices affected by culpable ignorance or temporary distress, at least when doing so would serve the target’s interests, it is often permissible to intervene in other choices when doing so would serve comparably important interests. Not surprisingly, this is the view I prefer. There is another way to put the conclusions I  have reached. Pro-​ paternalism is sometimes rejected on the grounds that it is in tension with a plausible conception of autonomy, where “[t]‌he kernel of the idea of autonomy is the right to make choices and decisions” about one’s own life.71 Anti-​paternalists do not claim, however, that this right is always infringed by intervention in a person’s self-​regarding choices: instead, they typically claim that it is infringed by hard paternalistic intervention but not soft paternalistic intervention. To map the contours of the right in question, then, the anti-​paternalist must offer a viable account of the hard/​soft distinction. In the absence of such an account, the objection that hard paternalism always infringes autonomy would appear to be incomplete and thus inconclusive.

71. Feinberg (1986: 54).

CHAPTER 8

Libertarian Paternalism, Manipulation, and the Shaping of Preferences

I

n defending pro-​paternalism, I have often focused on the permissibility of measures that involve restrictions on liberty. This is because liberty-​limiting paternalism may seem especially likely to violate rights or to wrongly impose values on people. Acts and policies that do not restrict liberty may also raise concerns about paternalism, however. Recently, a number of philosophers, social scientists, and legal scholars—​most famously Richard Thaler and Cass Sunstein—​have defended policy measures that they classify as instances of “libertarian” paternalism.1 Defenders of libertarian paternalism observe that there are ways of influencing decision-​making that do not limit liberty but also do not quite fit the mold of ordinary persuasion. Because we are susceptible to various cognitive biases, our decision-​making is often affected by “choice architecture,” or the way in which options are structured and presented. Libertarian paternalism aims to encourage more prudent decision-​ making through the design of choice architecture. For instance, a company might increase employee participation in a retirement savings plan by making enrollment the default, so that employees must actively opt out if they do not wish to save. To take a second example, a medical practitioner may influence patient decision-​making by deliberately framing or presenting information in a way that is likely to get patients to choose more prudently.2 Proponents of

1.  Thaler and Sunstein have elaborated and defended their position in a number of books and articles. See Sunstein (2014), Thaler and Sunstein (2008; 2003), and Sunstein and Thaler (2006; 2003). 2. Cohen (2013) and Hanna (2011b).

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such measures have claimed that they ought to be acceptable even to those who oppose more coercive forms of paternalistic intervention.3 Some critics, however, have argued that libertarian paternalistic strategies raise a distinctive set of moral concerns. One commonly expressed concern is that it is objectionably manipulative to deliberately adjust choice architecture in order to induce more prudent decision-​making.4 Call this the manipulation objection. The manipulation objection, if sound, may pose a special problem for libertarian paternalistic strategies, as opposed to other forms of intervention. In this chapter, I argue that the manipulation objection is unsuccessful—​or at least that it is unsuccessful against the sorts of intervention favored by Thaler and Sunstein. I should say at the outset that I aim to consider only whether such intervention is objectionably manipulative. Even if everything I say is correct, it may turn out that libertarian paternalistic strategies are typically manipulative in some sense that holds little moral interest; for instance, perhaps “choice architects” can be said to manipulate choice architecture in the same morally innocuous way that research scientists manipulate experimental conditions.5 I begin by distinguishing what I  shall call “preference-​shaping” paternalism from other forms of intervention (section 8.1). I take some of the strategies favored by Thaler and Sunstein, such as the judicious use of default rules and framing effects, as paradigm cases of preference-​shaping paternalism. Focusing on these cases, I  offer a preliminary response to the manipulation objection (section 8.2). Next, I develop a rough account of manipulation (section 8.3) and argue that this account reinforces the conclusion that preference-​shaping strategies are not generally manipulative (section 8.4). Finally, I consider means of influence that may be objectionably manipulative, such as subliminal messaging and posthypnotic suggestion, and argue that they reveal no distinctive problem for pro-​ paternalism (section 8.5). 3. In addition to Thaler and Sunstein, see Blumenthal-​Barby (2013), Cohen (2013), and Trout (2005). Some of these other writers (wisely, in my view) avoid the “libertarian paternalist” label. 4.  See Coons and Weber (2013:  23), Grüne-​Yanoff (2012), Hausman and Welch (2010: 128), and Bovens (2009). Even some defenders of paternalism, such as Conly (2013: 30), believe that libertarian paternalism is manipulative. 5. Philosophers disagree about whether manipulation is a moralized concept—​that is, whether manipulation is (at least pro tanto) wrong as a matter of definition. For relevant discussion of this issue, see Wood (2014:  18–​21) and Baron (2014:  114–​16; 2003: 39–​40). If manipulation is a moralized concept, then the arguments that follow would, if sound, show that libertarian paternalistic strategies are not generally manipulative. If manipulation is not a moralized concept, then the arguments that follow would leave open the possibility that libertarian paternalistic strategies are generally manipulative in some nonmoralized and unobjectionable way.

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8.1 PREFERENCE-​S HAPING PATERNALISM AND THE MANIPULATION OBJECTION

Before considering the manipulation objection, it will be useful to have at least a rough characterization of libertarian paternalism. As Thaler and Sunstein describe it, libertarian paternalism differs from other forms of paternalism in at least three respects. First, and most important, libertarian paternalism supposedly does not limit liberty: it improves prudential decision-​making without removing options or making it more costly for people “to obtain their preferred outcomes.”6 Second, Thaler and Sunstein claim that libertarian paternalism is “inevitable,” since people’s choices sometimes depend on how options are presented.7 This claim is somewhat misleading, since it is surely false to claim that libertarian paternalism is inevitable. After all, someone could exploit choice architecture without any concern for the chooser’s own good.8 The more charitable interpretation of Thaler and Sunstein’s claim is that influence is often inevitable; in many cases, there is no “neutral” choice architecture.9 Third, it is commonly claimed that the strategies favored by libertarian paternalists “harness” cognitive biases for good ends.10 By contrast, other forms of paternalism—​ for instance, fining people in order to deter imprudent behavior—​need not rely on susceptibility to cognitive bias: even a perfectly rational agent might respond to penalties or incentives. The sorts of paternalistic influence that Thaler and Sunstein focus on, and that I will examine in this chapter, share one further characteristic: they do not involve deception or the deliberate withholding of information that one has a prima facie duty to disclose. As we have seen, several of Thaler and Sunstein’s examples involve the judicious use of framing effects or default rules. In some cases, different but equally informative ways of framing or describing options might elicit different choices. Famously, people seem more favorably disposed to a potentially risky medical procedure when the risks are framed in terms of the survival rate (“90% of patients survive the procedure”) rather than the mortality rate (“10% die on the operating table”).11 Default rules can be significant, since defaults tend to be “sticky”: when an option is selected as the default, more people will end up with it. In addition to the use of frames 6. Sunstein and Thaler (2003: 1185). 7. Sunstein and Thaler (2003: 1171). 8. Kelly (2013: 219–​20); see also Begon (2016: 366–​67). 9. Grill (2014: 142–​45), Kelly (2013: 219), Blumenthal-​Barby (2013: 194), and Hanna (2011b: 523). 10. This language is used by Thaler and Sunstein (2008: 8) and Trout (2005: 432). 11. See McNeil et al. (1982).

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and defaults, Thaler and Sunstein tout a motley array of putatively libertarian paternalistic measures, including mandatory “cooling-​off” periods,12 graphic warning labels,13 and gambling “self-​ban” policies (under which gambling addicts can place themselves on a list of people to be denied entry to casinos).14 In considering such cases, it is useful to distinguish between what I will call preference-​shaping intervention and non-​preference-​shaping intervention.15 Preference-​shaping intervention aims to influence behavior by operating on a person “from the inside.” As a result of preference-​shaping intervention, a certain option will appear more (or less) attractive than it otherwise would, even though the objective features of this option have not significantly changed.16 Of course, one way to alter a person’s preferences is to simply provide him with information, but I will assume (for now, at least) that preference shaping must involve more than the mere provision of information. Non-​preference-​shaping intervention, by contrast, aims to influence behavior by making certain options more (or less) costly, or more (or less) difficult to obtain, without in other ways changing the target’s preferences. The distinction between preference-​ shaping and non-​ preference-​ shaping intervention suggests that there are potentially important differences among the examples Thaler and Sunstein discuss. Some of their examples involve non-​preference-​shaping forms of influence that certainly do not appear to be manipulative. For instance, suppose that most (but not all) of a company’s employees prefer to be enrolled in a particular health insurance plan but do not want to go through the hassle of filling out an enrollment form. It does not appear that the company manipulates these employees by setting their favored plan as the default; the company respects their preferences without shaping them.17 To be sure, those in the minority, who prefer an alternative plan, may be annoyed that they have to fill out paperwork to opt out. But they cannot plausibly claim that they are being manipulated because their preferred plan was not set as the default. Other cases discussed by Thaler and Sunstein do not share the features

12. Thaler and Sunstein (2008: 250–​51). 13. Sunstein (2014: 48). 14. Thaler and Sunstein (2008: 233). 15. The “shaping” terminology is due to Hausman and Welch (2010: 128). 16.  For a somewhat similar distinction between means of influence, see Mills (1995: 99). See also the discussion of the difference between manipulation and coercion in Coons and Weber (2014: 15). 17. Sunstein and Thaler (2003: 1194) suggest that a choice architect may set a default by considering the choice that most people would make if required to choose.

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of libertarian paternalism described earlier and likewise do not appear to involve preference shaping. Mandatory cooling-​off periods give a person the opportunity to change his mind but may not be aimed at changing his preferences. They also seem to limit liberty, since they in effect require someone to wait to do something that he might want to do now. Pre-​commitment strategies, such as gambling self-​bans, may not shape anyone’s preferences; instead, they restrict (future) liberty, even if such restriction is justified by the target’s past consent. The manipulation objection would seem to apply mainly to preference-​ shaping, rather than non-​preference-​shaping, means of influence. Consider the healthcare professional who frames the risks of a medical procedure so as to encourage the patient’s consent. Or consider Thaler and Sunstein’s well-​known cafeteria example: given that customers are influenced by the order in which food is displayed, a cafeteria owner may place vegetables near the front of the line to encourage healthier eating.18 These cases meet the criteria for libertarian paternalism:  no one’s liberty is limited, some influence is inevitable (since the risks must be presented in some way and the food displayed in some order), and the targets’ cognitive biases are exploited. When a choice architect relies on our susceptibility to framing or ordering effects, she may be trying to influence our preferences or behav­ ior without providing us with any new reasons to make the desired choice. Though I have argued that the use of defaults does not always involve preference shaping, it sometimes might. Thaler and Sunstein suggest that the default may sometimes establish a baseline for evaluation, relative to which the disadvantages of other options loom especially large.19 The default may also come to represent a norm from which people are reluctant to depart.20 If the selection of a default influences people in these ways, it may affect their preferences without providing them with any new information relevant to their choices. Indeed, many noncoercive strategies of influence may rely at least in part on their preference-​shaping effects. Nonetheless, since means of influence that rely on framing or ordering effects and default rules appear to be the most likely targets of the manipulation objection, I will begin by focusing on these strategies. In the interest of clarity, I will

18. Thaler and Sunstein (2008: 1–​3). 19. Sunstein and Thaler (2003: 1181). 20. Consider default rules regarding organ donation. If donation is presumed to be the default, actively opting out may have the flavor of an explicit refusal to do one’s part in supporting a system from which one would profit if the need were to arise. If nondonation is presumed to be the default, not actively opting in may have more the flavor of a decision not to do something supererogatory for the potential benefit of others.

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continue to refer to them as instances of preference-​shaping paternalism and eschew the potentially more expansive (and perhaps misleading) “libertarian paternalist” label. Having clarified the nature of preference-​shaping paternalism, we can now go on to consider whether it is manipulative. In arguing that it is, many critics contrast manipulation with rational persuasion. Their thought appears to be that preference-​shaping paternalism is objectionable insofar as it influences a person’s choices through means that do not appeal to his reason. Daniel Hausman and Brynn Welch aptly describe this concern: The reason why nudges such as setting defaults seem . . . to be paternalist, is that in addition to or apart from rational persuasion, they may “push” individuals to make one choice rather than another. Their freedom, in the sense of what alternatives can be chosen, is virtually unaffected, but when this “pushing” does not take the form of rational persuasion, their autonomy—​the extent to which they have control over their own evaluations and deliberation—​is diminished.21

According to this line of reasoning, preference-​shaping policies are objectionable because they “deliberately circumvent people’s rational reasoning and deliberating faculties.”22 Indeed, some critics have suggested that preference-​shaping paternalism may be even “worse” than liberty-​limiting forms of paternalism, insofar as the choice architect views the target’s own preferences and evaluations “as something one may attempt to extinguish, supplant, or ‘manage.’ ”23 The objection here cannot be that preference-​shaping paternalism necessarily precludes attempts at rational persuasion. After all, one could both adjust the choice architecture and attempt to persuade a person to choose what one regards as the best option. The manipulation objection is perhaps best interpreted as claiming that preference-​shaping paternalism is problematic because its practitioners do not rely exclusively on the techniques of rational persuasion.24 When a person is susceptible to framing, for instance, one factor that makes a difference to his choice is the way in which the options are described. And in framing the options in one way rather than another (equally informative) way,

21. Hausman and Welch (2010: 128) 22. Grüne-​Yanoff (2012: 636). 23. Coons and Weber (2013: 23). 24. White (2013: 90).

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the choice architect seems to appeal to the target’s irrational foibles, not his reason. Utilizing these foibles, even in the service of a worthy goal, may seem manipulative. The manipulation objection to preference-​shaping paternalism might thus be summarized as follows: (1) If a person makes a certain choice, but would have made a different choice if the options had been presented or structured in a different but equally informative way, then his rational faculties have been bypassed or circumvented. (2) It is objectionably manipulative to intentionally bypass or circumvent someone’s rational capacities. (3) Therefore, it is objectionably manipulative to intentionally influence choice through the design of choice architecture. Note that this argument leaves open the possibility that manipulative preference shaping is sometimes permissible, all things considered. It maintains only that there is a (presumably nontrivial) objection to such influence. In passing, it is worth noting that the manipulation objection may be subject to some of the concerns raised in c­ hapter 3. The manipulation objection, as just characterized, maintains only that there is something especially problematic about intentional shaping; this is why it is not necessarily jeopardized by the claim that preference-​shaping influence is sometimes inevitable.25 It would appear, then, that the manipulation objection relies on the view that the permissibility of an act or policy can depend on the intentions or motives that prompt it. This view is subject to the familiar concern that an agent’s motives are irrelevant to the permissibility of his behavior.26 Nonetheless, since more can be said about the manipulation objection, I want to set aside this more general concern about the relevance of motives or intentions.

25. This point is made by Blumenthal-​Barby (2013: 195–​96) and Hausman and Welch (2010:  130, though compare 132). Notice, for instance, that proponents of the manipulation objection presumably would not claim that the cafeteria owner objectionably manipulates her customers if, without giving any thought to their health, she places the vegetables first in line because this is simply the most convenient place to put them. 26. See section 3.2.

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[ 206 ]  In Our Best Interest 8.2 PREFERENCE SHAPING: RATIONAL PERSUASION OR MANIPULATION?

As we have seen, most defenders of the manipulation objection draw a contrast between rational persuasion and preference shaping. The intended contrast is not as stark as it may initially appear, however. Consider an illustration. In their critique of libertarian paternalism, Hausman and Welch argue that it is not paternalistic to place placards containing nutritional information in a cafeteria line; such behavior “would not be aiming to shape how the [diners] choose or to limit what can be chosen.”27 But of course there are different ways in which a cafeteria could provide nutritional information. Each placard might include the nutritional information for just one entrée, or placards could include information for multiple entrées, perhaps to encourage direct comparison. The placards could be placed directly in front of each item, or they could be displayed only at the beginning of the line. A small symbol (perhaps a heart) might be placed on some placards to identify items that are especially healthy. Diners may pay more attention to the placards if they are printed on brightly colored paper, or placed in aesthetically appealing frames, and so forth. Is it manipulative for the cafeteria owner to design and arrange the nutritional placards in the way that is most likely to encourage customers to make healthy choices? Suppose, first, that the answer is “no.” One might argue that if it is not objectionably manipulative for the cafeteria owner to provide her customers with nutritional information, then it is not objectionably manipulative for her to design the nutritional labels with an eye to encouraging healthy choices. This seems plausible. The problem for defenders of the manipulation objection, however, is that we might just as well claim that if it is not objectionably manipulative for the cafeteria owner to display food for sale, it is not objectionably manipulative for her to arrange the food with an eye to encouraging healthy choices. Likewise, we might claim that if it is permissible for someone to provide others with information or to set a default, it is permissible for her to frame the information or set the default in a way that will promote desirable outcomes. In short, answering “no” to the previous question seems to condone the sorts of preference-​shaping measures that the manipulation objection was thought to rule out. Suppose, then, that we answer “yes.” On this view, while it is not manipulative for the cafeteria owner to provide her customers with nutritional 27. Hausman and Welch (2010: 129). Although providing information can obviously influence choice, Hausman and Welch do not believe that it shapes choice in the supposedly problematic way they have in mind.

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information, it is manipulative for her to deliberately choose to display the information in ways that will encourage healthier eating.28 While this response is consistent with the manipulation objection, it seems implausible. That is, it seems implausible to claim that although it is commendable to inform people, it is objectionable to consider their interests in deciding precisely how to inform them. (This conclusion may be especially odd if one were to argue that it is commendable to inform people because doing so is in their interests.) Consider in this regard government-​mandated warning labels on cigarette packaging. Some critics have argued that labels including graphic images, such as diseased lungs, are objectionably manipulative.29 But even if we think that warnings should include only text, we still have to ask how large the labels should be, how the warnings should be worded, whether the warnings should be printed on each package or merely displayed at the point of sale, and if the former, where the labels should be placed on the cigarette packaging. And so on. While each set of labeling requirements may succeed in providing smokers with information, different requirements may have different effects on smoking behav­ior. On the face of it, the most satisfying basis for deciding among the different sets of requirements would appeal to the interests of smokers and prospective smokers. There is a more general lesson to be drawn here. It is tempting to suppose that one person manipulates another when he intentionally uses nonrational means to influence the other’s behavior. On closer inspection, however, this view is too simple (at least if manipulation is thought to be objectionable). The size or color of a warning label does not provide one with reasons to refrain from smoking. And it may be a psychological foible or irrational quirk of ours that we pay more attention to large print, or brightly colored objects, and so forth. In a rather clear sense, then, a policy that requires very large or brightly colored labels relies on nonrational means of influence. Nonetheless, if large or brightly colored warning labels would deter some people from smoking, it seems odd to think that we should not consider this fact in deciding on a set of labeling requirements.30 Why is this? In my view, a particular means of influence does not objectionably manipulate a person if it encourages him to better appreciate and act on the 28. Sunstein (2014: 139) has distinguished between disclosure policies that provide “just the facts” and disclosure policies that go “beyond the facts” to persuade people. He gives graphic cigarette warning labels as an example of the latter. The reply we are considering seems to imply that “beyond the facts” disclosure is often manipulative. 29. Grüne-​Yanoff (2012: 637). For an opposing view, defended on soft paternalistic grounds, see Feinberg (1971: 11). 30. For a similar point, see Grill (2014: 144).

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basis of good reasons. As we have seen, appreciation involves more than mere knowledge.31 Someone might know that smoking increases his risk of lung cancer or that regular consumption of trans fats is associated with heart disease. But he might not fully appreciate the reasons provided by these facts: he may fail to apply the risks appropriately to his own case, he may ignore the risks or try not to think much about them, or he may fail to vividly imagine the severity of the risked outcomes. If large or brightly colored cigarette warning labels would encourage a person to appropriately attend to the life-​shortening effects of smoking, then the use of these means of influence would encourage him to appreciate the reasons he has not to smoke. Something similar would be true of graphic warning labels depicting images of diseased lungs, if they too would encourage people to appropriately attend to the health effects of smoking. It is not manipulative to encourage a person to better appreciate reasons relevant to his behavior. As the discussion of warning labels suggests, an agent might encourage a target to better respond to reasons by utilizing an apparently arbitrary feature of the target’s psychology. It may be an irrational quirk of ours that we are more frightened when the risks of a medical procedure are presented in terms of the mortality rate than when such risks are presented in terms of the survival rate. Even so, it would not seem manipulative for an agent to deliberately present the risks in terms of the survival rate if she does so because she (correctly) believes that the mortality rate description would scare the patient and thereby inhibit his ability to rationally consider his options. Likewise, even if our bias in favor of the status quo is in some sense irrational, the use of defaults may at least sometimes encourage people to appreciate reasons. When defaults shape preferences, they may do so by making the reasons in favor of the default option more salient, or by conveying the impression that decision-​makers should depart from the default only if they can identify good reasons to do so. If the selection of a default influences people in these ways, then it may work by getting them to appreciate the reasons to choose the default: if the default really is a good option for most people, then there is nothing objectionable about placing it in a light in which it strikes most people as a good option. Let us return to the simple two-​premise statement of the manipulation objection, described at the end of the previous section. The discussion to this point shows that we should reject premise (1)—​the claim that influence attributable to choice architecture necessarily bypasses or circumvents

31. See section 7.2.

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the decision-​maker’s rational faculties. In some cases, apparently arbitrary features of the choice situation can interact with our “psychological foibles” and render us more responsive to reasons. Once again, this point appears to be borne out by common experience. It may be a psychological foible of ours that we tend to be soothed by calm, slow voices. Yet if an agent speaks in such a voice in order to help an overly excited decision-​maker calm down and think more clearly, the agent can hardly be accused of manipulation.32 As I have argued, a similar point can be made about many uses of preference-​shaping paternalism.

8.3 AN ACCOUNT OF MANIPULATION

I have so far argued that many uses of preference-​shaping paternalism are not manipulative, insofar as they encourage the target to better appreciate reasons. This argument only partially rebuts the manipulation objection, however, since it fails to vindicate some of the preference-​shaping measures supported by Thaler and Sunstein, among others. Return to the cafeteria example. By displaying healthier foods at the beginning of the line, the cafeteria owner does not encourage her customers to better appreciate reasons. Instead, the customers’ susceptibility to her influence is perhaps best explained by their reliance on a decision-​making strategy that is less than fully rational. Instead of surveying all available items in the line and then selecting what they regard as the best options, the customers probably consider on a case-​by-​case basis whether each item down the line is sufficiently good and stop taking food once their trays are full.33 Rather than attempting to rid her customers of this irrational bias in favor of foods displayed earlier in the line, the cafeteria owner exploits this bias in order to benefit her customers. Something similar may sometimes be true of the use of defaults: perhaps choice architects sometimes rely on our susceptibility to the status quo bias in order to encourage us to stick with the most prudent option. Nevertheless, I do not believe that the cafeteria owner is guilty of manipulation. In order to explain why, it will be useful to have at least a rough account of manipulation. I  develop such an account in the remainder of this section. In the next section, I  apply the account to the cafeteria example and similar cases. To be clear, I will not attempt to offer a conceptual 32. I am indebted to Danny Scoccia for this example. 33.  I  am indebted to Eric Chwang for helpfully describing the cafeteria case in this way.

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analysis that captures all the ways in which we use the term “manipulation.” There may be many different types of manipulation, a full survey of which would take us too far afield. My concern is only whether there is a type of manipulation that grounds an objection to preference-​shaping paternalism. Given my aims, one sensible way to proceed is to consider several paradigm cases of noncoercive, nondeceptive manipulation that appear to make use of individuals’ psychological foibles or irrational quirks. If we can provide an account of the way in which the behavior at issue in these cases is manipulative, then we can fruitfully apply the account to the preference-​ shaping measures that are our concern. Of course, this argumentative tactic has its limits:  even if the account thus developed does not imply that preference-​shaping paternalism is manipulative, there may be an alternative or broader account that does. Still, if there is a way to accommodate our intuitions about certain paradigm cases of manipulation without condemning the preference-​shaping strategies we have been considering, the manipulation objection is likely to lose much of its force. Let us begin, then, by considering three paradigm cases of manipulative behavior. First, suppose that an agent knows that some person has difficulty thinking clearly when there is loud music blaring in the background. The agent thus plays loud music with the aim of making this person more compliant. As a second case, consider Eric Cave’s example in which a reluctant theatergoer gets her partner to miss a play “by engaging [his] sublimated compulsive tendency to check the stove when [they] are halfway to the theatre.”34 Finally, imagine that an agent attempts to get someone to do what she wants by appealing to this person’s “mother complex”—​for instance, by telling him that his mother will be ashamed of him unless he complies with the agent’s request.35 Each of these cases involves manipulation. What do they have in common? On the account I favor, manipulation—​or at least the type of manipulation at issue in these cases—​involves the intentional use of nonrational means of influence, where these means affect a person’s deliberation for the worse.36 This account coheres with the thought that someone 34. Cave (2007: 132). 35. I owe this example to Danny Scoccia. 36. There is an interesting question about precisely how nonrational means of influence are to be distinguished from rational means of influence. I cannot undertake a full discussion of this issue here, so I will largely rely on our intuitive judgments. In gen­ eral, if an agent provides someone with information or states reasons, and the agent intends that the other be influenced merely through his awareness of this information or these reasons, then the agent has not intentionally used nonrational means. If the agent intends that someone be influenced by other factors—​e.g., the tone of voice

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who is manipulated (the manipulee) typically acts on the basis of bad reasons, or fails adequately to reflect on reasons, or attends to irrelevant considerations, or places more (or less) weight on certain considerations than those considerations properly merit.37 Thus, in the first case, the manipulative agent intentionally takes steps to short-​circuit the manipulee’s independent deliberation. In the second case, the manipulator mobilizes the manipulee’s irrational worry. And in the third case, the manipulator appeals to the manipulee’s feelings of filial guilt, which do not provide him with good reasons to do what the manipulator wants.38 The common feature of these cases, in short, is that the agent deliberately influences someone, with the result that this person’s deliberative process is worsened. This claim raises a complication, however. There are some cases in which an agent might worsen someone’s deliberation in some respect without thereby worsening this person’s deliberation on balance. For instance, suppose that an agent deliberately encourages someone to act for bad reason R1, when this person otherwise would have acted for equally bad reason R2. While such an agent may not worsen this person’s deliberation, all things considered, she does worsen his deliberation in some respect—​namely, by encouraging him to give more weight to R1 than he otherwise would have. I  am inclined to say that such behavior is manipulative (though it may not be wrong, all things considered). If an agent does not worsen the subject’s deliberation in any respect, however, then on my account she has not manipulated the subject. Aside from its ability to classify certain paradigm cases of manipulation in the intuitively correct way, the rough account just described has at least two virtues. First, it accommodates the fact that there is often no unqualified answer to the question of whether some particular type of influence is manipulative. Consider in this regard appeals to emotion. It is usually manipulative to play on a person’s irrational fear. But this does not mean that emotional appeals are generally manipulative. If an agent attempts to engage someone’s appropriate feelings of sympathy in order to encourage

in which the information is presented—​then she has intentionally used nonrational means, though whether this constitutes manipulation depends, again, on whether it affects the subject’s deliberation for the worse. 37.  For a similar account, see Noggle (1996), though I  express uncertainty about some details of Noggle’s view later. 38. Baron notes, in a similar vein, that it can be manipulative to offer inducements when doing so gets the target to agree to one’s proposal for “the wrong sort of reason” (2003: 41).

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benevolent behavior, the agent may improve the other’s deliberative position by rendering him more responsive to reasons.39 Second, the account enables us to make sense of why manipulation is morally worrisome. The manipulator puts the manipulee in conditions in which the manipulee is less likely to respond appropriately to reasons. Though we might disagree about precisely why such behavior is typically objectionable—​whether because it leads people to make poor choices, or offends against an ideal of autonomy, or demonstrates some sort of vice—​it is not difficult to see why such behavior would seem potentially problematic. I have argued that manipulation involves the intentional use of nonrational means of influence, where these means affect the manipulee’s deliberation for the worse. While this account seems promising, it raises an important question: What is the baseline relative to which manipulation worsens the manipulee’s deliberative situation? In an illuminating discussion, Robert Noggle characterizes manipulation as “the attempt to ‘adjust someone’s internal levers’—​that is, someone’s belief, emotion, or desire—​ away from their ideal settings.”40 The relevant settings or standards, according to Noggle, are those that the manipulator regards as ideal. By adopting this view, Noggle hopes to preserve a connection between manipulation and deception: whether someone has lied depends on what she believes, and whether someone is guilty of manipulation, on Noggle’s view, depends on the deliberative conditions that she regards as ideal. This view can be contrasted with two alternative views. One alternative maintains that the manipulator attempts to distort the manipulee’s deliberation relative to the manipulee’s own ideals.41 A second alternative maintains that the relevant standards are objective, or independent of both the manipulator’s and the manipulee’s beliefs about the “ideal” deliberative settings. As I will argue in the next section, each of these three proposals—​the manipulator-​relative baseline, the manipulee-​relative baseline, and the objective baseline—​will end up supporting my claim that the cafeteria example and similar cases do not involve manipulation. Nonetheless, it is worth briefly examining each proposal, partly because the appeal of my gen­ eral account of manipulation may depend on whether a plausible baseline 39. Noggle (1996: 49). 40. Noggle (1996: 47). 41.  Noggle (1996:  47) argues that according to such a manipulee-​relative baseline, one might manipulate someone without knowing it, since one might not know which standards others regard as ideal. In order to avoid this result, however, we need not relativize the baseline to the manipulator’s ideals; instead, we could relativize it to the manipulator’s beliefs about the manipulee’s ideals.

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can be found. In the remainder of this section, I will provide (somewhat tentative) support for the objective baseline. One problem for Noggle’s manipulator-​relative baseline is that it seems under-​inclusive. Consider the following example: Racist Candidate:  In order to gain an edge over his opponent, a political candidate runs a set of campaign ads designed to subtly play on voters’ subconscious racist fears. The candidate is himself thoroughly racist, and he believes racist fear to be wholly appropriate. Noggle would claim that the candidate has not manipulated the voters, since he has not moved them away from the deliberative ideals that he regards as appropriate.42 I am not so sure. Perhaps the candidate has not attempted or intended to manipulate the voters, but there is a strong case that the voters have nonetheless been manipulated.43 In case this is not clear, consider a further example: Sincere Cult Leader: A religious cult leader recruits followers through the sorts of apparently manipulative (but not quite coercive) tactics often employed by such groups. The cult leader, however, sincerely believes that his tactics improve the recruits’ capacity to see the truth and make prudent decisions about whether to join the group. The cult leader directs his recruits toward the deliberative standards that he regards as ideal. But once again, this fact alone seems insufficient to acquit him of the charge of manipulation. Consider now the view according to which the baseline is set relative to the manipulee’s beliefs about the appropriate deliberative standards. This view also appears to be under-​inclusive. Consider the following example: Unacknowledged Compulsive Behavior: Albert has a compulsive tendency to return home to ensure that his stove is turned off. He does not, however, regard this tendency as compulsive or irrational; instead, he identifies with it and regards it as an indication of his prudence. While Albert is driving Betty to a play that she does not particularly want to

42. Noggle (1996: 50). 43. Compare the case of manipulative seduction carried out by a thoroughgoing misogynist, as discussed in Cave (2014: 199).

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see, she reminds him that he has not yet returned to check the stove. Albert returns home and they miss the play.44 By deliberately appealing to Albert’s obsession with his stove, Betty actually leads him closer to his own deliberative standards (and we can suppose that she knows this). The manipulee-​relative baseline would thus imply that she has not manipulated Albert. But it seems that she has. So far, I  have argued that the manipulator-​relative baseline and the manipulee-​relative baseline are both under-​inclusive. If this were the only problem, someone might hope to accommodate the counter-​examples by adopting a disjunctive account: perhaps manipulation involves the attempt to move someone away from standards that either he or the manipulator regards as ideal. One problem for such a disjunctive account, however, is that the baselines considered so far also seem over-​inclusive. Consider a variation on Unacknowledged Compulsive Behavior. Suppose that Albert has made it to the theater and is greatly enjoying himself when he begins to worry (irrationally) about his stove. Betty, now in a more benevolent mood, knows that the only way to assuage Albert’s worry and get him to stay for the rest of the play is to tell him, in a calm but stern voice calculated to have the desired effect, that the stove will be fine. Because Albert identifies with his compulsive worry about the stove, the manipulee-​relative baseline (and any account that includes this baseline as a disjunct) would seem to imply that Betty has manipulated Albert by dissipating his worry.45 It does not seem, however, that Betty manipulates Albert by subduing his obsessive compulsive tendencies. Consider now a final view, according to which the (successful) manipulator worsens the manipulee’s deliberative situation relative to some objective standard, which is independent of both the manipulator’s and the manipulee’s beliefs about the ideal deliberative settings.46 This view implies that Betty manipulates Albert if she plays on his compulsive worry, but not if she lessens it, since compulsive worry is not, in this case, a good basis for choice. The objective baseline view also yields the intuitively correct judgments about Racist Candidate and Sincere Cult Leader, since the agents in these cases induce others to act for bad reasons. The objective baseline

44. This is a variant on the case discussed in Cave (2007: 132). 45.  Notice further that if Betty believes that Albert’s compulsive tendencies are rational—​perhaps she also worries about stoves but simply wants to see the rest of the play—​then the manipulator-​relative baseline will imply that she has manipulated Albert. 46. A version of the objective baseline view is endorsed in Barnhill (2014: 66–​68).

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view gets the right result in these cases because of a key advantage it has over its competitors: it does not make the truth of a manipulation claim depend on anyone’s (perhaps bizarre or idiosyncratic) beliefs about the appropriate deliberative standards. Taken together, the examples we have considered suggest that an agent, A, can manipulate another person, B, by moving B toward deliberative standards that A (or B) regards as ideal, and that A can fail to manipulate B even though A moves B away from deliberative standards that A (or B) regards as ideal. Only the objective baseline view easily accommodates the judgment that an agent (or the target of her influence, or both) can be mistaken about whether a particular behavior exerts inappropriate or manipulative influence. As we have seen, Noggle endorses the manipulator-​relative baseline to preserve the parallel between deception and manipulation:  whether an agent has lied depends on what she believes. Yet the application of many other moral notions does not depend so neatly on anyone’s beliefs. For instance, we do not think that a transaction is exploitative merely because one party to the transaction believes that it is unfair. Likewise, to determine whether a proposal is coercive, we would want to know whether the proposer has a right to make the proposal and whether the recipient has a reasonable alternative to acceptance; it is probably insufficient to consult either party’s beliefs about these matters.47 The objective baseline view holds that something similar is true of manipulation. If an agent leads someone toward deliberative standards that the agent regards as ideal but away from deliberative standards that actually are ideal, then the agent may manipulate without intending to do so (that is, without the de dicto intention to manipulate) and without knowing that she is manipulating the person she influences.48 But this conclusion may not be all that surprising; after all, as I have noted, an agent may exploit someone through a transaction even if the agent (mistakenly) regards the transaction as fair and does not intend (under this description) to exploit the other party. To be sure, if an agent intends to lead someone toward deliberative standards that the agent mistakenly believes to be ideal, we may think, depending on the details of the case, that the agent is not culpable, or perhaps that she is not manipulative

47. Wertheimer (1987). 48. Both Baron (2014: 100–​101) and Manne (2014: 228–​31) claim that an agent can manipulate someone without the conscious de dicto intention to manipulate. This claim seems sufficient to call into question the analogy between manipulative actions and lies.

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as a person. Even so, her actions might succeed in manipulating the person she influences.49 Finally, notice that proponents of the manipulation objection to preference-​shaping paternalism may have especially good reason to endorse the objective baseline view, as opposed to the manipulator-​relative baseline view. Paternalistic choice architects are unlikely to believe that they are leading their targets astray from the appropriate deliberative standards. If anything, paternalistic choice architects are likely to believe that they improve their targets’ deliberation (and even that they improve their targets’ deliberation relative to the targets’ own standards).50 Proponents of the manipulation objection would presumably claim that such beliefs by themselves are insufficient to show that preference-​shaping paternalism is not manipulative. Much more could be said about the nature of manipulation, and I  do not pretend to have offered a decisive argument in favor of the objective baseline view. In defending this view, I  hope mainly to have shown that there is a promising way of developing my rough account of manipulation, according to which manipulation involves the intentional use of nonrational means of influence, where these means of influence adversely affect the manipulee’s deliberation.

8.4 APPLYING THE ACCOUNT

Consider now what this account implies about the moral status of preference-​shaping paternalism. I  argued in section 8.2 that preference-​ shaping paternalism sometimes encourages people to appreciate reasons and that, when it does, it is not objectionably manipulative. This claim seems to follow from the more general account of manipulation I  have offered:  in encouraging someone to appreciate reasons, the agent brings that person closer to the ideal deliberative standards. As I also noted, however, the cafeteria case shows that some preference-​shaping measures

49.  It may appear that proponents of the objective baseline view must deny internalism about reasons—​roughly, the view that reasons for action must be appropriately connected in some way to the agent’s motivations. This appearance is misleading. It may be that the ideal deliberative standards would always direct a person toward the maximal fulfillment of his (informed, ideal) desires, even if some people in fact accept deliberative standards that are not geared toward the maximal fulfillment of their (informed, ideal) desires. I am grateful to Danny Scoccia for pointing out the need to clarify my view on this issue. 50. See Thaler and Sunstein (2008: 5).

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championed by Thaler and Sunstein do not encourage people to better appreciate reasons. Instead, the cafeteria owner simply relies on pre-​existing biases. Does this sort of behavior constitute manipulation, according to my account? It does not. While the cafeteria owner may not attempt to rationally persuade her customers, she does not in any respect worsen their deliberative position, either. Regardless of how the food in the cafeteria line is arranged, customers will be biased in favor of items displayed closer to the front. Displaying vegetables rather than cake first in line will not affect customers’ susceptibility to this bias, nor will it cause them to attend to bad reasons or irrelevant considerations that they otherwise would have ignored. It is not as though diners who go through the “healthy” cafeteria line make rational or deliberative errors that their counterparts in the “unhealthy” cafeteria line avoid. Similar claims can be made about the use of defaults. After all, the status quo bias will likely rear its head regardless of whether the default is set paternalistically (rather than in some other way). More generally, when an agent adjusts the “external” choice architecture without changing the target’s “internal” motives or deliberative strategy, the agent does not lead the target away from any deliberative standard to which he otherwise would have conformed. The agent’s reliance on her target’s psychological bias is not manipulative so long as the bias would have been operative in the same way even absent the agent’s influence. Notice that this conclusion follows regardless of whether we accept the objective, manipulator-​relative, or manipulee-​relative baseline. To be sure, some adjustments to the choice architecture may constitute manipulation. Again, if I know that you have difficulty thinking clearly while loud music is playing, it would be manipulative for me to turn on the stereo, at least if I do so in order to influence you. But such behavior is manipulative precisely because it reduces your ability to engage in clear-​headed deliberation. The same cannot be said of cases in which an agent merely utilizes biases that would have been operative in any case.51 At this point, however, a critic might object. Perhaps my account implies that it is not manipulative to exploit a person’s psychological biases.52 But if so, the critic may argue, so much the worse for my account. Instead of concluding that my account shows that the cafeteria owner does not

51.  For a somewhat similar point, see Hausman and Welch, though they go on to argue that there is nonetheless “an important difference between choices that are intentionally shaped and choices that are not” (2010: 133). 52. This “exploitation” language is used in Blumenthal-​Barby and Burroughs (2012: 5), Grüne-​Yanoff (2012: 637), Hausman and Welch (2010: 130), and Bovens (2009: 209).

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manipulate her customers, perhaps we should conclude that the manipulative character of the cafeteria owner’s behavior shows that my account is mistaken. There are two points worth making about this objection. First, insofar as the objection rests on the claim that preference shaping “exploits” the target’s psychological biases, it may seem plausible largely because it fails to distinguish between two different senses of “exploitation.” There is a nonmoral sense of exploitation, in which “to exploit” is simply “to make use of.”53 It is in this sense that one can claim, without begging any moral questions, that preference-​shaping paternalism exploits its targets’ psychological biases. There is also a moral sense of exploitation, in which to exploit someone is to take unfair advantage of him. Of course, one might make use of a person’s psychological biases in order to take unfair advantage of him—​say, by getting him to imprudently agree to a one-​sided contract that greatly benefits oneself. But this concern does not seem to arise for preference shaping that aims to benefit its targets. Second, while some critics object that preference shaping makes use of “imperfections in human judgment and decision-​making,” the same is true of a great deal of apparently innocuous behavior.54 The cognitive biases exploited by preference-​shaping paternalism are “imperfections” only in the sense that they are nonrational—​the sorts of features that characterize flesh-​and-​blood humans but not the perfectly rational creatures of economic theory, as Thaler and Sunstein would put it.55 By the same token, however, many traits of which we routinely and permissibly make use count as imperfections. For instance, a project leader may recognize that her co-​ workers are likely to do better work if she adopts an enthusiastic attitude or speaks in an encouraging tone of voice; perhaps enthusiasm is contagious. The co-​workers’ susceptibility to this form of influence is in some sense nonrational. But it does not seem that they are manipulated (in any objectionable sense) by the project leader’s deliberate attempts at enthusiasm. To take another example, the extent to which consumers find a product’s logo or packaging appealing depends on nonrational foibles and biases (for instance, the positive associations arbitrarily tied to certain fonts or color schemes). Yet it seems implausible to think that companies objectionably manipulate consumers merely by deliberately designing appealing logos. Before I turn to consider one final set of issues related to the manipulation objection, let me bring together the various strands of my response so 53. See Wertheimer (1996: 5) and Arneson (2001: 515). 54. The quoted passage is from Hausman and Welch (2010: 130). 55. Thaler and Sunstein (2008: 6–​8).

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far. In order to determine whether A has manipulated B by using or relying on nonrational means of influence, we should first ask what would have happened in the absence of A’s influence. One possibility is that B would not have been subject to the same or comparable influence in the absence of A’s efforts: A may, for example, activate a response or cognitive bias that otherwise would have been dormant. Whether A manipulates B in this sort of case depends on the effect of her influence. If A’s deliberate use of nonrational means encourages B to better appreciate reasons relevant to his behavior (or more generally if A moves B toward the ideal deliberative standards), then A has not manipulated B. By contrast, if A’s use of nonrational means encourages B to act on the basis of bad reasons, or attend to irrelevant considerations, or be moved by inappropriate emotions, then A probably has manipulated B. A further possibility, exemplified by the cafeteria case, is that B would have been subject to the same sort of influence absent A’s deliberate attempt (or any other agent’s deliberate attempt) at shaping.56 In this sort of case, I do not believe that A manipulates B in any objectionable sense. This is because A’s attempt at shaping does not in any respect worsen B’s deliberation. The cafeteria customers are in no worse a deliberative position, the owner having exercised her influence, than they would have been in if the owner had displayed items with no intention of influencing her customers’ dietary choices (as she is surely permitted to do). Similar claims could presumably be made about the use of defaults and frames. Finally, note that this account also implies that the cafeteria owner does not objectionably manipulate her customers if she places foods with the highest profit margin first in line. This result is significant. Retailers often arrange items and design choice architecture in ways that encourage consumers to spend more money. Confronted with this point, defenders of the manipulation objection have two options. First, they could argue that nearly all preference shaping—​whether carried out for paternalistic reasons or not—​is objectionable. A strong version of this response would maintain that most commercial uses of choice architecture are impermissible. This view seems implausibly sweeping.57 A weaker version of the first response 56.  The parenthetical qualification may be necessary to deal with cases of over-​ determination. Suppose that B is currently calm but that A stokes B’s irrational fear. If A had not done so, however, C would have stoked B’s irrational fear in precisely the same way. Strictly speaking, B may have been subject to the same sort of influence wielded by A even in the absence of A’s involvement. Still, it may seem that A’s behavior is objectionably manipulative. 57.  Wood (2014:  37–​41) argues that virtually all advertisements—​including those designed to encourage desirable behavior, such as quitting smoking—​are objectionably manipulative. This conclusion seems radical and would be rejected even by many critics

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would maintain that while such commercial practices are pro tanto wrong, they are usually permissible, all things considered. I am skeptical that it is even pro tanto objectionable for the cafeteria owner to more prominently display foods with the highest profit margin (unless this would result in serious harm to her customers).58 Moreover, if the pro tanto wrongness of manipulation can be easily overridden, it may turn out that preference-​ shaping paternalism is often permissible, all things considered, even if it is manipulative. A second way of responding to common commercial uses of choice architecture maintains that only paternalistic preference shaping is objectionably manipulative.59 It seems odd, however, to think that paternalistic preference shaping is manipulative while nonpaternalistic preference shaping is not: after all, each involves the same means of influence. I suspect that in order to defend an asymmetry between paternalistic and nonpaternalistic preference shaping, one would need to appeal to the putatively insulting character of paternalistic motives—​an appeal that we have already seen to be wanting.60

8.5 THE SUBLIMINAL MESSAGING OBJECTION

I have been focusing on attempts to influence decision-​making through means such as defaults and framing effects. My central argument has been that these strategies are not generally manipulative in any objectionable sense. Even if this is right, however, other preference-​shaping strategies may well be manipulative. Some of Thaler and Sunstein’s critics have suggested that the government (or another benevolent agent) might attempt to encourage more prudent behavior not only by changing the choice architecture but also by using subliminal messaging and other

of libertarian paternalism. For a plausible defense of commercial practices sometimes thought to be manipulative, see Arrington (1982). 58. For discussion of a similar point, see Baron, who argues that it is “not morally objectionable at all” for a homeowner to boil water with vanilla in it in order to make her house more inviting to potential buyers (2014: 114). 59.  See White (2013:  esp. chap.  6). A  related view is that preference-​shaping paternalism is objectionable only when carried out by governments (Grüne-​Yanoff [2012: 638]). 60. Moreover, the claim that preference-​shaping paternalism is insulting because it is prompted by paternalistic motives is distinct from the claim that preference-​shaping paternalism is manipulative. The motive-​based objection, if sound, would apply to some forms of behavior that are not plausibly described as manipulative—​for instance, the refusal to lend someone money because one believes that this person will use it imprudently.

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potentially worrisome strategies.61 What should the pro-​paternalist say about the permissibility of these means of influence? Discussion of this question is complicated by the fact that it is not entirely clear how subliminal messaging works—​or even if subliminal messaging works.62 One possibility is that subliminal messaging (sometimes) works, in effect, by highlighting or making more salient various reasons for or against the relevant form of behavior. Consider an example. A New Orleans department store is reported to have successfully decreased shoplifting by blending its background music with reminders that theft is illegal and immoral, in such a way that shoppers did not consciously notice the message.63 Now suppose that most prospective shoplifters in fact believe that theft is morally wrong and that the subliminal messages worked (assuming they did) by strengthening the resolve of such people to live up to their own moral ideals, or by getting them to refrain from shoplifting out of a well-​founded conviction that theft is wrong. In this case, it seems to me that subliminal messaging would not be objectionably manipulative, for the same reason that reminders of the wrongness of theft would not be manipulative: such messaging would merely encourage people to act on the basis of good reasons.64 61.  Grüne-​Yanoff (2012:  638), Hausman and Welch (2010:  131–​32), and Bovens (2009: 216). 62. Cave (2014: 177–​78). 63. Arrington (1982: 4). Of course, in this example subliminal messaging is used to deter behavior that wrongly harms others. I consider this complication later. 64. It might be thought that there is an important difference between transparent and nontransparent forms of influence and that subliminal messaging is objectionable because it is nontransparent (Bovens [2009: 216–​17]; for related discussion see Thaler and Sunstein [2008: 243–​47]). I am skeptical that the distinction between transparent and nontransparent influence has much moral weight in and of itself, though we may be concerned that nontransparent forms of influence are more subject to abuse. To appreciate this point, imagine that the department store gradually decreases the volume of the anti-​theft messages it broadcasts. If the “subliminal messages” that are too quiet for customers to hear work to deter theft in precisely the same way that clearly audible messages do, I find it hard to believe that the subliminal messages are especially objectionable. Even if I am mistaken about this point, however, the claim that a form of influence is not transparent admits of several different interpretations. In particular, as I have argued elsewhere, we can distinguish between (a) the claim that a person is unaware of some particular thing that is in fact influencing him, and (b) the claim that a person is unaware that some particular thing is influencing him (Hanna [2015: 641–​43]). I believe that it would be implausible to hold that all forms of influence characterized by (b) are objectionably manipulative. To return to an earlier example, suppose that you disclose some important information to me in a deliberately calm and soft tone of voice, to encourage me to think more clearly. If you thereby enable me to think more clearly, then it does not seem that you have manipulated me, even if I am unaware that your tone of voice had an influence on me. The claim described by (a), in contrast, characterizes subliminal messaging but not the preference-​shaping strategies

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I suspect, however, that most of those who regard subliminal messaging as especially insidious tend to think of it as functioning in a different way. They are likely to think that subliminal messaging implants new or “alien” beliefs and desires in those subject to it, or that it effectively changes their desires or beliefs without giving them any (good) reason to change their desires or beliefs. This is how we typically think of brainwashing, and it is also the way in which posthypnotic suggestion is commonly (though perhaps mistakenly?) depicted: the subject of hypnosis may find himself with an inexplicable urge to behave as the hypnotist has suggested, without knowing quite why. These sorts of influence may be objectionably manipulative. Since I suspect that subliminal messaging will strike us as especially problematic only if it takes a similar form, in what follows I will focus only on this form of subliminal messaging (and related strategies such as hypnosis), without considering how, or if, these strategies actually work. (If these strategies do not work in the relevant way, then the following discussion may be of merely theoretical interest.) It may seem that the pro-​ paternalist must concede that any manipulative strategy is fair game, so long as it encourages more prudent behavior. Some critics might find this result objectionable. To bring the moral concerns about such strategies into clearer focus, however, it is worth addressing an important preliminary. A critic might object to some means of putatively manipulative influence on the grounds that they are likely to be misused or abused.65 This concern recalls the familiar complaints about paternalism and slippery slopes. Thus, one might argue that if the government begins using subliminal messaging for fairly innocuous ends, it will end up using these techniques for more nefarious purposes. Perhaps this is true. If so, it would give us good reason to oppose a set of policies or institutions under which the government has broad authority to use subliminal messaging. I want to focus, however, on whether it would be wrong for the government (or other agents) to use subliminal messaging even if it could be known that the messaging campaign would effectively encourage more prudent behavior without leading to further and independent abuses. Under these (perhaps unrealistic) circumstances, endorsed by Thaler and Sunstein: after all, those subject to framing effects are aware of the way in which the options are presented, even if they are unaware that such choice architecture is likely to influence them. Thus, if we ought to be concerned about transparency for its own sake, I suspect that we should be concerned about transparency primarily in the sense of (a). While this conclusion may lead us to reject my claim that certain types of subliminal messaging might be unobjectionable, it would not impugn the sorts of preference-​shaping strategies endorsed by Thaler and Sunstein. 65. See Bovens (2009: 217) and Beauchamp and Childress (2013: 219).

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would it be permissible, according to pro-​paternalism, to use subliminal messaging, hypnosis, and so forth? My reply to this question has two parts. The first is that even if subliminal messaging does not limit liberty, it is at least plausible to suppose that people have certain interests that would be thwarted by subliminal messaging, such as interests in authenticity. If so, then such intervention will be permissible only if it serves sufficiently important interests. This conclusion seems plausible. The second part of my response is that concerns about subliminal messaging and similar techniques do not arise only with respect to paternalistic influence; they can also arise with respect to influence that aims to prevent people from harming others. For this reason, concerns about subliminal messaging do not appear to identify any distinctive problem about paternalism. I discuss each of these responses in turn. To begin with the first point, consider the attitude that a parent might take toward attempts to artificially “implant” beliefs and desires in her children.66 Imagine, for instance, that your child dreams of becoming a professional artist. You know, however, that this dream will be very difficult to realize. You also know, however, that through some combination of subliminal messaging and hypnosis, you can take all of the enthusiasm that your child now has toward an artistic career and direct it instead toward a career in accounting—​a career in which there is every reason to expect your child to succeed, but in which your child has previously shown little interest. If you are choosing only on the basis of what would be best for your child, would you “adjust” his preferences in this way? My suspicion is that many of us would be reluctant to do so, even if we were motivated to act only in our child’s best interest. Here is one possible explanation for this. Perhaps a person’s well-​being is sensitive to the authenticity of his desires and aims.67 On this sort of view, it is good for a person to have desires and aims that spontaneously emerged from his own character and circumstances, rather than desires and aims that were artificially “implanted” in him. Authenticity of this sort may be an important component of autonomy. Of course, the idea that it is good for a person to have authentic desires or aims would need to be fleshed out.68 66. I am indebted to David Boonin for calling this line of response to my attention, and to Michael Tooley for an example resembling the one that follows. 67.  Sumner (1996:  166–​71) appeals to an authenticity constraint in attempting to show how life satisfaction accounts of well-​being can address familiar concerns about adaptive preference formation. Hawkins (2008) criticizes Sumner’s view, on the grounds that a version of the authenticity constraint capable of solving the problem of adaptive preferences cannot be incorporated into a subjective theory of well-​being. 68. As I noted in ­chapter 1, those who believe that people have some interests that are not reducible to well-​being may claim merely that we have good reason to want

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In particular, we would need to determine what sorts of influence do, and do not, compromise authenticity. In the absence of a complete account, however, there are two points worth noting. First, if authenticity is to be realistically attainable, then it cannot be compromised by just any form of social influence, since virtually all of our desires are subject to some form of influence. In particular, since the influence of choice architecture is pervasive, it would be implausible to claim that such influence always compromises the authenticity of desires and choices (again, if authenticity is to be something realistically attainable). Second, I take it that if a plausible account of authenticity is to be had, it would imply that the supposedly insidious forms of manipulative influence now under consideration are indeed problematic. Of course, the idea that people have an interest in authenticity is controversial, and some would deny it. But this takes us to a further point. If one thinks that we have no interest in authenticity, or that this interest is not at all frustrated by subliminal messaging and related strategies, then it is not entirely clear why one should think that there is anything especially problematic about such strategies. Suppose, for instance, that one were to accept a simple desire-​based theory according to which people have interests only in the fulfillment of their desires, where the origin or genesis of these desires is wholly irrelevant. If one were to hold such a view, then one may have difficulty showing that there is something uniquely problematic about subliminal messaging or hypnosis as compared to other means of influence. If, however, authenticity matters to personal well-​being, and if subliminal messaging (of the relevant sort) compromises authenticity, then we ought to conclude that such intervention always frustrates one of a person’s interests. This obviously does not mean that it is always morally wrong, all things considered. Instead, according to the pro-​paternalist view, whether such intervention is justified will depend on whether the interests it advances are more important than those it frustrates. There are potentially difficult questions here about precisely how authenticity is to be weighed against other interests.69 On the face of it, however, if authenticity is valuable, then the authenticity of life-​defining desires and aims (for instance,

such authenticity for ourselves, even if it is not best thought of as a component of well-​being. I nonetheless continue to focus on the view that authenticity is a component of well-​being, partly because this view has been discussed by some theorists of well-​being, and partly because it seems independently plausible. 69. For related discussion see Scoccia (1987: 594–​96), who attempts to build an autonomy condition into a desire-​based theory of well-​being.

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regarding one’s career or long-​term projects) would appear to be quite important. I am thus inclined to say that if people have interests in authenticity (or something similar), then, barring exceptional circumstances, it would be wrong to, say, hypnotize one’s child into desiring a certain career, since this would be contrary to the child’s best interest. Yet subliminal messaging or hypnosis might be permissible in some other cases in which a sufficiently important good is at stake. For instance, if it were possible to use nonconsensual hypnosis to prevent a person from engaging in seriously self-​destructive behavior (say, suicide, or perhaps heavy opioid abuse), then it seems to me that it would be permissible to do so. This leads to the second part of my response: even opponents of pro-​ paternalism confront questions about the appropriate use of subliminal messaging and related strategies, and their responses to these questions would also seem to be available to pro-​paternalists. If subliminal messaging is sometimes effective, then presumably it could be used, in soft paternalistic fashion, to deter nonvoluntary imprudent behavior, and presumably it could likewise be used to deter behavior that has adverse effects on the interests of others. As for the first point, imagine that a person behaves imprudently owing to a demonstrably false belief and that, for some reason, the only way to rid him of this false belief is through the use of subliminal messaging. (Suppose, for instance, that one could use subliminal messaging to rid someone with anorexia of his irrational belief that he is overweight.70) As for the second point, subliminal messaging, if effective, might be used not only for paternalistic purposes, but also to encourage people to reduce their greenhouse gas emissions, or to discourage people from cheating on their taxes, or, as in the example given earlier, to deter theft. What should we say about these possible uses of subliminal messaging?

70. I am indebted to David Boonin for this example. To take a second and perhaps more realistic case, some pharmaceutical companies have been developing “nicotine conjugate vaccines,” which “are capable of reducing both the pleasurable and addictive effects of nicotine consumption,” though the vaccines developed so far work only for limited periods of time. See McMahon-​Parkes (2011: 122). Imagine that a permanently effective vaccine were to become available and licensed for use in children. Would it be permissible for one to get one’s child vaccinated? There are two points worth making here. First, there appear to be good soft paternalistic grounds for concluding that parents ought to vaccinate their children. After all, many soft paternalists agree that voluntariness is compromised by addiction (see Beauchamp [2009:  81] and Goodin [1989:  584–​87]; though for concerns about pediatric nicotine conjugate vaccines see Hasman and Holm [2004]). Second, it is difficult to discern a morally relevant difference between the use of a pediatric nicotine conjugate vaccine, on the one hand, and the use, during childhood, of hypnosis and similar strategies to deter tobacco addiction, on the other.

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One might argue that in the sorts of cases just described, there is absolutely nothing objectionable about subliminal messaging (assuming, at least, that it would be effective and used only for worthy ends). If so, however, there would be little reason to think that the use of subliminal messaging is especially objectionable, and likewise little reason to think that cases involving subliminal messaging pose any special problem for the pro-​paternalist view.71 Alternatively, one might argue that there is at least some reason not to engage in subliminal messaging even in the cases just cited, perhaps because it frustrates interests in authenticity, but that such intervention might be permissible, all things considered, if it serves sufficiently important goals. It may then be wrong to use subliminal messaging to prevent or deter relatively trivial harms to others (or relatively trivial nonvoluntary harms to self), but permissible to use such strategies to prevent or deter more substantial harms of the relevant sort. If we accept this view, and if the arguments I have advanced in the preceding chapters are sound, then we ought to make a corresponding claim about the paternalistic use of subliminal messaging—​namely that, as I have suggested, it is permissible if it serves sufficiently important interests.72 Moral concerns about manipulation have been prominent in the burgeoning literature on “libertarian” or preference-​shaping paternalism. My central goal in this chapter has been to show that the manipulation objection is not successful against methods of preference shaping such as the use of defaults, frames, and graphic images. I  have argued that manipulation involves the intentional use of nonrational means of influence, where these means affect the target’s deliberation for the worse. Preference-​shaping paternalism is not generally manipulative in this sense, for two reasons: first, it sometimes encourages people to appreciate the force of reasons relevant to their behavior, and, second, it usually relies on biases that would have affected a person’s deliberation in any case. I have also argued that potentially manipulative forms of influence, such as subliminal messaging and

71. Of course, one might still argue that the use of subliminal messaging for paternalistic purposes is likely to be wrong, either because it is likely to be counterproductive, or because it is insulting, or because it violates a person’s right to control his own life. But these sorts of arguments obviously would not show that there is something especially objectionable about subliminal messaging as opposed to other means of paternalistic influence. 72. Strictly speaking, there is a further possibility: one could argue that subliminal messaging is always wrong, under any circumstances whatsoever. I find this view implausible, however. Surely it would be permissible to use subliminal messaging to prevent a person from doing serious harm to another (or, on my view, himself).

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hypnosis, do not pose any distinctive problem for the pro-​paternalist view I have developed. Of course, even if everything I  have said so far is correct, particular preference-​shaping measures might be misguided on the grounds that they are counterproductive, either because they fail to achieve their stated aims or because, taken in combination, they leave us less self-​reliant or more susceptible to government influence.73 More generally, even if pro-​paternalism is accepted, we can, and should, continue to debate whether the benefits of various proposed measures are worth the costs. Though I have so far said little in defense of any specific acts and policies, I conclude in the following chapter by turning to some possible applications of pro-​paternalism.

73. Blumenthal-​Barby (2013: 187) and Bovens (2009: 214–​15).

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CHAPTER 9

Applications

T

he preceding chapters have defended the pro-​paternalist view that it is always a valid reason in favor of intervention that it would advance some of a person’s interests and, moreover, that intervention is permissible when, all things considered, it serves the target’s best interest (without wronging any third parties). I have argued that this view can withstand the most common objections that have been raised against it. In particular, I  have considered the objections that pro-​paternalism is likely to require a dangerous expansion in the power of the government; that paternalistic intervention is insulting or disrespectful; that pro-​paternalism would “impose values” on people and thereby violate a central tenet of liberalism; and that some forms of paternalistic intervention are wrongly manipulative. I have also attempted to show that popular alternatives to pro-​paternalism confront serious challenges and that pro-​paternalism can be reconciled with a prominent rights-​based moral theory. I  obviously do not claim to have addressed every possible objection that could be raised against pro-​ paternalism, but I do hope to have shown that it is a plausible and promising view. Assuming that it is, we might go on to consider some of its possible implications. That is what I shall attempt to do in this final chapter. It is worth stating at the outset that my goal is not to come down definitively in favor of any particular practice or policy. The justifiability of intervention in a given case will often hinge on empirical issues that lie outside the purview of this book. This chapter merely aims, first, to propose some measures that may seem attractive to pro-​paternalists and, second, to show how pro-​paternalism can usefully be applied by sketching some general guidelines for the evaluation of these measures. The cases I shall consider are the regulation of tobacco (section 9.1) and alcohol (section

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9.2), legal requirements to purchase health insurance (section 9.3), and the duty on the part of medical practitioners to disclose information to their patients (section 9.4). My discussion of these issues will be brief (perhaps too brief) and tentative. If the proposals I suggest are likely to be counterproductive or to have unintended bad consequences, then they may be unjustified even if pro-​paternalism is true. It should thus be kept in mind that someone might reject these proposals without thereby rejecting the view defended in previous chapters.

9.1 TOBACCO

Consider first the regulation of tobacco, especially cigarettes. On the face of it, there is a strong case that cigarettes should be regulated more stringently than they currently are in most countries. The Centers for Disease Control and Prevention estimates that cigarette smoking results in over 400,000 deaths, and 5.1 million years of potential life lost, each year in the US.1 Globally, about 5.4 million people per year die as a result of tobacco use.2 One researcher concludes that “smokers can expect to die 13-​14 years earlier than nonsmokers,”3 though others have put that number closer to ten years.4 In the US, smoking has been declining in popularity in recent years. But it has actually become more popular in some countries, especially those in the developing world.5 Of course, the mere fact that smoking has such deleterious effects on health and longevity does not necessarily show that smoking is imprudent. After all, most smokers derive some pleasure from cigarettes. Still, this interest in obtaining smoking-​related pleasure is probably less weighty than the interest in avoiding the rather severe health-​based consequences of smoking, at least for the majority of smokers. A further reason to think that smoking is typically imprudent is that it often takes place under conditions that tend to signal poor decision-​making.6 Perhaps the most significant 1. Centers for Disease Control and Prevention (CDC; 2008: 1226). According to the CDC estimate, just under 400,000 people died as a result of smoking-​related cancer, cardiovascular disease, or respiratory disease (excluding deaths due to “second-​hand” or environmental tobacco smoke) for each year during the study period, 2000–​2004. Roughly 49,000 deaths per year were attributed to second-​hand or environmental tobacco smoke, 776 infant deaths were attributed to smoking during pregnancy, and 736 deaths were attributed to smoking-​related residential fires. 2. Bitton and Eyal (2011: 109). 3. Pampel (2004: 3). 4. Jha et al. (2013: 341). 5. Pampel (2004: 49). 6. See section 2.4.

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point to be made here is that most smokers apparently desire to quit, and thus even most smokers apparently regard their habit as imprudent.7 The addictive properties of nicotine may tempt them to act against their better judgment—​especially since they can tell themselves that smoking just one more cigarette is unlikely to make much of a difference. Moreover, smokers may irrationally discount the future harms likely to result from their behavior.8 While smokers experience the pleasures of smoking immediately upon lighting up, the health-​related costs are unlikely to make themselves apparent for some time and, in some cases, only once it is too late. It may thus be unconvincing to suggest that smokers can “learn from experience” and thereby prudently decide whether the harms of smoking are worth the benefits. Such a suggestion may be especially problematic because the majority of smokers begin smoking while they are quite young.9 Such considerations may not definitively prove that smoking is always or even usually imprudent. (Indeed, it is difficult to prove that any form of behavior is imprudent.) It is worth noting, however, that our generally accepted practice also seems to presuppose that smoking is rarely advisable. School health curricula, for example, are more or less designed to deter children from taking up smoking. Many local and national governments sponsor anti-​smoking advertising campaigns or “quitlines” to help smokers quit. It is difficult to see why we would be justified in expending resources on such programs unless smoking is typically imprudent. Of course, there may be some people for whom smoking is, on balance, beneficial.10

7.  Centers for Disease Control and Prevention (2011:  1513). Of course, one might argue that most smokers do not “really” desire to quit but merely say that they do. Though I find this response implausible, I lack the space to fully consider it here. 8.  For discussion of various “cognitive defects” that are likely to affect the choice to smoke, see Goodin (1989:  582–​ 83). This discussion is replicated in Goodin (1990: 21–​23). 9. The US Department of Health and Human Services offers the following assessment: Similar to the 1994 Surgeon General’s report on smoking and health, this report finds that cigarette smoking virtually always begins in adolescence or young adulthood, as does the transition to daily smoking. In 2010, among adults aged 30–​39 years, 81.5% of those who had ever tried a cigarette did so by the age of 18 years and 98.0% did so by the age of 26 years. . . . Among those who had ever smoked cigarettes daily, the mean age of initiation was even younger; 88.2% first smoked by the age of 18 years and 99.0% first smoked by 26 years of age. (2012: 164) 10. For instance, research suggests that there appear to be “some neurological and social benefits to smoking for persons with schizophrenia” (Silva [2011: 144]). If so, there may be good reason to exempt people diagnosed with schizophrenia from the policies to be described in what follows.

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If smoking is seriously imprudent for enough people, however, there is a strong paternalistic case for increased regulation. But what sort of regulation? Robert Goodin was among the first to address this issue in the philosophical literature. He offered two sorts of arguments in favor of the increased regulation of cigarettes. A first argument is essentially soft paternalistic: because nicotine is addictive, the decision to smoke (or continue to smoke), on his view, is often substantially nonvoluntary.11 A  second argument appeals to the claim that smoking causes harm to others, especially those exposed to “second-​hand” or environmental tobacco smoke.12 Goodin suggests that the optimal policy in response to these concerns may be “medicalization,” under which tobacco would be available only to authorized users with a prescription. If it were at least somewhat difficult for new (prospective) smokers to obtain prescriptions, a policy of medicalization may reduce smoking, while still enabling the government to “respond humanely to the needs of present addicts.”13 Owing to concerns about the political feasibility of this policy, however, Goodin ends up endorsing a more modest set of policies: a prohibition on cigarette advertising, heavy taxes on tobacco products, and very severe restrictions on smoking in confined public spaces.14 At the time Goodin was writing, one commentator described these latter proposals as being “on the cutting edge of the current wave of smoking regulation.”15 Today, however, Goodin’s more moderate proposals seem very mild. Most have been widely adopted (although some, such as indoor smoking bans, are often defended on nonpaternalistic grounds).16 Such policies have 11. Goodin (1990: 25–​30; 1989: 584–​87). Shapiro (1994) criticizes this argument on the grounds that most people who smoke do so voluntarily. My paternalistic argument in favor of restricting access to cigarettes does not rely on the claim that smoking is typically nonvoluntary. 12. Goodin (1990: chap. 3; 1989: 597–​606). 13.  Goodin (1990:  56). Goodin (1990:  55n49) observes that, ironically, nicotine chewing gum is medicalized in this way, at least in many countries. 14. Goodin (1990: 56, 88; 1989: 594–​96, 605–​606). 15. Rabin (1991: 494). 16.  Such nonpaternalistic arguments are not always consistently applied, however. Consider two illustrations. First, if we are concerned about the effects of environmental tobacco smoke on patrons or employees of bars and restaurants, it seems that we should be at least as concerned about the effects of environmental tobacco smoke on children whose parents smoke at home (see Cooley [2005]). Yet while indoor smoking bans for bars and restaurants have become quite popular, relatively few restrictions have been imposed on parental smoking, at least so far as I  am aware. Second, it is often claimed that cigarette taxes are justified because smokers use more healthcare resources than nonsmokers. In fact, however, it appears that smokers use fewer healthcare resources than nonsmokers, since they tend to die younger. In light of this fact, staunch anti-​paternalists sympathetic to the (empirically misguided) claim that we ought to tax smokers simply because they use more healthcare resources should

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likely contributed to a decline in smoking. Still, one researcher estimates that unless more ambitious measures are adopted, the rate of smoking in the US is unlikely to drop below 15 percent.17 More restrictive policies should thus be considered. It might be tempting to claim that we should “outlaw cigarettes.”18 Such a claim raises a number of further questions, however. First, the government might ban cigarettes by prohibiting their use, or by prohibiting only their sale and manufacture. Second, however this first issue is resolved, a simple ban that would take place “overnight” may well be impracticable or counterproductive, requiring the millions of people who currently smoke to immediately give up the habit or seek tobacco products on the black market. To begin with the first point, it seems to me that a ban on the sale and manufacture of cigarettes is probably easier to justify than a ban on the use of cigarettes. Partly this is because a ban on sale and manufacture would probably impose fewer costs and thus frustrate fewer interests than would a ban on use, if for no other reason than that far fewer people sell or produce tobacco than smoke cigarettes. A ban on sale and (large-​scale) manufacture probably yields more “bang for the buck”: overall tobacco use is likely to be reduced more when a person or company is prevented from producing or selling large quantities of tobacco than when a person is prevented from buying or using small quantities for herself.19 If the sale and manufacture of tobacco were prohibited, it seems likely that a further prohibition on use would not have a significant enough deterrent effect to justify its (possibly substantial) costs. arguably accept the reverse claim—​namely, that we ought to tax nonsmokers because they in fact use more healthcare resources. But this result seems absurd. For relevant discussion, see Wilkinson (1999: 258–​59), who makes a similar point in criticizing the argument that the health needs of nonsmokers should be prioritized over the health needs of smokers. 17. Daynard (2013: 290). 18. See Conly (2013: 170), though Conly does not indicate precisely how cigarettes ought to be outlawed—​whether through prohibitions on use, or prohibitions on sale, or both, or some alternative policy. 19. De Marneffe notes that “although there is good reason to believe that the prohibition of the manufacture and sale of drugs functions to depress drug use substantially, there is also good reason to suspect that the criminalization of use does not have this beneficial effect” (2005: 162). In support of this view, he cites research by MacCoun and Reuter (2001: 72–​100). Elsewhere, de Marneffe (2013b: 34–​35) argues that people have objective interests in being free to exercise certain sorts of control over their bodies, and that the reasons people have to want to be free to use drugs are generally stronger than the reasons people have to want to be free to sell drugs. This view, if sound, would further support the view that prohibitions on use are generally more difficult to justify than prohibitions on sale.

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There is a further point worth making here. Most people seem to believe that cigarettes should be illegal, in some sense, for those below the age of legal majority. But that is not typically because they believe that we ought to punish fourteen-​year-​olds for smoking (except, perhaps, through very modest fines). Instead, the common view seems to be that we ought to deter children and adolescents from smoking by limiting the liberty of others to sell cigarettes to them (and by prohibiting manufacturers from advertising cigarettes to them, and so forth). It seems clear that this policy is designed to secure the best interests of young people, not simply to punish them for their imprudence. From the pro-​paternalist perspective, any anti-​tobacco policy should aim to secure the best interests of prospective smokers. While the case is hardly conclusive, reflection on our current policy with respect to minors may suggest that insofar as our aims are paternalistic (and not, say, moralistic), anti-​tobacco policies ought to chiefly target the manufacture and sale of tobacco. Let us turn now to the second concern: since millions of people already smoke, a sudden shift to a ban may be at best infeasible and at worst disastrous. One way to temper this concern would be to gradually implement a more restrictive policy. According to one promising proposal, the government could prohibit the sale of cigarettes to people born after a certain fixed date, so that it would be illegal to sell cigarettes to younger (and future) generations even after they reach the age of majority.20 Such a policy would have a less abrupt effect on the tobacco industry, and it would enable those already addicted to cigarettes to quit on their own schedules. Moreover, the proposal may be capable of winning political support: initially, the policy would apply only to minors, and few parents would protest a plan to deter their children from smoking.21 Further, as younger (and future) generations reach adulthood, they may be less likely to protest the prohibition on tobacco sales, especially if other policies, such as indoor smoking bans, make smoking less convenient or socially acceptable. To be clear, I  do not want to claim that these considerations are decisive:  perhaps the policy would not be very successful, or perhaps it would frustrate

20.  This proposal is defended by Khoo et  al. (2010), and it is judged to be promising by Daynard (2013: 295). Khoo et al. suggest that once the proposal takes effect, adult smokers born after the cutoff date might be held “legally liable for their actions” (2010: 357). The proposal I favor, by contrast, would prohibit only the sale of cigarettes to those born after the cutoff date. 21.  Khoo et  al. report that a clear majority of respondents to a survey conducted in Singapore supported a proposal “to prevent tobacco being made available to Singaporeans born in and after the year 2000” (2010: 358).

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important interests that I have overlooked, or perhaps some other policy would be superior. Still, it appears promising. Of course, from the pro-​paternalist perspective, one obvious defect of the proposal is that, at least in the short run, it would not do anything to discourage current adults from smoking.22 The proposal might thus be pursued in tandem with other anti-​tobacco measures. For instance, some have suggested that the government should eventually adopt a regulatory standard under which cigarettes must not contain addictive levels of nicotine. Tobacco companies have sometimes manufactured and test-​marketed products free from addictive levels of nicotine, so such a standard may indeed be feasible.23 (Perhaps cigarettes containing higher levels of nicotine could be medicalized in the way recommended by Goodin.) I have suggested these proposals only tentatively, and I  will not even attempt to consider the full range of issues relevant to their justification. There is one objection, however, that merits attention. The objection, in short, is that bans on widely used consumer products simply do not work. Some opponents of stringent anti-​tobacco policies are likely to share the following concern, voiced by a US newspaper: “Such draconian laws didn’t prevent Americans from drinking during Prohibition. Even if cigarettes were illegal, people would find ways to smuggle and smoke, creating a thriving black market. Speak-​easies would become smoke-​easies.”24 What should we make of this complaint? Notice first that it is simply false to claim that Prohibition “didn’t prevent Americans from drinking.” Prohibition appears to have reduced US alcohol consumption, even for decades after it was repealed.25 Of course, Prohibition did not completely eradicate drinking, but by this standard, virtually no public policy is successful. After all, restrictions on the sale of tobacco and alcohol to minors obviously have not completely eradicated the use of these substances by children, yet few people conclude from this that all such restrictions are unjustified. Indeed,

22.  Over the long run it might, by changing attitudes toward smoking so that it appears less attractive. 23. Daynard (2013: 293–​95) offers support for this policy. On the test-​marketing of nicotine-​free cigarettes, he cites Kessler et al. (1996: 989). 24. “Vlad the Extinguisher” (2017). This editorial discusses a recent Russian proposal that resembles the policy I have suggested, under which the sale of tobacco to future generations would be prohibited. For related concerns about anti-​smoking laws, see Le Grand and New (2015: 156). 25. Okrent claims that although Prohibition failed “[i]‌n almost every respect imaginable,” it was successful in at least one: “as a direct result of its fourteen-​year reign, Americans drank less” and, indeed, “continued to drink less for decades afterward” (2010: 373). For a graphic representation of the effects of Prohibition on alcohol consumption, see Cook (2007: 23, fig. 2.2).

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because the sale of tobacco to minors is already legally prohibited, there is already a limited black market in tobacco.26 The complaint, then, cannot be merely that Prohibition created a black market of some sort, nor can it be that Prohibition failed to completely eradicate alcohol consumption. Instead, the objection must be that Prohibition did not do enough good to justify its costs and, moreover, that the same would likely be true of stringent anti-​tobacco laws.27 Prohibition is widely believed to have generated or exacerbated a wide range of problems. Many claim that Prohibition was a boon to organized crime and that it “fostered a culture of bribery, blackmail, and corruption.”28 It may have decreased respect for the law. And so forth. To be sure, these claims might be contested. Nonetheless, even if we conclude that Prohibition was indeed a failure, this should not be taken to show that stringent restrictions on the sale of any potentially harmful consumer product are likewise bound to fail. It all depends on the details of the case. And there are a number of potentially important differences between alcohol policy and tobacco policy. First, national Prohibition probably was not as gradual as the tobacco policies I have suggested: the Eighteenth Amendment took full effect one year after its ratification. Second, while the majority of American adults drink alcohol at least occasionally, only about 20 percent smoke cigarettes. All else equal, we can thus expect that very restrictive alcohol policies would encounter far more resistance than very restrictive tobacco policies. Third, people drink alcohol for different reasons than they smoke cigarettes, and alcohol appears to play a different role in drinkers’ lives than tobacco plays in smokers’ lives. Particularly since indoor smoking bans have been implemented, it is not clear that tobacco plays a significant social role in the lives of most smokers: few people gather together for the specific purpose of smoking cigarettes. By contrast, people often meet at bars, restaurants, or parties to drink, and alcohol is frequently used during celebrations, such as weddings and holidays. (It is easy to imagine the public outcry if the government were to propose a ban on the consumption of alcoholic beverages

26. As Husak observes in discussing drug policy, “[t]‌he retention of a wide array of drug offenses to protect adolescents threatens to undermine many of the practical advantages decriminalization theorists hope to achieve. Those theorists who promise that decriminalization [among adults only] will bring about an end to the evils of the black market must be deluding themselves, since a limited war on drugs will still have to be waged on behalf of adolescents” (1989: 244). 27.  For related discussion of the “does not work” objection, see de Marneffe (2003: 35–​36). 28. Okrent (2010: 373).

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at restaurants and sports arenas. Yet there is now broad public acceptance of similar restrictions on smoking.) Moreover, while people sometimes use alcohol as a means of escape or to “drink away their problems,” smoking does not obviously serve the same function. Because alcohol and tobacco have different effects and are consumed for different reasons and in different contexts, it may be easier to reduce consumption of one than it is to reduce consumption of the other. Finally, and relatedly, drinkers may have different attitudes toward alcohol than smokers have toward tobacco. Few drinkers desire to completely give up alcohol. As we have seen, however, many smokers apparently desire to quit smoking. Partly for this reason, it may be easier for people to see the point of restrictive anti-​tobacco laws.29 The upshot is that it is at least possible that people would be more motivated to go through the black market to procure alcohol than to procure tobacco, especially if tobacco restrictions are gradually phased in. If so, then common concerns about Prohibition may not arise as acutely for anti-​tobacco policies. At the very least, the supposed failure of Prohibition does not show, in the absence of further argument, that we ought to reject paternalistic restrictions on tobacco and other potentially dangerous products.

9.2 ALCOHOL

Let us now set aside familiar concerns about the failure of Prohibition. There is a further, and perhaps deeper, reason for thinking that the ideal alcohol policy is likely to differ in important respects from the ideal tobacco policy. Drinkers vary greatly in their individual patterns of alcohol consumption, and some consume alcohol only lightly or moderately, in ways that are not obviously imprudent. Suppose that we divide Americans aged eighteen and over into deciles according to their average monthly alcohol consumption. Using this strategy, one researcher reports that those in the bottom three deciles consume no alcohol and that those in the fourth and fifth deciles consume, on average, fewer than one drink per month. Beyond that, those in the sixth decile consume an average of 2.7 drinks per month; the seventh, 9.3; the eighth, 26.8; the ninth, 65.5; and the tenth, 316.5—​ equivalent to an astounding average of ten drinks per day.30 In short, while 29. For related discussion, see Conly, who notes that severe restrictions on smoking “would not strike us as a pointless exercise,” since we all know that smoking is harmful (2013: 170). 30. Cook (2007: 57). Cook notes that the “top decile consumes well over half the alcohol in any one year” and that “if the top decile somehow could be induced to cut their

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many adults drink lightly, if at all, some drink extremely heavily. Extremely heavy alcohol consumption is not just unhealthy. It can also destroy personal relationships, impair one’s ability to support oneself, and in general make a mess of one’s life. (It can also adversely affect others, but I will set this point aside for now.) In my view, some people drink so heavily that their best interests would almost surely be served by very restrictive alcohol policies, including even Prohibition. If so, then on the one hand, there is a valid paternalistic rationale in favor of such restrictive policies. On the other hand, it seems likely that such policies would, on balance, frustrate the interests of many light and moderate drinkers.31 The problem here is quite common: a policy that is in the best interests of some people is contrary to the best interests of others. In such a case, how can we decide whether the policy is justified? There are a number of different ways of adjudicating among the competing interests of different people. Correspondingly, there are a number of different views about the conditions under which a policy that is in the best interests of some people might be wrong because it is contrary to the best interests of others.32 One’s view on this issue will affect one’s evaluation of a range of public policies, not only those thought to be paternalistic. Even in the absence of a fully developed view, however, it seems to me that the following claim is very plausible: if a policy would serve the best interests of some people by keeping them from very severe harm, while frustrating only the relatively trivial interests of others, then it is likely to be justified. There is ample room for disagreement about how this criterion might best be met in the case of alcohol policy. One promising option, however, is to simply increase the price of alcohol. As one commentator observes, “[t]‌he evidence is clear—​higher prices will lead to less consumption and less consumption will lead to fewer alcohol-​related problems.”33 Moreover, despite “common notions of addiction,” there is good evidence that price increases “have a direct effect on the prevalence

consumption level to that of the next lower group (the ninth decile), then total ethanol sales would fall by 60 percent” (2007: 57). Notice also that while the data cited are for average monthly consumption, there are likely to be important differences between someone who consumes an average of thirty drinks per month by having one drink per day, and someone who consumes an average of thirty drinks per month by “binge drinking” on a few occasions. 31. Indeed, there is at least some evidence to suggest that moderate alcohol consumption during middle age may have health benefits. See Cook (2007: 169). 32. For relevant discussion, see section 1.2.3. 33. Brooks (2015: 50).

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of alcohol abuse and dependence.”34 Alcohol prices might be increased in at least two different ways. A first tool is the excise tax. An increase in alcohol excise taxes might be supported for any number of reasons, but I suspect that it can be adequately justified on purely paternalistic grounds.35 Some are likely to resist this conclusion. One common objection to paternalistic taxes—​or, as they are sometimes (perhaps misleadingly) called, “sin taxes”—​is that they would apply to everyone, including prudent and responsible users. A further objection is that such taxes are regressive, since they would effectively take a greater share of income from poorer people than from wealthier people. It is not clear, however, that these concerns are sufficient to show that an increased tax on alcohol would be unjustified. Increased taxes may not impose serious economic hardship on moderate drinkers. And while “sin taxes” on alcohol and tobacco are often claimed to be regressive, this concern may be tempered if lower-​income groups are more likely to reduce or eliminate consumption in response to price increases, as some have argued.36 We should also keep in mind that people with lower incomes disproportionately tend to completely abstain from alcohol.37 A second tool for reducing alcohol consumption would be to set a minimum price per unit of alcohol. (The minimum price would be applied to the relevant quantity of ethanol, not to the total beverage volume.) Such a policy would result in price increases for relatively inexpensive drinks (those currently sold below the minimum), which are disproportionately favored by heavy drinkers.38 A  UK report estimates that a modest minimum price per unit could save 3,393 lives per year and reduce the number of annual hospitalizations by 97,900 in that country (though some of

34. Cook (2007: 65). 35. Of course, alcoholic beverages are already subject to excise taxes. In the US, however, the inflation-​adjusted excise tax on alcohol has fallen rather dramatically over the past several decades (Cook [2007: 166–​67]). Part of the reason excise taxes have fallen is that since they are assessed by volume or quantity rather than price, they must be periodically updated and adjusted if they are to keep pace with inflation. 36. See Gruber and Kőszegi (2008); I am grateful to Steve Sheffrin for calling this research to my attention. In a similar vein, Nielsen and Jensen note that although “individuals from low-​income groups tend to be burdened the most” by sin taxes on unhealthy food and beverages, they also “obtain at least as large health benefits as individuals from higher income groups” (2016:  64). Indeed, Nielsen and Jensen (2016: 63) note that some studies have found that the health benefits are greater for lower income groups than for others, though this may vary depending on the product under consideration. 37. Cook (2007: 174). 38. See Donaldson (2008: 22), who cites research from a report funded by the UK government (Brennan et al. [2008]).

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these benefits would accrue to those liable to be harmed by the drinking behavior of others).39 Not surprisingly, some have objected to this policy on the grounds that it may disproportionately burden light and moderate drinkers with low incomes.40 At the same time, however, such a policy may disproportionately benefit heavy drinkers with low incomes, and there may be special reason to be concerned about this group, particularly if we believe that some priority should be given to the interests of the worse off. While I believe that some measures of the sort just described are almost surely justified, a critic may be wary of all paternalistic alcohol restrictions. Notice, however, that difficult questions about alcohol policy remain even if we reject paternalism. Heavy alcohol consumption results in serious other-​regarding harms, such as traffic fatalities, violence, prop­ erty damage, and other crimes. Moreover, soft paternalists have good reason to be concerned about some of the self-​regarding harms associated with alcohol abuse, insofar as they result from impaired and arguably nonvoluntary decisions. Reckoning these harms together, there would appear to be a fairly strong nonpaternalistic (or soft paternalistic) case in favor of increased regulation, though the paternalistic rationales I have been discussing may support more restrictive measures than would otherwise be justified. Still, some critics might ask, if pro-​paternalism supports increased restrictions on tobacco and alcohol, how far does its reach extend? Should the government ban mountain climbing and other risky activities? Again, particular proposals can be considered only on a case-​by-​case basis. But since the mountain climbing example is sometimes mentioned in the debate over paternalism, it merits brief discussion.41 Some people derive a great deal of enjoyment from mountain climbing. Climbing enthusiasts often identify as mountain climbers in a way that very few people identify as drinkers or smokers. Moreover, it may be that mountain climbing, arguably like other athletic pursuits, is intrinsically worthwhile in a way that drinking and smoking are not.42 To be sure, even devoted climbers

39. Donaldson (2008: 22), citing Brennan et al. (2008: 126). These data are for a minimum price of 50p (UK) per unit. (A unit is defined as 10 mg of ethanol, equivalent to a small glass of wine.) A higher minimum price of 70p was estimated to save 8,100 lives per year (Brennan et al. [2008: 126]). 40. Walker (2010: 110). 41.  Husak (1989:  96), for instance, draws an analogy between paternalistically motivated drug laws and prohibitions on mountain climbing. See also Smith (2002: 234). 42. D. Regan (1983: 120) makes several of the same points offered in this paragraph, in attempting to distinguish mountain climbing from cigarette smoking.

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have interests in avoiding the injuries that may be caused by mountain climbing. But many mountains pose relatively low risks of serious harm, especially for knowledgeable climbers who use appropriate safety equipment. It thus appears to me that a blanket ban on mountain climbing would almost surely be unjustified, since the various interests it would thwart are more important than those it would advance or protect. Nonetheless, some paternalistic restrictions on mountain climbing probably are justified. A policy under which people who plan to climb treacherous routes are required to use certain types of safety equipment can probably be justified on the grounds that their interest in being free to climb without this equipment is less weighty than their interest in avoiding serious injury.43 Further, it may be that certain activities are so dangerous that they should be prevented if the costs of doing so are not too great. Imagine, for instance, that a certain climbing route has proven fatal for the majority of experienced climbers who have attempted it, and that people can be deterred from accessing this route if a simple barrier is placed across it. A policy under which the government imposes such a restriction may be controversial, but it does not seem obviously absurd (nor is it appropriately described as a “ban” on mountain climbing).44 More generally, while pro-​paternalism would support restrictions on some imprudent behavior, it would not support a ban on all potentially risky behavior, as its critics have sometimes alleged.

9.3 COMPULSORY INSURANCE

Let us now turn to a different sort of policy, one that is perhaps more likely to be endorsed by opponents of paternalism:  laws requiring that people 43. I here depart from Le Grand and New: “Some people might reason that unaccompanied, unprepared climbing is just the right way to achieve their ends of climbing bliss, and they might be right (for them)” (2015: 103). They go on to argue that policy makers “must make every effort to gather empirical evidence that distinguishes those choices on which people change their mind from those that constitute a fundamental aspect of character” (Le Grand and New [2015: 103]). On my view, even if someone’s choice to engage in “unaccompanied, unprepared climbing” reflects a “fundamental aspect” of her character, this choice might nonetheless be subject to permissible interference. 44. Some of the points just made can obviously be applied to other cases. Consider, for instance, a policy under which the government closes public beaches during dangerous riptides or closes public highways during dangerous snowstorms. These policies seem to raise the same concerns about paternalism as the suggested restrictions on mountain climbing. Moreover, such policies do not seem obviously absurd. Few of us would protest a policy under which the government closes beaches during dangerous tides on the grounds that the government has no right to “ban” swimming.

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purchase certain types of insurance for themselves. Of course, some compulsory insurance laws, such as those mandating that motorists be covered for injuries they may cause others, seem to have a fairly obvious nonpaternalistic justification. I  want to focus, however, on policies such as those under which each adult citizen is required to pay for health insurance that will cover (some of) the costs of her own medical treatment.45 Some such requirements strike many people as quite reasonable. Yet these policies are sometimes criticized on the grounds that they are paternalistic. Indeed, perhaps the most controversial provision of the US Affordable Care Act has been its “individual mandate,” which requires citizens to purchase health insurance for themselves.46 Unsurprisingly, I believe that there is a simple paternalistic argument in favor of compulsory health insurance. People who lack insurance are more likely to delay or avoid seeking necessary medical care. If they do receive such care, the consequences for them may be financially disastrous. Of course, the choice to forgo health insurance is not necessarily imprudent. Some people may be unable to purchase health insurance without sacrificing other basic needs. Yet this problem could presumably be avoided through subsidies that make insurance more affordable. Many people who reject this paternalistic line of argument would nonetheless hold that compulsory insurance laws can be justified on wholly nonpaternalistic grounds. Of course, from the pro-​paternalist perspective, it would be a rather happy coincidence if some policy that can be justified on wholly paternalistic grounds can also be justified on wholly nonpaternalistic grounds. Nonetheless, I want to raise several doubts about nonpaternalistic arguments for compulsory insurance, partly to show that some staunch anti-​paternalist views may have implications that at least some of their proponents would find unwelcome. Consider a system under which each person is given a reasonable opportunity to purchase affordable health insurance but no one is required to do so. Under such a system, some people would presumably choose to forgo health insurance. Suppose that the government deals with this fact by requiring everyone to purchase health insurance. On the face of it, such a policy seems designed to protect those who would imprudently choose to

45. This policy may be relevantly like some others, however: consider a policy under which homeowners who live in flood plains are legally required to purchase flood insurance. 46.  The late Supreme Court Justice Antonin Scalia famously compared the individual mandate to a requirement that citizens buy broccoli. For discussion of this metaphor and its influence, see Stewart (2012).

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forgo insurance under an optional system. And the most plausible rationale for such a policy would thus appear to be paternalistic.47 It might be objected, however, that if someone declines to purchase insurance and subsequently needs expensive treatment, then the rest of us will have to pay for it. According to some anti-​paternalist defenders of compulsory insurance, we will “have” to pay in the sense that we will be morally required to provide necessary medical care.48 And if a person’s choice not to insure herself is likely to put us in a position in which we will be morally required to pay for her care, then, the argument goes, we might be justified in intervening for our sake, not (only) for hers. This rationale in favor of compulsory insurance laws would appear to be nonpaternalistic. There is a complication for this argument, however: someone who would voluntarily forgo insurance might be willing to renounce her right to expensive medical care. Suppose that someone were to argue as follows: “I do not want to purchase insurance. If I need medical care, I am willing either to pay the costs myself or to go without. I hereby release others from any obligation they might have to assist me.”49 (We might imagine that people would be required to sign a statement to this effect in order to forgo health insurance.) How could there be a nonpaternalistic argument for requiring people such as this to purchase health insurance? It might be replied that people cannot renounce or alienate their rights to assistance in the event of a medical emergency. But we should ask why people cannot renounce their rights to medical care. If the claim is that people cannot renounce such rights because doing so would be contrary to their best interests, then the argument for compulsory insurance looks to be paternalistic after all: the argument, in short, would be that people must purchase insurance because it is contrary to their best interests for them to

47. Someone might object that one reason to require everyone to purchase insurance is so that the healthy can in effect subsidize the less healthy. (I am grateful to Daniel Groll for raising this point.) Yet compulsory insurance is not the only way, and arguably not the least restrictive way, to subsidize health care for people with lower incomes (or higher healthcare costs). In response, one might point out that if people are not required to purchase insurance, they will wait to purchase it until they are sick, at which point the (fair) cost of insurance will be far higher than what they are able to pay. But this argument in favor of compulsory insurance may appear to be paternalistic (if it rests on the idea that people should be required to purchase insurance now because they will be glad they did later) or else may collapse into the nonpaternalistic argument that I go on to criticize. 48. See Bou-​Habib (2006: 251–​56) and Anderson (1999: 330), though Anderson’s discussion is connected with her broader defense of what she calls “democratic equality,” a view that I cannot fully consider here. 49. For a similar statement of the general concern discussed in this paragraph, see Bou-​Habib (2006: 257).

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waive their rights to medical care. The challenge confronting proponents of nonpaternalistic compulsory insurance, then, is to offer a nonpaternalistic reason for concluding that people cannot waive their rights to assistance. And this is precisely what some have attempted to do. Elizabeth Anderson claims that each citizen has an “inalienable right to  .  .  .  aid in an emergency,” on the grounds that a democratic society must “secure the conditions of everyone’s freedom.”50 The state secures the conditions of everyone’s freedom when it provides each person with the capabilities to achieve certain functionings. The relevant capabilities, on Anderson’s view, are those necessary to avoid oppression and participate as an equal in a democratic society. Because society is obligated to ensure that each person has the relevant capabilities, the argument goes, “inalienable rights” to health care and other forms of aid are based “on what others are obligated to do rather than on the right bearer’s own subjective interests.”51 Thus, to take an example, Anderson argues that even if most smokers would prefer cheaper cigarettes to guaranteed treatment for lung cancer, the government might justly tax cigarettes to cover the additional costs (if any) that smokers impose on the healthcare system.52 While a full discussion of Anderson’s capabilitarian view would take us too far afield, there are two points worth making in the present context. First, even if the inalienability of rights to health care is not based on the right-​bearer’s “own subjective interests” or desires, it might be based on the right-​bearer’s own objective interests, in which case the argument for inalienability would seem to be paternalistic. Second, if the argument for inalienability is not paternalistic in this way, it may rest on a form of moralism. Consider Anderson’s claim that “[a]‌ ccess to the egalitarian

50. Anderson (1999: 329, 330). Anderson appears to support social insurance, rather than compulsory insurance. Under a social insurance scheme, each citizen contributes money to a large social pot, which is then used to pay for the good in question. An example would be US-​style Social Security. Under a compulsory insurance scheme, each citizen is required to purchase insurance for herself. It may appear that compulsory insurance is paternalistic in a way that social insurance is not. I am unsure whether there is an important difference here. As Shapiro notes in a discussion of old-​age insurance, there are several ways in which “CP [compulsory insurance] involves greater trust of the citizenry than SI [social insurance]: citizens have much more freedom within the system to choose their own particular type of retirement plan, how much to invest (provided it is not below a minimum), where to invest, when to retire, etc.” (1997: 135). It might thus be at least somewhat surprising if one were to conclude that CP raises serious concerns about paternalism while SI does not. 51. Anderson (1999: 319). 52.  Anderson (1999:  328). As I  noted, this argument may founder on empirical grounds, since smokers probably do not use more healthcare resources than nonsmokers, but that is irrelevant to Anderson’s main point.

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capabilities is . . . market-​inalienable: contracts whereby individuals irrevocably transfer their fundamental freedoms to others are null and void.”53 Though Anderson recognizes that this position may seem paternalistic, she argues that it is instead grounded in the obligation to respect each person’s dignity—​a dignity that is “not conditional upon anyone’s desires or preferences, not even the individual’s own desires.”54 Yet the claim that liberty should sometimes be restricted in this way for the sake of human dignity or related values, as distinct from individual interests, may involve a kind of moralism that many philosophers would find at least as controversial as paternalism.55 A somewhat different nonpaternalistic argument for the inalienability of rights to assistance is offered by Paul Bou-​Habib. This argument relies on the claim that autonomy is impersonally valuable, or that autonomy is valuable even apart from its effects on anyone’s interests or well-​being, in roughly the same way that “parts of the natural world” and “works of art” are sometimes thought to be.56 If autonomy is valuable in this way, then we might have a duty to preserve or protect it. And Bou-​Habib suggests that this is why a person may not waive her right to certain forms of aid: “If there is a duty to preserve the intrinsic value of autonomy, then the imprudent person may not waive his moral right to receive aid because his doing so would contravene his duty to preserve his own autonomy.”57 This rationale would appear to be nonpaternalistic. This argument raises a number of problems. It certainly appears to rely on a controversial form of moralism:  it holds that some rights are nonrenounceable simply because people have moral duties to preserve their own autonomy, independent of anyone’s interests. Moreover, although the argument is not paternalistic, it may have implications that most anti-​paternalists would reject. Bou-​Habib’s argument seems to hold 53. Anderson (1999: 319). 54. Anderson (1999: 319). 55.  This is how Midtgaard (2015:  362–​ 64) interprets Anderson’s argument. Midtgaard goes on to argue, plausibly in my view, that this rationale is unlikely to justify the restrictions on liberty involved in social insurance schemes and, moreover, that it seems weaker than the alternative paternalistic rationale. On this latter point, see also de Marneffe (2006: 82). 56. Bou-​Habib (2006: 260). 57. Bou-​Habib (2006: 261–​62, emphasis added). Strictly speaking, Bou-​Habib argues that the impersonal value of autonomy may be relevant in either (or both?) of two ways. First, it might “serve as a non-​paternalistic reason for why the imprudent person may not waive his right to receive aid” (Bou-​Habib [2006:  261]). Second, it might show that even if a person has waived his right to assistance, we might nonetheless be obligated to assist him (Bou-​Habib [2006: 261]). For the sake of simplicity, I will construe Bou-​Habib’s argument in the first of the two ways just described.

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that a person’s duty to preserve her own autonomy is what ultimately explains why she can be compelled to purchase insurance. If so, however, then there may be a strong case in favor of other forms of intervention that prevent people from harming themselves in ways that diminish autonomy. After all, if a person would contravene her duty to preserve her own autonomy by waiving her right to necessary medical care, then she would presumably likewise contravene this duty by behaving in ways that are likely to result in permanent illness or injury. And if it is replied that we cannot limit individual liberty in order to ensure that a person adheres to this duty, then Bou-​Habib’s argument may be in jeopardy. Finally, note that there may be some cases in which we can avoid the necessity of costly aid only through the sorts of liberty-​limiting intervention commonly opposed by anti-​paternalists. Suppose, for instance, that most people who set out to climb an especially dangerous mountain are likely to require an expensive rescue—​a rescue so expensive that “rescue insurance” is unaffordable for virtually everyone. Under these circumstances, the supposedly nonpaternalistic argument we have been considering may imply that the government could use liberty-​limiting means to prevent just about everyone from climbing the mountain, since otherwise we will have to either foot the bill for an expensive rescue or fail in our obligation to assist others.58 I  suspect, however, that many anti-​paternalists would be reluctant to accept this judgment. It seems to me, then, that putatively nonpaternalistic rationales for compulsory insurance confront serious challenges and are less attractive than the alternative paternalistic rationale. To be clear, I do not claim to have conclusively shown that compulsory insurance policies can be justified only on paternalistic grounds. Nonetheless, to the extent that such policies are most naturally supported by paternalistic arguments, those who embrace such policies may at least have good reason to think twice before endorsing an uncompromising anti-​paternalist position.

58. Perhaps there is a further possibility: if the rescue operation would be expensive enough, it might be so costly that society would not be required to undertake it. Indeed, Bou-​Habib is careful to point out that one need not rescue another person if the costs of doing so would be “prohibitively high,” though he (sensibly) does not say much specific about what makes a cost prohibitive (2006: 254). It seems at least a little odd, however, to think both (a) that the government is justified in mandating insurance for conditions that are not all that difficult or expensive to treat, but (b) that the government is not justified in mandating insurance for conditions that are very difficult and expensive to treat. This may provide a further reason for thinking that the paternalistic argument for compulsory insurance is more plausible than the nonpaternalistic argument offered by Bou-​Habib.

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[ 246 ]  In Our Best Interest 9.4 THE WITHHOLDING OF MEDICAL INFORMATION

So far, I have focused mainly on the large-​scale policy implications of pro-​ paternalism. But paternalism is relevant not only to social policy but also to interpersonal interactions and relationships. One sort of relationship that has figured prominently in debates over paternalism is that between a medical professional and a patient. Volumes have been written about medical paternalism, and I will only be able to scratch the surface here. To narrow the boundaries of the discussion, I shall focus on just one issue: the deliberate withholding of medical information from patients. Reflection on this issue has led some to reject what they call the “paternalistic model” of the physician–​patient relationship. A “model” of the physician–​patient relationship is understood here as a “paradigm” or “a way of conceiving” of this relationship.59 The paternalistic model is commonly thought to give practitioners “virtually unlimited discretion about what to divulge to patients,” so that a physician would have the discretion, for instance, to withhold a cancer diagnosis from a patient merely because he believes that the patient would be upset by bad news.60 There are indeed a number of problems for the view that physicians ought to accept the paternalistic model, at least if they would then regard themselves as having wide discretion about what to divulge. First, even if some people are driven to severe depression or suicide by bad news such as a cancer diagnosis, many obviously are not. Given the nature of contemporary medical practice, a physician may rarely be able to reliably judge how a given patient would react to bad news. To refrain from revealing a diagnosis on the grounds that it would cause someone serious harm may thus be to generalize from worst-​case scenarios.61 Second, and relatedly, although 59. The quoted passages are from Buchanan, who rejects the “medical paternalistic model” (1978: 73). Emanuel and Emanuel consider different models of the physician–​ patient relationship to involve “different visions of the essential characteristics of the physician–​patient interaction” (1992: 2221). Emanuel and Emanuel argue that while the paternalistic model may be appropriate in limited situations (for instance, emergency situations in which there is no way to secure the patient’s consent), the alternative “deliberative model” characterizes the “ideal” physician–​patient relationship (1992: 2225). 60. The quoted passage is from Beauchamp and Childress (2013: 302), though they do not ascribe this view to a distinctively paternalistic model. Beauchamp and Childress observe that, until fairly recently, medical codes of ethics did allow physicians broad discretion about when to tell the truth. Perhaps surprisingly, even Mill suggests that it may sometimes be permissible to withhold “bad news from a person dangerously ill” (1861: II.23, 223). 61. Buchanan (1978: 67).

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physicians are medical experts, they possess no special expertise about patients’ nonmedical interests. For instance, a patient who has a terminal illness might have good reason to get her financial affairs in order, or to quit work and spend more time with her family, or to take a long-​desired vacation. And she may be deprived of the ability to make prudent choices about these matters if her physician withholds a diagnosis or other relevant information.62 Third, patients may sometimes benefit medically when they are adequately informed.63 At the very least, a patient may be more likely to participate in treatment or preventive care when she knows why it is recommended. Fourth, the withholding of information can diminish trust, which is an important ingredient of an effective physician–​patient relationship.64 Indeed, if physicians were to routinely withhold information from patients, the practice would be self-​defeating, since patients would no longer trust their physicians. All the considerations just mentioned point out various ways in which it would be contrary to the interests of patients for physicians to accept the paternalistic model (assuming, again, that physicians who accept this model would regard themselves as having broad license to withhold the truth). It seems likely that these considerations, among others, show that patients would be worse off under a paternalistic model than under some alternative model.65 If so, then physicians have good reason to eschew the paternalistic model, understood as a way of conceiving of the physician–​patient relationship. But this conclusion would not pose a problem for pro-​ paternalism. If patient interests are better served when physicians reject the paternalistic model in favor of some alternative, then even pro-​paternalism would imply that we ought to discourage physicians from adopting this way of viewing their relationship to patients.66 Even if it is usually wrong for physicians to withhold information from their patients, however, it probably is not always wrong. Consider three

62. Goldman (1980: 60). 63. For discussion, see Bullock (2016: 414–​15). 64. Beauchamp and Childress (2013: 303). 65.  Thus Buchanan, who discusses several of the concerns mentioned in the previous paragraph, characterizes his central argument against the paternalistic model as “strictly consequentialist” (1978: 76). 66. Likewise, to take an analogy, it is often pointed out that if one tends to be less happy when one thinks constantly of one’s own happiness, then one has prudential reason to stop thinking in this way, even if the most prudent thing to do is whatever makes one happiest.

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[ 248 ]  In Our Best Interest

(nonexhaustive) sorts of cases in which there is at least arguably a strong paternalistic rationale in favor of nondisclosure. In the first sort of case, a practitioner temporarily withholds information, or discloses information only gradually or in stages, because of some unique feature of the patient’s situation. Suppose, for instance, that an apparently healthy young man visits a doctor for a routine physical examination. During the appointment, the patient tells the doctor that he is leaving town for an important job interview on the next day. The day after the appointment, the doctor’s office receives some of the patient’s lab results, which are inconclusive but reveal a potentially serious medical problem for which further testing is necessary. Under these circumstances, it might well be advisable for the doctor to wait to inform the patient until the patient has returned from the job interview.67 Likewise, it might sometimes be permissible for practitioners to use a form of “staged disclosure,” in which complete information about a patient’s prognosis is given gradually over time.68 Imagine a patient who is beginning a long process of rehabilitation after a stroke or serious car accident. Suppose that although the patient’s prognosis is uncertain, his physician believes that he can make a significant recovery but is unlikely to regain the full use of his arm. The physician might initially emphasize the uncertainty of the prognosis or the possibility of progress and wait to discuss the patient’s arm, perhaps until the patient has started physical therapy and the prognosis has become more certain. Whether such a choice is justified is likely to depend on the details of the case—​for instance, on how the timing of the disclosure is likely to affect the patient’s determination to complete a helpful course of physical therapy. In a second sort of case, a practitioner learns information that is unrelated to the primary purpose of his interaction with the patient and that, if disclosed, would be likely to upset the patient without affecting the patient’s decision-​making. Consider the following case: a young woman decides that she would like to donate a kidney to her father, who is currently on dialysis.69 Testing reveals that the woman is a suitable donor, but it also reveals

67. For a somewhat similar case, see Beauchamp and Childress (2013: 221–​22). Gert and Culver (1979: 204) offer a more dramatic case in which temporary nondisclosure may be justified: a person in critical condition after a car accident is not immediately informed that one of her relatives died in the accident. 68.  The “staged disclosure” terminology, and the example to follow, are taken from Beauchamp and Childress (2013: 306). A somewhat similar case is discussed in Thomasma (1994: 117–​18). 69. A version of this case is discussed in Sokol (2006).

App l i c at i o n s  

[ 249 ]

that she is not genetically related to her (social) father. Suppose that the woman has a very close relationship with her father and seems to be unaware that they are not biologically related. Depending on the details of the case, there may be a strong argument that this information should not be disclosed: it may upset the woman to no purpose, especially since her aim in seeking medical guidance was not to establish paternity. A third sort of case involves what is sometimes called the nocebo effect: the disclosure of adverse side effects can itself sometimes make these side effects more likely to occur.70 In one study, some men taking a drug to control symptoms associated with enlarged prostate were informed that it can carry a risk of sexual side effects, while others taking the drug were not provided with such information. Of the first group, 44  percent reported sexual side effects; of the second group, just 15 percent did.71 Of course, there may be ways to combat the nocebo effect without withholding information; perhaps practitioners should instead attend more carefully to the way in which they inform patients.72 Nonetheless, it is at least possible that in some cases, the appropriate response to the nocebo effect is (at least temporarily) to withhold certain information. As my discussion illustrates, it is impossible to lay down a simple set of rules indicating when information ought to be withheld. The choice to withhold information must be sensitive to contextual features that vary from case to case. While we ought to reject a system under which practitioners regard themselves as having virtually unlimited discretion about what to divulge to their patients, there may be some individual cases in which practitioners are justified in withholding information, at least temporarily. Notice, however, that even proponents of soft paternalism may have good reason to support withholding information in some of the cases I  have described. This is because someone might not want certain

70. For relevant discussion, see Colloca and Miller (2011), cited in Bullock (2016: 415). 71.  Enck and Häuser (2012). For a case study involving a similar issue, see Arras (1999). 72. This suggestion is advanced in Colloca and Miller (2011). It is worth noting that some anti-​paternalists may deny that withholding information in this sort of case raises moral concerns about paternalism. On Quong’s view, for instance, an act is paternalistic only if it is motivated by a “negative judgment” about the target’s ability to prudently manage her affairs (2011: 80). A physician who withholds information only out of concern for the nocebo effect may not be motivated by such a negative judgment, since susceptibility to this effect may not be under the patient’s control. Similar points may sometimes apply to the use of placebos. The deceptive use of placebos, however, may be worrisome because it is likely to erode trust in medical professionals. “Open-​ label placebos” may not raise this concern (Annoni and Miller [2016: 94–​97]).

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[ 250 ]  In Our Best Interest

types of information, or someone might want certain types of information to be divulged only at an appropriate time. (Thus, the patient in our first example might not want his doctor to inform him of a potentially serious diagnosis on the day of an important job interview.) Notice also that, just as there may sometimes be paternalistic reasons to withhold information, there may sometimes be paternalistic reasons to disclose information to people who do not want it, as when such disclosure would be likely to improve their decision-​making.73

9.5 CONCLUSION

The discussion of this chapter has been somewhat tentative. My central aim has been to illustrate how pro-​paternalism might be applied to a number of cases, not to offer an unqualified defense of any particular proposal. Nonetheless, this chapter supplements the overall argument of the book, partly by showing that the implications of pro-​paternalism may be more plausible than its critics commonly suppose. On reflection, it seems to me that some of the proposals I have tentatively suggested in this chapter are attractive and can be justified only on paternalistic grounds. I am willing to live with the implications of pro-​paternalism. Of course, whether intervention is justified in any given case will depend on a number of considerations. Pro-​paternalists can obviously disagree among themselves about empirical questions—​for instance, about the likely consequences of some policy. Moreover, pro-​paternalists can disagree about what interests people have and about how competing interests are to be weighed against each other. Before taking aim at pro-​paternalism, critics of the proposals I have discussed should consider whether their opposition may derive from either of these sources. Some concerns about the implications of pro-​paternalism derive from a deeper source, however. It is commonly thought that even if intervention in a person’s self-​regarding affairs could be known to serve her best interest, without wrongly burdening others, it might nonetheless be impermissible. 73.  Cullen and Klein (2010:  126–​27), among others, hold that a physician should honor a patient’s request to remain ignorant. They make several qualifications to this claim, but most involve cases in which the physician discloses unwanted information for the sake of third parties (for instance, in which a physician informs a patient that the patient is HIV-​positive, out of concern for the patient’s sexual partners). Bullock (2016:  416–​22) offers a sensitive discussion of some of the conditions under which patients should be paternalistically provided with information that they do not want.

App l i c at i o n s  

[ 251 ]

This is the claim that I have attempted to challenge. If common objections to paternalism are inadequate, and if common anti-​paternalist views are subject to serious problems of their own, then one sensible conclusion to draw is that there is nothing distinctively objectionable about paternalism. While we should continue to debate the merits of various policies and practices, we ought to accept paternalism in principle. This conclusion may still strike some critics as unpalatable, but I  believe that it has a strong claim to our acceptance.

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INDEX

addiction, 230, 231 Affordable Care Act (US), 241 alcohol policies, 6n12, 7, 105, 234–​39 Anderson, Elizabeth, 56, 243–​44 anti-​paternalism defined,  18–​19 moderate versus absolutist, 20, 57, 124–​25,  149 Archard, David, 44 Arneson, Richard, 37n17, 142, 150n18, 153n26 authenticity, 223–​25, 226 autonomy hard versus soft paternalism and, 147–​48, 149,  192–​93 impersonal value of, 18n38, 244–​45 interest in, 12–​13, 54 liberal neutrality and, 88 religious belief and, 116 rights thresholds and, 140–​44 right to personal sovereignty as, 54n62, 61, 146–​47, 198 Baron, Marcia, 211n38, 215n48, 220n58 Beauchamp, Tom, 38, 246n60, 248n68 bias, cognitive imprudence, as source of, 44, 176 libertarian paternalism and, 199, 201, 203, 208, 209, 217–​18 Boonin, David, 163n38, 223n66, 225n70 Bou-​Habib, Paul,  244–​45 Brennan, Samantha, 99n26, 122n10, 123–​28, 129n26, 132n32, 141n43 bridge case, 145, 150–51, 152–53, 164, 165, 168–69 Brock, Dan, 153n26, 179n30 Buchanan, Allen, 246n59, 247n65 Bullock, Emma, 250n73

cafeteria case, 19, 203, 205n25, 206–207, 209, 216–17, 219–20 Carter, Ian, 81–​82 Cave, Eric, 210, 213n43 children medical treatment of, 115–​16 moral paternalism and, 109 soft paternalism and, 19–​20, 94, 145,  171–​72 tobacco policies and, 230, 233,  234–​35 Childress, James, 246n60, 248n68 choice architecture nonpaternalistic uses of, 219–​20 paternalistic uses of, 199–​200, 201, 203, 216 See also libertarian paternalism; manipulation Cholbi, Michael, 190 Christian Scientists, 111, 114, 133n34 Chwang, Eric, 186n47, 209n33 cigarettes. See smoking; tobacco policies Clarke, Simon, 111n53 competence, 41, 43–​44, 145–​46, 149, 171–​ 72. See also ignorance exception, the; impairment exception, the Conly, Sarah, 52n56, 104–​107, 236n29 consensual harm, 26, 191n60 consent actual (as inconsistent with paternalism), 15, 16, 107, 109–​10,  191 hypothetical informed, 133–​34n34, 149,  159–​62 hypothetical prudent, 194–​96 hypothetical unimpaired, 179, 186, 189, 191–​92,  194–​96 subsequent, 186n47

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[ 268 ] Index consequentialism absolutist anti-​paternalism and, 42–​43 Mill’s arguments against paternalism and,  31–​39 rule-​,  38–​41 separateness of persons objection to,  127–​28 See also utilitarianism Cornell, Nicolas, 58n6, 63n19, 67–​68, 71 criminal prohibitions, 26–​28 Cullen, Susan, 250n73 default rules, 199, 201, 202, 203, 208, 217 de Marneffe, Peter, 7n13, 10n24, 17n35, 62n16, 64n22, 69n36, 73n45, 80n56, 104n40, 232n19, 235n27 deontology, moderate. See rights thresholds desire-​based account (of the hard/​soft distinction),  185–​96 desire-​fulfillment theories (of well-​being), 9, 105–​106, 134, 187, 194, 224 direct (versus indirect) paternalism, 26–​27,  232–​33 discrimination, arbitrary, 58 double effect, doctrine of, 63–​64, 65–​66 drug laws, 6–​7, 19, 26–​27, 109–​10, 235n26. See also alcohol policies; tobacco policies Dworkin, Gerald, 13n28, 21–​22, 46n41, 87, 194n65 Emanuel, Ezekiel, 246n59 Emanuel, Linda, 246n59 ends-​related paternalism, 103–​104, 106, 187 equality, moral, 75–​77, 79–​80, 81, 83 exploitation, 215, 218 expressive objection, the, 67–​75 Feinberg, Joel definitions of paternalism, view on, 21 hard and soft paternalism, view on the distinction between, 147–​49, 177 ignorance as justification for soft paternalism, view on, 163, 164–​65,  168–​69 impairment as justification for soft paternalism, view on, 173, 175, 179, 183 motorcycle helmet policies, view on, 157

rights to personal sovereignty, view on, 146–​47, 198 tobacco policies, view on, 28n65 variable standards conception of voluntariness of, 147–​48, 180–​81 framing effects, 199, 201, 203, 204–​205,  208 Gambler (case), 155–56 Goodin, Robert, 230n8, 231, 234 Gordon-​Solmon, Kerah, 54n63 Grill, Kalle, 20n42, 23n55, 193n62 Groarke, Louis, 15n32, 94n20, 187n49 Groll, Daniel, 39n20, 79n53, 101n29 gun control laws, 101 Gutmann, Amy, 115n67 hard paternalism distinction between soft paternalism and, 20, 146–​51, 159, 196–​97 hypothetical prudent consent and, 194 ill-​informed choices and, 152–​54, 155–​ 57, 158, 161–​62 See also soft paternalism harm-​to-​others principle, 6, 25, 110, 225–​26,  231 Hausman, Daniel, 204, 206, 217n51 hedonism, 8, 9, 14–​15, 47–​48, 49, 108 Hodson, John, 179–​80 Hooker, Brad, 39–​40 Husak, Douglas, 21n45, 27, 87n5, 235n26, 239n41 ignorance exception, the culpable ignorance and, 151–​59 defined, 146 hypothetical consent and, 159–​62 voluntariness of assumptions of risk and, 148, 163–​69 See also soft paternalism impairment exception, the defined, 146, 170 desire-​based account of soft paternalism and, 185–​96 hypothetical consent and, 191–​92,  194–​96 illustrations of, 172–​73 imprudence and, 174–​80 voluntariness and, 148, 175, 180–​85 See also soft paternalism

Index  [ 269 ] imprudence, definition of, 174 incentives, paternalistic, 22, 57 indirect (versus direct) paternalism, 26–​27,  232–​33 individuality,  47–​53 insult objection, the expressive version of, 67–​75 motive-​based version of, 60–​67, 205, 220 stand-​alone argument against paternalism, as, 56–​57 status-​based version of, 75–​85 insurance, compulsory, 240–​45 interests accounts of, 8–​11 admissible versus inadmissible, 14–​16,  107–​11 best, 4, 11 interpersonal conflicts among, 16–​18 pro-​paternalism as neutral on accounts of, 11, 12–​13 See also well-​being intervention, definition of, 4 Jehovah’s Witnesses, 101–​102, 111–​16 Kagan, Shelly, 130n29, 177 Kantianism, 87, 193n64 Killmister, Suzy, 77n51 Klein, Margaret, 250n73 Kleinig, John, 171n2 Le Grand, Julian, 61n13, 104n38, 105, 240n43 libertarian paternalism, 19, 22, 199, 201–​203. See also manipulation manipulation account of, 210–​16 objection to libertarian and preference-​shaping paternalism, 200, 204–​205, 206–​209,  216–​20 means-​related paternalism, 103–​107,  187 Midtgaard, Søren Flinch, 244n55 Mill, John Stuart arguments against paternalism of, 33–​36, 43–​44,  47–​48 bridge case of, 145, 150–​51, 152–​53, 164, 165, 168–​69

higher and lower pleasures, on the distinction between, 49 incompetence as exception to anti-​ paternalism of, 19, 38, 145 individual’s authority within self-​regarding sphere, view on, 1,  32–​33 Mills, Claudia, 202n16 misapplication, argument from, 33-​35 mixed (versus unmixed) paternalistic rationales, 7, 98, 139 moralism, 15, 103n30, 243–​44 moral paternalism, 15–​16, 102–​103, 104 motive-​based objection, the, 60–​67, 205, 220 motorcycle helmets, 157–​59 mountain climbing, 239–​40, 245 multiplier view (of rights thresholds), 130–​32,  141n43 net interests principle, the, 129–​30 neutrality, liberal, 89–​95, 102–​103, 108n50,  109–​11 New, Bill, 61n13, 104n38, 105, 164, 165, 240n43 nocebo effect, 249 Noggle, Robert, 212–​13, 215 Nozick, Robert, 134n34, 143–​44n47 nudges, 19, 22, 199, 201–​203. See also manipulation objective list theories, 9, 195n70. See also perfectionism omissions, paternalistic, 19, 22, 66 paternalism definitions of, 21–​24 direct versus indirect, 26–​27,  232–​33 government versus interpersonal, 24–​26, 62, 73n46, 108n50 hard (see hard paternalism) libertarian, 19, 22, 199, 201–​203 (see also manipulation) means-​related versus ends-​related, 103–​107,  187 medical, 39n20, 111–​16, 153–​54, 172–​73,  246–​50 soft (see soft paternalism) See also pro-​paternalism

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[ 270 ] Index paternalistic rationales anti-​paternalist view on, 20 mixed versus unmixed, 7, 98, 139 pro-​paternalist view on, 3–​4 perfectionism, 15–​16, 103, 106, 107n48,  110–​11 persuasion, rational, 22, 204 physician–​patient relationship,  246–​47 positive threshold view, the, 136–​40 preference-​shaping paternalism, 202–​204. See also manipulation prioritarianism, 17, 239 Prohibition (of alcohol), 26n61, 234–​36 pro-​paternalism explained,  3–​8 interests, as neutral on accounts of, 11,  12–​13 prostitution laws, 102–​103, 104, 109 Quong, Jonathan, 75–​85, 121n8, 152n25, 249n72 Racist Candidate (case), 213 rationality, instrumental, 107, 185–​90 Rawls, John, 76, 81, 83, 84, 115n67, 127, 194n65 Raz, Joseph, 54n61, 69n37 Reckless Hiker (case), 152. See also bridge case religious beliefs, paternalism and, 111–​16,  133n34 Rice, Eugene, 130n29 rights alienability of, 242–​45 claims as, 119–​21, 123 infringements (distinguished from violations), 121, 132n31 to personal sovereignty, 61, 146–​47, 193, 198 rights thresholds autonomy and, 140–​44 multiplier view of, 130–​32, 141n43 net interests principle, the, 129–​30 paternalism and, 124–​25, 131–​33 positive threshold view, the, 136–​40 quantitative and distributive requirements of, 121–​22, 130n28, 132 zero threshold proposal, the, 132–​35

Riley, Jonathan, 32–​33n4 Ripstein, Arthur, 134n35 Scanlon, T.M., 17n35, 63–​64n19, 178 Scoccia, Danny, 185–​86, 189, 191n59, 193–​94n64, 195n68, 224n69 seat belt laws, 27, 68, 70 self-​development, argument from, 35–​36,  47–​54 self-​regarding behavior, 32–​33,  138–​39 self-​sacrificial choices, 95n22, 97 Shapiro, Daniel, 231n11, 243n50 Shiffrin, Seana definition of paternalism of, 4n6, 5n8, 72, 87n3 motive-​based objection to paternalism of,  60–​61 nonpaternalistic defense of unconscionability doctrine of, 64, 66, 67n30 Sincere Cult Leader (case), 213 slippery slope arguments, 45–​47, 222 smoking causes of, 44–​45, 52n57, 176–​77, 208, 230 values of smokers, and relation to, 189 voluntariness of, 165, 168, 225n70, 231 See also tobacco policies snake-​handling,  111–​12 soda policy (New York), 70 soft paternalism desire-​based account of, 185–​96 distinction between hard paternalism and, 20, 146–​51, 159,  196–​97 hypothetical consent and, 159–​62,  191–​96 Jehovah’s Witness case and, 113–​15 manipulation and, 225–​26 misapplication and abuse of, 38, 41 voluntariness and, 147–​48, 163–​69,  180–​85 See also ignorance exception, the; impairment exception, the status-​based objection, the, 75–​85 Strawson, P.F., 185n44

Index  [ 271 ] strong constraint first version, 93–​94 second version, 94–​99 See also waiver constraint subliminal messaging, 220–​26 suicide, 148, 163–​64, 170, 183–​84n40,  187 Sunstein, Cass, 199–​203, 207n28, 218 Talbott, William, 186n47 taxes, 28n65, 32–​33n4, 51, 231, 238, 243 Terlazzo, Rosa, 34n9 Thaler, Richard, 199–​203, 218 Thomson, Judith Jarvis, 64, 119–​21, 122n10, 126–​27n19, 129, 133n34 thresholds (for rights). See rights thresholds tobacco policies implications of pro-​paternalism for,  229–​36 liberal neutrality and, 90–​92, 95, 96,  98–​99 means-​related paternalism and, 105 warning labels, 202, 207–​208 See also smoking Unacknowledged Compulsive Behavior (case), 213–14 unconscionability doctrine, 64

utilitarianism, 16–​17, 33, 47. See also consequentialism; Mill, John Stuart value imposition, objection from, 87–​90. See also strong constraint; waiver constraint; weak constraint VanDeVeer, Donald, 77, 160, 193, 195 voluntariness, 147–​48, 163–​69, 175,  180–​85 waiver constraint, 99–​102 Wall, Steven, 34n9, 54n62, 59n8, 146n4 Watson, Gary, 188 weak constraint, 90–​92 weakness of will, 44, 95 Welch, Brynn, 204, 206, 217n51 well-​being authenticity as component of, 223–​24,  225 self-​development as component of, 35,  47–​50 theories of, 8–​10, 11 See also desire-​fulfillment theories (of well-​being); hedonism; interests Wertheimer, Alan, 104n41, 166n44 Willfully Ignorant Patient (case), 153–54 Wood, Allen, 219n57 zero threshold proposal, the, 132–​35

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