BA Politics, Philosophy and Economics - Dissertation - Libertarian Paternalism by Lucie Boyle

Lucie Boyle

Dissertation – Libertarian Paternalism and Autonomy

20 April 2013

In light of our increasingly evident difficulties choosing well, libertarian paternalism is a movement that urges policy makers to ‘nudge’ people into making better choices whilst maintaining freedom of choice. But for those deeply committed to autonomy, is nudging the best solution to our difficulties handling complex choice situations?

Lucie Boyle Dissertation 20 April 2013

Lucie Boyle

Dissertation – Libertarian Paternalism and Autonomy

20 April 2013

Contents: 1. Introduction. 2. ‘The issue at hand’: the consequences of desiring freedom of choice in a world of bounded rationality. -

2.1. bounded rationality: some examples.

3. Libertarian paternalism as a solution to the problem. 4. The potential benefits of libertarian paternalism. 5. How libertarian paternalism purports to avoid popular objections to paternalism. 6. Libertarian paternalists’ own misconceptions. -

6.1. Alternative grounds for valuing freedom of choice.

7. Libertarian paternalism and autonomy. -

7.1. The concept of autonomy.

7.2. How libertarian paternalism purports to be compatible with respect for autonomy.

7.3. Other possible arguments for the LP approach’s failure to respect autonomy.

8. Alternative conceptions of autonomy: the implications for public policy initiatives. -

8.1. Autonomy as a capacity that can be developed.

8.2. Balancing out the LP approach with a more autonomy focused approach.

9. Conclusion.

Lucie Boyle

Dissertation – Libertarian Paternalism and Autonomy

20 April 2013

1. Introduction: Politicians and the public alike are becoming increasingly disenchanted about our ability to choose rationally when faced with extensive choice. One reason for this has been that, as scientific evidence into the ways in which our cognitive capacities are limited has accumulated, our struggle with making complex choices well has becomes less of a mystery. Nevertheless, because we live in “an age of unquestioned commitment to choice”1, private and public institutions feel obliged to keep expanding our options. Recently, however, social scientists have sought to inform policy makers of just how bounded human rationality really is and how this leads so many to choose in a self-defeating manner, even with respect to their own goals. One increasingly popular approach as to how public policy might address this issue has been put forward and termed ‘Libertarian Paternalism’. This approach, which I shall call the ‘LP’ approach, proposes ways in which we could ‘nudge’ people into making better decisions while respecting their liberty. Although praised and even adopted by politicians in both the US and the UK, the LP approach has not been considered acceptable by all. Indeed to many of those committed to autonomy, the welfare-focused approach had been considered quite objectionable. To address these objections, I will in this paper discuss autonomy-centred concerns with the LP approach as a policy initiative. I will argue that alternative public policy approaches that focus more on autonomy and its development appear both feasible and desirable in some circumstances. As a result, I will conclude that alternative ‘autonomy-centred’ approaches ought at least to be properly considered, alongside the LP approach, in the attempt to respond to our difficulties with choice. To evaluate the LP approach as it was put forward by its main proponents Cass Sunstein and Richard Thaler2, I will lay out the problem to which libertarian paternalism is a proposed solution in Section 2. I will also outline the issue of bounded rationality, since this is suggested to be at the very core of the problem we find ourselves faced with. In Section 3 I will clarify and explore the LP approach as a response to the issue at hand. In Section 4 I discuss the potential benefits of libertarian paternalism. In Section 5 I then lay out a few of 1

Anderson, Joel (forthcoming). Autonomy gaps as a social pathology: Ideologiekritik beyond paternalism. In Rainer Forst (ed.), Sozialphilosophie und Kritik. Suhrkamp 2 The Libertarian Paternalism approach is most commonly associated with Richard Thaler and Cass sustein’s hugely influential book ‘Nudge’. It is their definition of Libertarian Paternalism as it can be found in this book that I will be assuming throughout this paper. 3

Lucie Boyle

Dissertation – Libertarian Paternalism and Autonomy

20 April 2013

the popular objections to paternalism in general and evaluate whether these objections are appropriate to libertarian paternalism. After suggesting a few objectionable assumptions underlying the LP approach, I will, in Section 7, further scrutinise the relation between the LP approach and respect for autonomy. In this section I will suggest that it is by failing to satisfactorily address concerns for autonomy that the LP approach remains most objectionable. Finally, in Section 8 I will lay out and evaluate alternative, more autonomyfocused policy initiatives as a response to the issue at hand. Having discussed the LP approach, as well as autonomy-centred objections and alternatives proposed in response to it, I will conclude that, even though Libertarian Paternalism ought to be praised as an approach that may be optimal in some cases, it ought not be considered in isolation from other autonomy-focused approaches that in some situations will be preferable.

2. The issue at hand: desiring freedom of choice in a world of bounded rationality. As a result of the current “widespread popular support for libertarian and market-based trends in public policy”3, we have been seeing our options continuously expand in many areas from mobile phone contracts to loan options. Health insurance options have expanded almost as quickly as the range of sugary cereals available, which is expanding at a similar rate to our waistlines. In urging for our options to be increased in response to our deep commitment to choice, we consider ourselves to be accelerating the process of individualisation, which has on the whole been encouraged by both liberals and libertarians. The resulting policy mantra that appears to have emerged from our desire for government to let citizens choose for themselves has been a “Just Maximise (the number and variety of) Choices”4 mantra. We can observe this outlook to have been applied to “many domains, from education to prescription drug insurance plans”5. Unfortunately, the outcomes of our increased freedom of choice have tended to suggest that, contrary to popular belief, if

Anderson, Joel (forthcoming). Autonomy gaps as a social pathology: Ideologiekritik beyond paternalism. In Rainer Forst (ed.), Sozialphilosophie und Kritik. Suhrkamp. p.2. 4 Thaler, Richard H., and Cass R. Sunstein. Nudge: Improving Decisions about Health, Wealth, and Happiness. New Haven, CT: Yale UP, 2008. p.9. 5 Ibid. 3

Lucie Boyle

Dissertation – Libertarian Paternalism and Autonomy

20 April 2013

liberty is considered to be increased when choices are increased, then one can “suffer from a greater liberty”6. Indeed, the “view that more choices is always preferable to fewer”7 appears increasingly difficult to defend in light of the harmful consequences that have tended to result from our having more choices to make. As a result of the harmful consequences of increasing our freedom by increasing options, scientific research has increasingly sought to explain our great difficulty dealing with the choice we have been asking for. What research has confirmed is that we are not like the rational beings who only do “things that lead to rewards and avoids whatever they are punished for”8 . In fact, research on human rationality has found that the “cognitive limitations of the human mind”9 are quite extensive, and because our decision making is conditioned by these limits, when we do “apply our rationality we usually do so only after having greatly simplified the choices available, thus turning us into “‘satisficers’ who seek a satisfactory solution rather than an optimal one”10. In addition, behavioural economists have identified a vast array of irrational behavioural trends and biases that would not be observed in the perfectly rational agent but that nevertheless make their way into our merely human choice making, even when we make choices that will have very important consequences.

2.1. Bounded rationality: some examples.

Some of the trends and biases frequently pointed to by scientists include our aversion to loss, which has been identified as a common and potential highly counter-productive irrational tendency “pressing us not to make changes even when changes are very much in our favour”11. Inertia, or what our government’s Nudge Unit has called ‘Choice aversion’, is

John Rawls, A Theory of Justice, Cambridge, Mass., Harvard, 1972. p. 143. Dworkin, Gerald. The Theory and Practice of Autonomy. Cambridge: Cambridge UP, 1988. p.81 8 Scott, J, Rational Choice Theory, From Understanding Contemporary Society: Theories of The Present, edited by G. Browning, A. Halcli, and F. Webster. (Sage Publications, 2000). p.3. 9 John, P, Smith, G, Stoker, G, Nudge Nudge, Think Think: Two Strategies for Changing Civic Behaviour, Forthcoming in The Political Quarterly, Institute for Political and Economic Governance, School of Social Sciences, University of Manchester. p.7. 10 Knill, Christoph, and Jale Tosun. Public Policy: A New Introduction. New York: Palgrave Macmillan, 2012. p.8. 11 Thaler, Richard H., and Cass R. Sunstein. Nudge: Improving Decisions about Health, Wealth, and Happiness. New Haven, CT: Yale UP, 2008. p.37. 7

Lucie Boyle

Dissertation – Libertarian Paternalism and Autonomy

20 April 2013

also one of the behavioural trends suggested to be particularly problematic. It has been described as a “tendency to avoid or delay making a difficult decision when faced with a large range of options”12, and is thought to be becoming increasingly common as choices become more complex. Amos and Kahneman have also found us to use unreliable, biased rules of thumb as a means of helping us make choices we have little experience and information about. Scientists have suggested that these biases emerge from a complex interplay between our ‘automatic’ and ‘reflective’ modes of thinking, often causing us to “predictably err”13 such that they could predict what sort of irrational responses we would have to particular situations. As a result, one of the tasks taken on by behavioural economists has been to show that they can in fact explain and predict much of the irrational behaviour that was previously a bit of a mystery.

In response to extensive and fascinating work on the concept of ‘bounded rationality’, many have increasingly come to better appreciate the limits to our merely human minds. In addition, as a result of behavioural economists such as Thaler and Sunstein offering extensive evidence that a boundedly rational agent’s choices are influenced by small changes in context, many have perceived there to be some “room for attempts to overcome suboptimal behaviour by means of paternalistic intervention”14, especially in a world that requires endless complex choices to be made. Indeed evidence of bounded rationality and our increasing understanding of it has certainly laid strong foundations for Thaler and Sunstein’s suggestion that behavioural insights be used more consciously to design or redesign contexts of choice. In fact the suggestion at the very core of the LP approach is that insights into the predictability of our irrational behaviour be used to encourage us into making choices that are more consistent with our wellbeing. Such ‘choice architecture’, intended to lead us into making better choices, is at the core of what Thaler and Sunstein call a ‘nudge’.

Cabinet Office Behavioural Insights Team, Behavioral Bulletin, 3rd edition, 2012. p.1. 13 Thaler, Richard H., and Cass R. Sunstein. Nudge: Improving Decisions about Health, Wealth, and Happiness. New Haven, CT: Yale UP, 2008. p.8. 14 Muramatsu, R, Freedom of choice and bounded rationality: a brief appraisal of behavioural economists’ plea for light paternalism, Brazilian Journal of Political Economy, vol. 32, nº 3 (128), pp. 445-458, July-September/2012. p.4. 6

Lucie Boyle

Dissertation – Libertarian Paternalism and Autonomy

20 April 2013

Different cognitive limitations affect different people to different extents and under different circumstances, however. And indeed it is recognised that there are particular conditions under which our difficulties dealing with complexity appear particularly problematic. Choice situations in which we need to evaluate and compare various risks, or in which we lack clear and settled preferences, willpower or experience necessary to make good, informed choices have been suggested to be those where we are most prone to making bad choices. Certainly, in many situations, such as choosing a savings plan, the choices we are being required to make are not only hugely complex, but have “far-reaching consequences and people cannot wait to learn from previous mistakes”15. As a result, it is in these sorts of circumstances that the potential impacts of changes to the existing choice architecture are urged by Thaler and Sunstein to be taken fully into account. This is because these are the sorts of situations in which the less than perfectly rational choosers amongst us are repeatedly having their wellbeing significantly compromised by policies of liberalisation.

3. Libertarian paternalism as a solution to the problem. In fully appreciating the potentially devastating consequences of human bounded rationality, Thaler and Sunstein have not limited themselves merely to listing the various ways our cognitive limitations can cause us to choose poorly. Instead, because research in behavioural economics “potentially broadens the scope in which policies can be usefully developed”16, Thaler and Sunstein go on to suggest an approach they call ‘libertarian paternalism’ as a practical response to the issue at hand. Essentially, their proposal is that public and private ‘choice architects’, which include policy-makers, use well established behavioural insights to make us choose in ways that are more in line with our wellbeing, as we ourselves would affirm. Thaler and Sunstein provide a wide range of very attractive

Muramatsu, R, Freedom of choice and bounded rationality: a brief appraisal of behavioural economists’ plea for light paternalism, Brazilian Journal of Political Economy, vol. 32, nº 3 (128), pp. 445-458, July-September/2012. p.9. 16 Camerer et all, Regulation for Conservatives: Behavioral Economics and the Case for “Asymmertric Paternalism”, 2003, p.2124. 7

Lucie Boyle

Dissertation – Libertarian Paternalism and Autonomy

20 April 2013

possibilities in which behavioural insight could be beneficially applied to the designing of various choice settings. I mention two of the most famous nudge proposals below. Thaler and Sunstein’s proposed ‘Save More Tomorrow’ plan recommends that our aversion to loss is circumvented by a plan that invites participants "to commit themselves, in advance, to a series of contribution increases timed to coincide with pay raises designed to increases

our saving rate at the same rate as our pay check”17. This design allows you to save gradually more without generating the horrible sensation that you are loosing more and more of your disposable income. Such changes to the framing of choice are recommended as a response to the fact that “the behavioural consequences of otherwise identical information depend on how it is framed”18. The other nudge pressed by Thaler and Sunstein in the domain of savings is that of the 401(k) plan, with the default set to automatic enrolment to “encourage participation”19 by “overcoming inertia”20. This is suggested as a more favourable approach than previous opt-out defaults which “assume that people have enough willpower to implement the relevant plan”21 when, in reality, the complexity of choosing a suitable plan combined with drab of needing to fill in a form leads some of us to avoid the process altogether. In addition, since a large number of individuals (68 percent in one study22) say they should be saving more, Thaler and Sunstein suggest that individuals are just “spacing out or procrastinating rather than making a reasoned decision”23, and thus would at least be open to strategies that could help them achieve their goal.

One feature of nudges that is treated as absolutely central to rendering the suggested paternalism as of a liberty-preserving nature is that, if someone really did whish to choose or act in some other way than that ‘recommended’ by the nudge, then the intervention should not make it hard for them to do so. This requirement that a nudge be easy and cheap 17

Thaler, Richard H., and Cass R. Sunstein. Nudge: Improving Decisions about Health, Wealth, and Happiness. New Haven, CT: Yale UP, 2008. p.115 18 Thaler, Richard H., and Cass R. Sunstein, Libertarian Paternalism Is Not An Oxymoron, Preliminary draft 4/3/03, Forthcoming University of Chicago Law Review. p18 19 Mitchell, G. Libertarian Paternalism Is an Oxymoron. Northwestern University law Review p.2. 20 Thaler, Richard H., and Cass R. Sunstein. Nudge: Improving Decisions about Health, Wealth, and Happiness. New Haven, CT: Yale UP, 2008 p.119. 21 Ibid. p.114 22 Ibid. p.116 23 Ibid. p.118 8

Lucie Boyle

Dissertation – Libertarian Paternalism and Autonomy

20 April 2013

to avoid by not “forbidding options or significantly changing…economic incentives”24 is thought to ensure that nudges have the potential to promoted well being without limiting freedom of choice, thus making it easy for people to go their own way. By requiring that nudges are easy to avoid in this way, it is though that those of us that are deeply committed to freedom of choice, either on grounds of autonomy or welfare, should not object to a little bit of nudging to assist those that are struggling with these choices. This ‘liberty-preserving’ aspect of libertarian paternalism is suggested to be a result of libertarian paternalists not wanting to burden those who want to exercise their freedom. Indeed this claim that libertarian paternalism does not limit freedom of choice is what makes it “so politically attractive”25.

4. The potential benefits of libertarian paternalism. Certainly the “cognitive revolution”26 that has occurred over the last few decades has had its insights taken on by behavioural economists in a way that has increasingly interested policy makers. What has “given then argument much higher profile”27 however, is the work of Thaler and Sunstein which reached the masses through their 2008 book Nudge. The policy proposals associated with the LP approach have been praised by many for addressing a problem that has been neglected for far too long. Certainly, in light of criteria such as a nudges being liberty-preserving and in line with what most individuals would themselves judge to be in their best interest, the libertarian paternalist’s “nuanced approach both to the limits of human nature and the importance of a social world enabling individual

Thaler, Richard H., and Cass R. Sunstein. Nudge: Improving Decisions about Health, Wealth, and Happiness. New Haven, CT: Yale UP, 2008 p. 6. 25 Grill, K, Normative and non-normative concepts: Paternalism and libertarian paternalism, To be published in edited volume. Final draft. Department of Philosophy, Uppsala University, Sweden, Forthcoming. p.14. 26 John, P, Smith, G, Stoker, G, Nudge Nudge, Think Think: Two Strategies for Changing Civic Behaviour, Forthcoming in The Political Quarterly, Institute for Political and Economic Governance, School of Social Sciences, University of Manchester. p.7. 27 John, P, Smith, G, Stoker, G, Nudge Nudge, Think Think: Two Strategies for Changing Civic Behaviour, Forthcoming in The Political Quarterly, Institute for Political and Economic Governance, School of Social Sciences, University of Manchester. p.6.

Lucie Boyle

Dissertation – Libertarian Paternalism and Autonomy

20 April 2013

action”28 renders the approach potentially attractive to both liberal and libertarians. As a result, it is not surprising that many have become quite exited with how these behavioural ‘tools’ could be used as “low cost, low pain”29 ways of nudging people into new ways of acting. The prospects of libertarian paternalism are particularly evident when we take into account the state of current liberal societies. Indeed as Dolan suggest, and many other will admit, the idea of libertarian paternalism is “important…at any time, but especially relevant in a period of fiscal constraint”30. Certainly, in light of recent occurrences such as the economic crisis, which has been argued to have been partly a result of individuals taking out loans they didn’t understand, it is perceived that some sort of response is required in which our limited capacities are not just denied or overlooked but taken as very real and harmful. As a result, the glimmering prospects offered by a bit of libertarian paternalistic intervention are certainly welcomed. In addition many will be able to provide extensive arguments as to why either fanatic libertarians or ‘big-government’ democrats are wrong in their policy recommendations. The LP approach has then repeatedly been suggested as a ‘third way’ that, instead of adopting senseless opposition to all government intervention, suggests that “when governments intervene, they should do so in a way that promotes freedom of choice”31. Gentle paternalistic intervention is also suggested to be particularly desirable in light of current trends in obesity, as well as issues related to demographic changes, such as our increasingly aging populations. Indeed it is quite aptly brought up by Thaler and Sunstein that, as “the ratio of current workers to retiree’s falls”32, either taxes will have to go up or benefits will have to falls. As a result, it is felt to be particularly pressing that people are assisted in their own desire to be healthy and retire comfortably. Other occurrences, such as the recent cap on benefits across the UK which “will see 40,000 households receive less 28

Anderson, Joel (forthcoming). Autonomy gaps as a social pathology: Ideologiekritik beyond paternalism. In Rainer Forst (ed.), Sozialphilosophie und Kritik. Suhrkamp 29 Stocker, G, and Moseley, M. Motivation, Behaviour and the Microfoundations of Public Services, Published by the 2020 Public Services Trust, July 2010. p.21. 30 Dolan. P, et al, Measuring Subjective Wellbeing for Public Policy: Recommendations on Measures. March 2011. p.7. 31 Thaler, Richard H., and Cass R. Sunstein. Nudge: Improving Decisions about Health, Wealth, and Happiness. New Haven, CT: Yale UP, 2008. p. 254. 32 Ibid. p.113. 10

Lucie Boyle

Dissertation – Libertarian Paternalism and Autonomy

20 April 2013

money from the government as part of a drive to reduce public spending”33 will also heighten many individuals’ concerns about their welfare prospects. In light of such circumstances, the general response by politicians, and in fact a proportion of the public, has been to endorse a bit of benevolent choice architecture to increase individual wellbeing that, in itself, is a widely desired. As nudges are discussed by the increasing number of those formulating policy proposals influenced by behavioural insights, it certainly appears that we can be quite confident that the outcomes of modest and often costless changes in choice architecture could have very desirable outcomes. As a result, we have seen cases of nudges such as auto-enrolment into pension schemes increasingly being implemented34. Indeed, with libertarian paternalism receiving an “additional push…by the rise of the New Right critique of the state and its lionization of market-like incentives as a means of designing public policy”35, libertarian paternalism has certainly appeared fairly embraced in the UK. In fact, the PM’s recently established Behavioural Insight’s Team, or ‘Nudge Unit’, has explicitly taken on the task of drawing on “insights from academic research in behavioral economics and psychology, to apply them to public policy making”36. The Obama administration has shown similar interest in the prospects of nudging, with Cass Sunstein himself being appointed Obama’s Information and Regulatory Affairs administrator. In spite of its already obvious success, if the LP approach is to be more widely translated into strategies of social engineering, then many have quite reasonably urged for “both more philosophical refection and more empirical investigation”37. Indeed since the LP approach’s largely welfarist and consequentialist justifications are by no means immune to a number of more or less widespread objections then, as the 2010 Mindspace report urges, “judgments 33

Public reaction to benefit changes and welfare cuts’, BBC News - Politics 15 April 2013 http://www.bbc.co.uk/news/uk-politics-22153043 34 ‘Pension auto-enrolment 'open to mis-selling’, BBC News – Buisness,11 October 2012 http://www.bbc.co.uk/news/business-19901572 35 Le Grand, J and Mossialos, Elias and Long, Morgan (2007) The United Kingdom: More an Economic than a Social European. In: Kvist, Jon and Saari, Juho, (eds.) The Europeanisation of social protection. Policy Press, Bristol, UK, pp. 41-60. 36

Halpern, D, Behavioural Insights Team, Cabinet Office, Inside Government, Gov.uk, see: https://www.gov.uk/government/organisations/behavioural-insights-team 37 Stocker, G, and Moseley, M. Motivation, Behaviour and the Microfoundations of Public Services, Published by the 2020 Public Services Trust, July 2010. p.22. 11

Lucie Boyle

Dissertation – Libertarian Paternalism and Autonomy

20 April 2013

about the controversy of interventions need to be made before [nudges] are launched”38. Certainly it is true that we will want objections to be addressed and public approval sought if we are to feel that libertarian paternalism is a movement we can whole heartedly endorse as an approach whose whole range of ethical, political and social implications have been suitably addressed. This is especially so since very few will be prepared to endorse a new approach to policy that promises outcomes but disregards all other concerns we might legitimately hold.

5. How LP purports to avoid popular objections to paternalism : According to the main proponents of the LP approach, libertarian paternalism avoids being susceptible to those criticisms that are typically levelled against paternalistic intervention. It purports to avoid these because of a number of specifications Thaler and Sunstein make regarding the characteristics an instance of choice architecture must have to be defined as libertarian paternalism. In particular, libertarian paternalism aims to avoid the standard objections against paternalism as coercive or disrespectful of our freedom and autonomy. As I shall now show, the LP approach is argued to be a non-coercive form of paternalism compatible with a respect for autonomy because of the form of the interventions it recommends. Paternalism, in its crudest form, has been defined as “coercive intervention to the behaviour of a person in order to prevent an individual from causing harm to his or herself”39. This coercive element renders it controversial because, even if individuals are comfortable with paternalism’s benevolent intentions, its “coercive means”40 are usually thought to be objectionable, especially on part of a state. This is an argument common amongst liberals, many of whom still agree with Mill’s view that “the only purpose for which power can be

MINDSPACE: Influencing behaviour through public policy, published by the Institute for Government and the Cabinet Office on 2 March 2010. 39 Becker. L.C. Crimes Against Autonomy: Gerald Dworkin on the Enforcement Of Morality, William and Mary Law Review, Vol40, Issue 3. p.966. 40

Suber, P, Paternalism in Christopher B. Gray (ed.), Philosophy of Law: An Encyclopedia, Garland Pub. Co, 1999, II.632-635. 12

Lucie Boyle

Dissertation – Libertarian Paternalism and Autonomy

20 April 2013

rightfully exercised over any member of a civilised community, against his will, is to prevent harm from others”41. Libertarian paternalists, however, urge that paternalism is by no means always and necessarily coercive, as it “does not always interfere with the explicit will of the subject”42. In fact, libertarian paternalism seeks to intervene in a non-coercive way. This is to be achieved by imposing only “trivial costs on those who seek to depart from the planner’s preferred option”43, such that no one is coerced into doing anything by the way a choice was framed.

The claim that libertarian paternalism is non-coercive has been challenged in many ways. Typically, sceptics have objected that the costs imposed on those wishing to do otherwise than that recommended by the nudge are really arbitrary. In light of this, they suggest that a nudge can be understood as coercive in the same way as financial incentives can be. Essentially the claim is that the libertarian paternalists are sometimes or always wrong to suggest that the cost of departing from the planner’s preferred option would be ignored by the rational person. The libertarian paternalist’s response to this objection has essentially been that those policies that do limit freedom of choice are not in fact libertarian paternalistic policies. In addition, they have sought to explain that because “in many situations, some organization or agent must make a choice that will affect the behaviour of some people”44, then “a form of paternalism cannot be avoided”45, at least where the alternatives, such as choosing to make people worse off, are obviously unattractive.

Even if, for the sake of argument, we accept the above claims about paternalism being unavoidable and potentially non-coercive, another criticism against paternalism, this time on grounds of autonomy, is also widespread. Certainly it is often conceived that “autonomy

Mill, John Stuart. Utilitarianism, On Liberty, Essay on Bentham. Together with Selected Writings of Jeremy Bentham and John Austin. Cleveland: World Pub., 1962. On Liberty, p.128. 42 Antal Szerletics, Paternalism Essex Autonomy Project Green Paper Report Essex Autonomy Project Green Paper Report (University of Essex: Essex Autonomy Project, 2011). p.4. 43 Thaler, Richard H., and Cass R. Sunstein. Nudge: Improving Decisions about Health, Wealth, and Happiness. New Haven, CT: Yale UP, 2008. p.6. 44 Thaler, Richard H., and Cass R. Sunstein, Libertarian Paternalism Is Not An Oxymoron, Preliminary draft 4/3/03, Forthcoming University of Chicago Law Review. p. 4. 45 Thaler, Richard H., and Cass R. Sunstein. Nudge: Improving Decisions about Health, Wealth, and Happiness. New Haven, CT: Yale UP, 2008. p.11. 13

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Dissertation – Libertarian Paternalism and Autonomy

20 April 2013

is that value against which paternalism offends”46, and so, since “few in contemporary western society will deny the significance of personal autonomy”47, whether autonomy is valued intrinsically as a component of the good life, or instrumentally as a means to some other end, paternalism is rendered “pro tanto morally problematic”48. Indeed it is a popular conviction that a paternalistic or ‘Nanny’ state treats autonomous individuals as children that cannot take care of themselves such that the required respect between state and individual is incompatible with a paternalistic intervention on part of the state. This objection reflects the concerns not just of those holding extreme political views or “noncausal accounts of…free will”49, but of a great number of individuals within today’s liberal societies who not only value autonomy, but hold it to have important normative implications. Typically, the LP approach is fleetingly purported by its proponents to be compatible with respect for autonomy in virtue of the liberty preserving aspects of the LP approach, as well as the non-autonomous character of the preferences it does influence. However, because autonomy can be understood in many different ways, and because it is both widely valued and held to be incompatible with paternalism, it appears that the relation between the two may well be complex and ought to be looked at in greater depth. Certainly, if it is going to be established whether libertarian paternalism is really a branch of paternalism which is unproblematic in the face of modern perspectives on autonomy, then we cannot simply accept Thaler and Sunstein’s brief comments on the relation between the two. For these reasons I will dedicate the rest of this paper to discussing the relationship between the LP approach and autonomy. Indeed further evaluation of the LP approach in relation to autonomy should appear particularly appropriate once it is shown how little weight Thaler and Sunstein give to autonomy as a possible reason for our valuing freedom of choice, as I reveal in the next section.

Dworkin, Gerald. The Theory and Practice of Autonomy. Cambridge: Cambridge UP, 1988. p.77. Viv Ashley, 'Philosophical Models of Autonomy,' Essex Autonomy Project Green Paper Report(University of Essex: Essex Autonomy Project, 2012). 48 Shriffin, S. V. (2000), Paternalism, Unconscionability Doctrine, and Accommodation. Philosophy & Public Affairs, 29: 205–250, p220. footnote 25. 49 Metaphysical Libertarianism, Free Will, Wikipedia, See: http://en.wikipedia.org/wiki/Free_will 47

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Dissertation – Libertarian Paternalism and Autonomy

20 April 2013

6. The Problem: libertarian paternalists’ own misconceptions: As discussed in the previous section, Thaler and Sunstein criticise those holding antipaternalistic views as doing so as a result of what they suggested to be ‘two false assumptions and one misconception’; notably that we choose well when given freedom of choice, that paternalism is avoidable and that it is necessarily coercive. Although we have seen why proponents of the LP approach’s critique our assumptions about our capacity to choose well in the face of bounded rationality, and we have seen how paternalistic intervention might avoid being coercive, there are nevertheless two implicit assumptions made by Thaler and Sunstein that appear fairly objectionable. As I see the issue, these assumptions regard firstly why we most value freedom of choice, and secondly what our conception of autonomy is and what normative implications we might hold it to have. The objectionable assumptions or conceptions held by Thaler and Sunstein on these issues , I will argue, have important implications as to whether seeking to improve our welfare by simply going with the grain of our bounded rationality will be considered the only, or most desirable means of dealing with the issue at hand. The first assumption made by proponents of the LP approach is that we value freedom of choice above all as a means of maximising our own welfare. It is explicitly asserted by Thaler and Sunstein that “the presumption that individual choices should be respected is usually based on the claim that people do an excellent job of making choices”50. The worrying assumption here is that the value we associate to freedom of choice is predominantly, if not entirely, of an instrumental nature. In light of this assumption, it is supposed that if we were to appreciate that in many cases being given more ‘freedom of choice’ was leading us to make irrational and harmful choices, then such freedom would lose its value such that we would no longer have an issue with it being intervened with, at least where intervention could be shown to be a better means of securing our ends.

In response to this assumption on part of Thaler and Sunstein, it is true that many of us believe we can make some of the choices we care about better than others would for us. In addition, since in liberal societies we are repeatedly told that we are all free and equal and 50

Thaler, Richard H., and Cass R. Sunstein. Nudge: Improving Decisions about Health, Wealth, and Happiness. New Haven, CT: Yale UP, 2008. p.8. 15

Lucie Boyle

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are encouraged to follow our own dreams, many of us come to value freedom of choice at least partly instrumentally because we perceive of such freedom as enabling us to peruse these dreams or goals. Making welfare maximising choices is not the only reason we consider freedom of choice to be instrumentally valuable, however. Many argue that they sometimes retrieve pleasure, get to know themselves better and even build character by making choices. As a result, that freedom has instrumental importance is thought to be “obvious enough”51. Indeed Friedman’s defence of freedom of choice is related primarily to what he has called the “fecundity of freedom”52, that is its productivity. if these perspective where the whole story, then what might well result from a better appreciation of our bounded rationality and limited ability to make good choices is for some of the instrumental value we associate with freedom of choice to be abandoned such that freedom of choice is considered significantly less valuable as a means to our ends. However, when it comes to making choices, most of us already acknowledged that we sometimes have difficulty processing all the relevant information, or that we do not have the experience and time necessary to evaluate all possible outcomes. Many of us have gotten to know ourselves well enough to appreciate that we sometimes exhibit poor selfconstraint or inertia; we anticipate that when we are presented with an endless array of savings plan options, we will probably not bother to read all the small print and will instead opt with whatever option appears “satisfactory, rather than…optimal”53. We therefore appreciate that we may not always be making welfare maximising choices. In fact, in light of some awareness of our human imperfections, many of us set ourselves targets in fruit intake or monthly saving, or alternatively seek out help from others such as dieticians or financial planners. Of course, whether these private measures are effective or even accessible to all is also subject to reasonable disagreement. Never-the-less, our desire to maintain some freedom of choice, even in acknowledgment of our limitations, is certainly revealing. Indeed the fact that those who do acknowledge their limitations usually still seek

Sen, A, Freedom of Choice: Concept and Content, World Institute for Development Economic Research of the United Nations University, August 1987. p.2. 52 M, Friedman and R, Friedman, Free to Choose, Harcourt Brace Javanovich New York and London, 1979. p.3. 53

Knill, Christoph, and Jale Tosun. Public Policy: A New Introduction. New York: Palgrave Macmillan, 2012. p.8. 16

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to hold on to freedom of choice points to the fact that many of us do not in fact value such freedom purely or maybe even primarily on instrumental grounds. In addition to acknowledging that we are not in fact super-human decision makers, many of us also acknowledge that we do not form our preferences in a vacuum; independently of various internal and external influences. Indeed it seems that few of us will deny that our preferences are partly determined by our nature, psychology and upbringing, as well as partly socially constructed. Nevertheless, even in acknowledging that our choices and preferences are partly contextualised, most of us will still place huge importance on freedom to choose. Yet, even in anticipating that some of us will still maintain our commitment to freedom of choice, even after their account of bounded rationality, Thaler and Sunstein allocate very little discussion to alternative or additional reasons we might have for valuing such freedom. Thaler and Sunstein’s quite outstanding disinterest in alternative reasons for valuing freedom of choice is most probably a result of their belief that alternative reasons for valuing freedom of choice ought not be regarded as a “kind of trump, not to be overridden on consequentialist grounds”54. If this is so, then Sen’s point that it is “in the general tradition of economics [that] the instrumental role of freedom is much more prominent than its intrinsic relevance”55 seems quite fitting, though by no means comforting. Indeed it simply remains the case that a conception of freedom of choice as instrumentally valuable will rarely be the whole story. What needs to be further scrutinized then, is what other reasons we have for valuing such freedom, as well as what normative implications might accompany such grounds. This is because, even if our alternative reasons for valuing freedom of choice where though to be problematic or mistaken, if these reasons are fairly common and deeply rooted, then individuals will want these values to be promoted or at least respected by a liberal state, at least until they are shown to be unworthy of such respect (maybe on grounds of error or justice).

Thaler, Richard H., and Cass R. Sunstein, Libertarian Paternalism Is Not An Oxymoron, Preliminary draft 4/3/03, Forthcoming University of Chicago Law Review. p.7, footnote 19. 55 Sen, A, Freedom of Choice: Concept and Content, World Institute for Development Economic Research of the United Nations University, August 1987. p.4. 17

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6.1.

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Alternative grounds for valuing freedom of choice:

Freedom of choice has been discussed by political theorist such as Carter and as having the potential of being held as instrumentally, intrinsically or constitutively valuable. In addition it is often added that these reasons for valuing freedom should not be considered mutually exclusive such that it is “quite coherent, for example, to see freedoms as having value both instrumentally and intrinsically”56. Those libertarians that have sought to argue that freedom of choice is “intrinsically valuable”57, i.e. as valuable ‘in and for itself’, have had increasing difficulty justifying their beliefs. This is largely because holding freedom of choice as intrinsically valuable typically requires that having more choice is always better than having less. However, that this is necessarily the case has been increasingly rejected by theorists such as Rawls and Raz, who have sought to argue that other considerations, such as whether options are “attainable or meaningful”58, are also important. Indeed some such arguments have appeared particularly convincing as one is encouraged to appreciate, for example, that when a certain set of choices provides you with items that matched your preferences, then “additional options simply provide the necessity for rejections”59. Indeed, as liberals unsympathetic to the view that freedom is intrinsically valuable have provided various accounts as to how having more choices should not always be equated with having greater liberty, the libertarian belief that freedom of choice is intrinsically valuable has become increasingly less popular. Another reason for ascribing value to freedom of choice exists, however. Today, freedom of choice is valued on grounds of autonomy by a significant number of individuals. In this case it seems that “what does have intrinsic value is not having choices but being recognised as the kind of creature who is capable of making choices”60. As a result, ‘constitutive value’ is attached to having freedom of choice. According to Dworkin associating constitutive value to freedom of choice is associating value that “resides neither in the causal effects of 56

Carter, I, The Independent Value of Freedom, Ethics, Vol. 105, No. 4 (Jul., 1995), University of Chicago Press. p.825. 57 Ibid. p.826. 58 Castillo, Mirtha R. Muñiz, Autonomy as a foundation for human development: A conceptual model to study individual autonomy, Maastricht Graduate School of Governance, Maastricht University. p.15. 59 Dworkin, Gerald. The Theory and Practice of Autonomy. Cambridge: Cambridge UP, 1988. p.79. 60 Dworkin, Gerald. The Theory and Practice of Autonomy. Cambridge: Cambridge UP, 1988. p.80. 18

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making choices nor in the value of choices for their own sake, but as definitive of a larger complex that is itself valued”61. In this case, and assuming that autonomy is itself valued and thought to imply being the “kind of person who makes decisions and…chooses and develops a life-plan”62, then choices are valued because they are constitutive of a certain ideal of a good life as an autonomous one. Essentially, according to this view, freedom of choice is valued as ‘part of the package’ enabling us to live, be respected and feel dignified as autonomous individuals capable of shaping our own lives through the choices we make. And indeed this conception of freedom as constitutively valuable nicely captures the sort of value that resides not only in freedom, but in autonomy as a dignifying concept. Certainly it does appear that many of us value freedom of choice largely because we conceive of it as intricately linked with our autonomy, rather than our wellbeing. What this then ought to make clear is not just that freedom of choice is valued on grounds of autonomy far more than the LP approach portrays it to be, but that autonomy is itself deeply valued. Indeed for modern liberals, the protection of autonomy is a fundamental moral principle, and so liberty is valuable not so much intrinsically, but “as way of implementing a commitment to the development, maintenance, and exercise of agency powers”63 that are themselves valued. However since “some measure of liberty”64or freedom is usually considered only a component or accompaniment to autonomy, it becomes apparent that the LP approach’s exclusive focus on liberty and welfare may not be compatible with the value we associate to autonomy as a broader concept. In light of this, in the next section I will further analyse whether respect for autonomy appears as compatible with the LP approach as Thaler and Sunstein fleetingly purport it to be. Autonomy if far from being an simple, unproblematic concept, however, and so to establish whether the LP approach is really compatible with our concern for autonomy, a somewhat more thorough exploration of the concept of autonomy and its implications is first required.

Ibid. Ibid. p.82. 63 Becker. L.C. Crimes Against Autonomy: Gerald Dworkin on the Enforcement Of Morality, William and Mary Law Review, Vol40, Issue 3. p.965. 64 O'Shea, T, 'Autonomy and Value,' Essex Autonomy Project Green Paper Report (University of Essex: Essex Autonomy Project, 2011). p.8. 62

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7. Libertarian Paternalism and autonomy

7.1.

The concept of Autonomy:

Admittedly autonomy is a complex concept and one that is certainly held to mean very different things by different people. As Hart put the matter, we have “one concept and many conceptions of autonomy”65. However, the fact that what it is to be autonomous is far from being an issue we have fixed criteria for should not stop us from using the concept, especially since many individuals feel they have a clear enough understanding of the concept to associate great value and normative implications to it. For the purpose of this paper, I shall use a basic characterisation of autonomy that I believe suitably captures what most individuals understand by the term, as well as why libertarian paternalism might still be considered disrespectful of it. This ‘thin’ characterisation should allow me to evaluate the LP approach’s relation to the concept in a general, but hopefully nonetheless representative and revealing manor. The characterisation of autonomy that I will use is that of Joel Anderson’s, who discusses “two plausible dimensions of autonomy”66; self-guidance and self-governance. As the term is used by Anderson, self-guidance can be understood to “involve the reflexive capacity to act on reasons one understands oneself genuinely to have”67. Self- governance, on the other hand, will on most accounts be understood as a sort of “original sovereignty”68in virtue of which, in the tradition of so many political theorists such as Locke and Rousseau, legitimate government must be grounded on consent. I use this very basic conception of autonomy because I believe that many of those who currently value autonomy will consider it appropriate to put forward that, at its very core, to be autonomous is to guide or govern oneself. What this basic characterisation also usefully captures is that when we show concern for some individual’s autonomy, we are concerned not simply with giving that

Dworkin, Gerald. The Theory and Practice of Autonomy. Cambridge: Cambridge UP, 1988. p.7. Anderson, Joel (forthcoming). Autonomy gaps as a social pathology: Ideologiekritik beyond paternalism. In Rainer Forst (ed.), Sozialphilosophie und Kritik. Suhrkamp. p.5. 67 Ibid. 66

Viv Ashley, 'Philosophical Models of Autonomy,' Essex Autonomy Project Green Paper Report(University of Essex: Essex Autonomy Project, 2012). p.10. 68

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person choices, but with respecting them as person capable and having the right to define the kind of life they want to have. For one to be considered able to guide and govern oneself, however, further considerations can sometimes be required, at least if there is good reason to assume that one is lacking autonomy. Indeed some threshold of competence or “decision-making capacity”69 is usually recognised to be essential for someone to even have the capacity for autonomy. Associating competence to an individual has, unsurpringly, been a particularly problematic task since “theories of autonomy can acknowledge a continuum of autonomy skills”70. What is interesting at this point, however, is that up till now it has certainly not been thought that being perfectly rational is a requirement for having decision making capacity71. Another consideration typically brought up in evaluations of whether some act is autonomous is related to whether that agent is thought to be acting voluntarily (where this typically requires an agent to be competent, suitably informed and not under some extensive degree of emotional or physical pressure72). In addition, whether a choice was made with the actual exercise of one’s capacity to be self-governing will not necessarily be though to determine whether that choice ought to be respected; many have argued that a choice ought to be respected simply in virtue of an individual’s having a capacity for autonomy, rather than only when that “ability and opportunity [is] exploited”73. Having this basic characterisation of autonomy and acknowledging some of the possible variations as to what autonomy is thought to require or imply, it now seems possible to better evaluate whether the LP approach will indeed seem agreeable to those committed to freedom of choice on grounds of autonomy, as Thaler and Sunstein suggest it is. To facilitate

Tom O'Shea , 'Autonomy and Value,' Essex Autonomy Project Green Paper Report (University of Essex: Essex Autonomy Project, 2011). p.8. 70 Ibid. 71 This important distinction foreshadows a schism in discourse about autonomy: between theories that purport to be value-neutral insofar as they do not require autonomous agents to act in accordance with any specified standards of goodness or rationality, and value-laden theories that do. See section 3.1.5: The Conditions for Autonomy from: Viv Ashley, 'Philosophical Models of Autonomy,' Essex Autonomy Project Green Paper Report(University of Essex: Essex Autonomy Project, 2012). 73 Tom O'Shea , 'Autonomy and Value,' Essex Autonomy Project Green Paper Report (University of Essex: Essex Autonomy Project, 2011). 72

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this task I want to begin by looking in more depth at how Thaler and Sunstein suggest that the LP approach is compatible with a respect for autonomy.

7.2.

How the LP approaches purports to be compatible with respect for autonomy:

According to Thaler and Sunstein, respected for autonomy is suitably accommodated by libertarian paternalism. This is claimed to be so because it is though that “respect for autonomy is adequately accommodated by the libertarian aspect of libertarian paternalism”74. In addition, it is thought that the autonomy argument is “undermined by the fact…that sometimes preferences and choices are a function of given arrangements”75. In light of these two points, it appears (though it is by no means made clear) that the underlying claim being made is that, if a choice or preference is influenced by a nudge, then it was ‘too much’ a function of given arrangements, and so ought not be considered a “wellformed”76 , autonomous preference which would not be influences by details of the context in which it was made. If a choice or preference was autonomous, then it would be respected by the ‘liberty-preserving’ design of the nudge, which would allow the individual to act freely according to this ‘well-formed’ preference, thus respecting the individual’s right to choose. As a result, the paternalistic intervention is suggested to influences only nonautonomous choices or preferences, such that no autonomous choice is disrespected. This is why proponents of the LP approach urge that their paternalism ought to be recognised as of a ‘soft’ sort, which according to Feinberg “attractively combines a concern with promoting individual well-being with respect for the individual’s right to govern themselves when their decisions are substantially voluntary”77. This account as to when a choice or preference is autonomous is far from uncontroversial however, and so I will now show why the LP approach might still be objected to on grounds of autonomy. I have shown that the LP approach seeks to portray itself as compatible with respect for autonomy by suggesting that those preferences and choices that are influenced by a nudge are not autonomous and thus can be interfered with on soft paternalistic grounds. But when 74

Thaler. Richard H, Prefrences, Paternalism, and Liberty, Edited by Olsaretti. S,Prefrences and Well-Being, Royal Institute of Philosophy Supplement: 59, Cambridge University Press, 2006. p.237 (footnote 1) 75 Ibid. 76

Ibid. p.251.

Richard J. Arneson (2005). JOEL FEINBERG AND THE JUSTIFICATION OF HARD PATERNALISM. Legal Theory, p.263. 22

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is a choice or preference so much a function of given arrangements that it was no longer autonomous? Does the influence of arrangements necessarily mean the choice was insufficiently voluntary? Since Thaler and Sunstein do not clearly delimit those situations in which preferences are endogenous and when they are not, it is left unclear which preferences are to be thought to be non-autonomous and so acceptable to influence. Once again, issues such as when a choice is autonomous or voluntary have led to extensive disagreement and ambiguity, and as a result it is far from being the case that all those who are committed to autonomy will be satisfied with the LP approach’s unusual and incomplete conception of an autonomous choice. Therefore, even though Thaler and Sunstein may want to deny that a choice influenced by a nudge was autonomous, some may reasonably want to argue that it was and that this has normative implications as to whether intervention was acceptable.

7.3.

Other possible arguments for the LP approach’s failure to respect autonomy.

One thing that is shared by most (though not all78) conceptions of autonomy, is that it is desirable. In addition, many conceptions of autonomy also hold that autonomy as a capacity can be increased or developed79. In light of these common views, and in addition to having considered why the LP approach might be criticised for holding a troubling account of when a choice is autonomous and thus out to be respected, it will be interesting to further consider those arguments that have criticised the LP approach for under-appreciating autonomy. Indeed, in light of fairly popular perspectives on autonomy as a capacity that can be developed, the LP approach’s treatment of autonomy as fairly fixed has quite reasonably lead the LP approach to be criticised for taking a “troublingly managerial approach”80 to our difficulties with choice. This prospect of developing our capacities for autonomy (or increasing our autonomy in some other way) will certainly appear far more desirable to those deeply committed to autonomy than the LP approach’s proposal to simply exploit our rational shortcomings. For this, I will now consider how the LP approach might be 78

See: Tom O'Shea, 'Critics of Autonomy,' Essex Autonomy Project Green Paper Report (University of Essex: Essex Autonomy Project, 2012). [available: for various critics of autonomy. 79

See section 3.1.1: The Nature of Autonomy from: Viv Ashley, 'Philosophical Models of

Autonomy,' Essex Autonomy Project Green Paper Report(University of Essex: Essex Autonomy Project, 2012). 80

Anderson, Joel (forthcoming). Autonomy gaps as a social pathology: Ideologiekritik beyond paternalism. In Rainer Forst (ed.), Sozialphilosophie und Kritik. Suhrkamp. p.4. 23

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considered further problematic to those who conceive of autonomy, as self-guidance or self-governance, as something that could be better addressed by public policy initiatives attempting to address our difficulties with choice. To those who consider self-guidance and self-governance to be core dimensions of autonomy, as I have suggested many will, it is possible that both these dimensions will appear problematically disregarded by a paternalism so fixated on improving outcomes. Indeed with regards to the importance of self-guidance for autonomy, it might well be thought that one cannot be autonomous without acknowledging the reasons on which one is acting, at least to some reasonable extent. Yet the LP approach shows little concern with increasing individuals’ understanding of how their choices and preferences are influenced by factors such as the framing of choices. In fact, the efficiency of nudges appears largely dependent on “making use of the fact that people are not aware of how their choices are being framed”81. Such exploitation of our lack of self-guidance by the LP approach ought to underline the extent to which Thaler and Sunstein trivialize the importance many of us attach to understanding why we choose the way we do. Indeed, those more deeply committed to autonomy may want to argue that superior outcomes cannot compensate for a lack of self-guidance, and that the agent’s self-guidance ought to be given greater importance in these situations, at least where it is thought that self-guidance could be developed where it is lacking. Alternatively, many will perceive that the LP approach could have better secured respect for autonomy not by improving our self-guidance directly, but instead by securing the consent of those that are to be influenced by nudges such they can at least be said to be selfgoverning. Certainly, in light of our current general understanding of the concept of consent, few will think there to be anything problematic about our friends or nutritionists stopping us from snaking if we have consented to their assisting us with our poor self-control. Indeed, even most liberals are comfortable with the idea of a bit of ‘soft’ paternalism on the part of the state when our actions are less than voluntary. However, there appears to be no good reason to assume that, just because some of our choices and preferences are ‘to much’ a function of given arrangements, that we are therefore no longer generally autonomous and 81

Ibid. p.5. 24

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in merit of respect from government, which is then required to secure our consent before nudging us (especially since nudging is quite a controversial and novel approach to policy). It certainly appears likely that, if we more explicitly consented to a bit of nudging to help us with our bounded rationality, then such interventions (which debatably would not even be paternalistic anymore) would be compatible with respect for our self-governance and therefore acceptable.

However, once again, proponents of nudging (including our government’s Nudge Unit) have typically shown very little interest in actually securing a legitimate form of consent from those it wishes to nudge. On part of Thaler and Sunstein, “several ways of downplaying the need for authorization”82 for nudges are used by, for example, suggesting nudges that appear obviously appropriate and promise very attractive outcomes, or suggesting that most of us are “legitimately disinterested”83 in making the decisions discussed. Worryingly, when it comes to securing our consent, Thaler and Sunstein appear more than comfortable asserting that they assume the subsequent or hypothetical consent of those that would be benefited by benevolent choice architecture. However, for those of us who see “reciprocal consent as a requirement intrinsic to our efforts to work out the terms of our fair and equal cooperation, then it becomes clear that the requirement of self-governance transcends individual preferences”84. In light of these considerations, it certainly becomes apparent that the LP approach’s promise to improve our wellbeing whilst retaining a degree of liberty appears increasingly incompatible with what a commitment to autonomy would regard as legitimate state intervention.

What the LP approach’s apparent disregard for autonomy further reveals is the insulting effect the approach has in assuming that the less than perfectly rational amongst us are incapable of guiding and governing ourselves suitably. However, that we are not regarded as incompetent is in many ways a central virtue of autonomy as a dignifying concept. In light of this it appears that those committed to autonomy will not only want to have freedom of 82

Anderson, Joel (forthcoming). Autonomy gaps as a social pathology: Ideologiekritik beyond paternalism. In Rainer Forst (ed.), Sozialphilosophie und Kritik. Suhrkamp. p.6. 83 Ibid. 84 Ibid. 25

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choice preserved, but will want to feel respected and responsible for their achievements. Indeed as conceded by Le Grand, an otherwise strong proponent of nudging, a number of proposed nudges have been criticised for making people feel incompetent and undignified. For example, in suggesting to individuals that they ought to be automatically enrolled into exercise programs, some responded that they would feel disheartened not only by the fact they were being assumed unlikely to attend the gym on their own initiative, but also because automatically enrolling them would deprived them of the opportunity to feel dignified if they had been attending the gym on their own initiative85. As Shriffin asserts, “paternalist policies convey a special, generally impermissible, insult to autonomous agents”86, and since the LP approach appears to deny both our self-guidance and selfgovernance, it becomes unclear whether even a ‘libertarian’ form of paternalism is compatible with our feeling dignified as autonomous individuals.

8. Alternative conceptions of autonomy: the implications for public policy initiatives.

8.1.

Autonomy as a capacity that can be developed.

Admittedly, the LP approach might appear more justifiable, and even fairly attractive, if it was shown that individual’s potential to be self guiding or self-governing really was in many cases low and could not be increased. However, for those who consider autonomy to be a capacity that can be developed or improved, how policy initiatives ought to respond to our current difficulties with choice may take quite a different direction. The central point which I wish to make in this section is that for those who see autonomy as a core value and commitment of liberal societies and as “a capacity that is not innate but developed”87, then it might well be felt that for autonomy to be suitably respected by the state it should not only be respected when it is present, but should in fact be promoted or facilitated by the

Le Grand, J, Government Paternalism: Nanny State or Helpful Friend (Departmental Seminar Series), 09 October 2012. 86 Shriffin, S. V. (2000), Paternalism, Unconscionability Doctrine, and Accommodation. Philosophy & Public Affairs, 29: 205–250. p208

Viv Ashley, 'Philosophical Models of Autonomy,' Essex Autonomy Project Green Paper Report(University of Essex: Essex Autonomy Project, 2012). p.5. 87

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state when it is lacking. Indeed since autonomy is regarded by so many as “a human need and capability, instrumentally and intrinsically important”88, then promotion of its development by the state is likely to be urged by those individuals who believe that the state can and should play a role in the promotion of this cherished liberal ideal. If autonomy is understood as a capacity to be self-guiding or self-governing, then it is at least possible to argue that for such autonomy to be exercised in making a choice, we ought not to be systematically and predictably subject to irrational tendencies to the degree that behavioural economists have suggested us to be. As a result some may concede that in those circumstances in which we are choosing predictably irrationally we are not really choosing autonomously (although as I have argued some will not). However many will also have observed and maybe experienced that we are able to become less subject to previous constraints and influences. We are able to, for example, become better at exercising selfconstraint when in front of a desert menu. Indeed empirically speaking, we seem in many cases to have been capable of overcoming previous difficulties (sorting through information for example), and we may considered ourselves to have developed our “autonomy competencies”89 in doing so. In addition, many have come to appreciate that the way we are able to respond to the demands of the world around us is “fundamentally a function of our material, cultural, and institutional surroundings”90 such that what we are able to do changes as we develop tools to overcome difficulties. Of course, there will undoubtedly be disagreement as to the extent to which people’s ‘autonomy competencies’ can be developed. As a result, the extent to which we are able to become more autonomous will remain subject to dispute, especially if it is though that to be autonomous requires achieving perfect rationality or being free from various external and internal influences. There is also likely to be disagreement regarding when and what specific competencies can be improved. However, those holding a ‘relational’ conception of autonomy have stressed that autonomy is “both defined and perused in a social context

Castillo, Mirtha R. Muñiz, Autonomy as a foundation for human development: A conceptual model to study individual autonomy, Maastricht Graduate School of Governance, Maastricht University. p.2. 88

Meyer, Diana. T, Self, Society, and Personal Choice, New York: Columbia university press 1989. p. 12.

Anderson, Joel (forthcoming). Autonomy gaps as a social pathology: Ideologiekritik beyond paternalism. In Rainer Forst (ed.), Sozialphilosophie und Kritik. Suhrkamp. p.5. 27

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that significantly affects the opportunities as agent has to develop or express autonomy skills91. As a result, those who have sympathised with these ideas have tended to appreciate that autonomy, as a capacity, is something that could be developed by various measures such as education, structural changes and empowerment, amongst other means. Indeed some of the past measures that been imposed, arguably as a means of addressing our low level of autonomy in certain situations, have included the provision of economic or social support, or even just the provision of information and advice by the government92. What these past initiatives seem to have conceived is that “empowerment is a special type of expansion of autonomy”93. In addition, it has been suggested that many of the biases we adopt, such as projection bias (in which we underestimate how long it takes to complete a task), have to do with the fact that we are making decisions using our “intuitive system”94. In light of this, Voorhoeve has suggested that “the best policy response would be to encourage people to engage in deliberative decision making”95. The insights here appear to be shared by a number of theorists who give more appropriate weight than Thaler and Sunstein to the idea that “people can be knowledge hungry, learn to process new information and demands and reach new heights of reflection and judgment”96 . All in all, it appears that the general perspective held by those who better appreciate that autonomy is presently a deeply held value is that “citizens, given the right context and framing, can think themselves…towards a better understanding of problems and more effective… solutions, avoiding thereby a narrow focus on their short-term self-interest”97.

Mcleod and Sherwin 2000 p.259 One example might be the Citizen’s Advice Bureau which provides a range of information and support. See: http://www.citizensadvice.org.uk/index/getadvice.htm 93 Castillo, Mirtha R. Muñiz, Autonomy as a foundation for human development: A conceptual model to study individual autonomy, Maastricht Graduate School of Governance, Maastricht University. p.13. 94 Kahenman, Maps of Bounded Rationality: A Perspective on Intuitive Judgment and Choice, Princeton University, Department of Psychology, Princeton, 2002. p.453. 95 Voorhoeve, A, Response to Rabin, London School of Economics, April 3, 2012. p.3. 96 John, P, Smith, G, Stoker, G, Nudge Nudge, Think Think: Two Strategies for Changing Civic Behaviour, Forthcoming in The Political Quarterly, Institute for Political and Economic Governance, School of Social Sciences, University of Manchester. p.15. 97 Ibid. p.3. 92

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In seeking to remain appropriately realistic however, a number of the theorists who have urged for autonomy to be developed or encouraged in some way of other have also appreciated that it is not clear to what extent “socially supportive conditions”98can be set up in different circumstances. It is also admitted by Voorhoeve that it is “not clear”99how effective encouraging people to be reflective will be in various cases. As a result, some such as Anderson have suggested that our current difficulties dealing autonomously with complex choice is “only problematic against the background of a contingent level of demandingness of social tasks”100, which could itself be addressed. In this case the apparent discrepancy between the demands of a choice and our ability to respond to it could be reduced not by increasing our capacities to deal with the complexity, but by reducing the demands of choice situations such that we more capable of responding in a self-guided manor. This second approach certainly starts to look more like the nudge approach, but it remains that it should be distinguished from it primarily because it look to improve our autonomy, rather than improve welfare directly. Thus, like the former approach that seeks to increase our autonomy competencies more specifically, it seems that this approach seeks to get to the root of the problem and engage the rational processes of targets, rather than “exploit shortcomings of rationality”101.

8.2.

Balancing out the LP approach with a more autonomy-focused approach.

As a result of conceiving of autonomy as a capacity that can be increased, Individuals may urge that autonomy should both be respected and promoted by the state. However, to both those who perceive of autonomy as primarily intrinsically or instrumentally valuable, valuing autonomy will not usually mean denying the importance of other values, such as health and security, which might well be thought to be attainable in alternative ways, such as through as a few nudges. In addition, some may seek to avoid endorsing perfectionism on part of the 98

Castillo, Mirtha R. Muñiz, Autonomy as a foundation for human development: A conceptual model to study individual autonomy, Maastricht Graduate School of Governance, Maastricht University.p.3. 99 Voorhoeve, A, Response to Rabin, London School of Economics, April 3, 2012. p.3. 100 Anderson, Joel (forthcoming). Autonomy gaps as a social pathology: Ideologiekritik beyond paternalism. In Rainer Forst (ed.), Sozialphilosophie und Kritik. Suhrkamp. p. 9. 101 Grill, K, Normative and non-normative concepts: Paternalism and libertarian paternalism, To be published in edited volume. Final draft. Department of Philosophy, Uppsala University, Sweden, Forthcoming. p.15. 29

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state, which arguably would be the case with a state actively promoting autonomy. As a result, one possible solution to both allowing space for other values, and to avoid appearing overly perfectionist in endorsing a value that not everybody will share, is may well be possibly to strike a balance between an more autonomy-focused approach, and a libertarian paternalist, welfare-focused approach. Never-the-less, it seems that many will find the suggestion that concern for autonomy should be trumped by concerns for welfare in all those instances discussed by Thaler and Sunstein rather objectionable. Finally, it appears fair to argue that the use of nudges will fail to address the fundamental problem of our troubles dealing with complexity. Nor does it appear that the approach will be able to shape more independent, “resilient…citizens”102, thus allowing only “modest outcomes”103 from that perspective. For those deeply committed to autonomy then, it seems that a better appreciation of when and how we can learn to handle complex situations may lead to normative claims as to what sort of policy initiatives should be taken on by the state with regards to different circumstances. Many political theorists seem to better appreciated than Thaler and Sunstein just how important autonomy presently is to many of us, even if it is a “much contested liberal ideal”104. Indeed, if we are thought to have the possibility of developing autonomy, then this will be considered by many to have important normative implications such that policy should first seek to promote autonomy in these cases, unless citizens explicitly request and consent to a nudge as more favourable. Only where it appears that autonomy could not be suitably increased, or that the opportunity costs of seeking to promote autonomy would be too great, are those more deeply committed to autonomy likely to concede that straightforward nudges may be the best policy response to our difficulties dealing with complexity; a reality that neither side is likely to deny.

102

Stocker, G, and Moseley, M. Motivation, Behaviour and the Microfoundations of Public Services, Published by the 2020 Public Services Trust, July 2010. p.19. 103 John, P, Smith, G, Stoker, G, Nudge Nudge, Think Think: Two Strategies for Changing Civic Behaviour, Forthcoming in The Political Quarterly, Institute for Political and Economic Governance, School of Social Sciences, University of Manchester. p.18.

Viv Ashley, 'Philosophical Models of Autonomy,' Essex Autonomy Project Green Paper Report(University of Essex: Essex Autonomy Project, 2012). p.1. 104

Lucie Boyle

Dissertation – Libertarian Paternalism and Autonomy

20 April 2013

9. Conclusion. As the very real and pressing problem that it is, this paper began by discussing the increasing concerns that have emerged over our ever more apparent tendency to choose and behave in a self-defeating manor. Having laid out how our difficulties choosing well have been convincingly argued to be a result of a combination of two main factors, notably our almost fanatic desire to be given ever more choices, strikingly accompanied by the sobering truth about human rationality being quite significantly bounded. As a fairly recent but already hugely influential response to the issue at hand, the concept of libertarian paternalism was then described. Having explained how libertarian paternalism proposes itself as a politically viable, liberty-preserving approach to policy, due admiration was made regarding the virtues of an approach which promises to improve the outcomes of people’s decisions in spite of their cognitive limitations, all whilst allowing us to hold on to the freedom of choice that we cherish so dearly. However since the LP’s narrow focus on improving outcomes appears to result in a quite concerning disregard for autonomy, it was argued that the LP approach fails to convince us that its ‘libertarian’ aspect renders it truly compatible with a genuine respect for autonomy as the core liberal value that it is. What a revelation LP approach’s incompatibility with a deeper concern for autonomy then gave cause for was an exploration of what it is that individuals want from a state that respects autonomy. In response to this it was suggested that it was unlikely that many would be convinced that a nudge would only influence non-autonomous choices, since many would be unprepared to conceded that those preferences that where a ‘function of given arrangements’ where therefore necessarily non-autonomous. After suggesting that a common conception of autonomy is that it can be developed far more than that conceded by the LP approach, I suggested that a more autonomy-focused approach to policy appears in many cases both feasible a hugely preferable. Indeed what ought to have been made clear is that autonomy is so deeply valued, that individuals will want to see it respected and promoted by policy initiatives. As was concluded, however, the potential conflict between autonomy and welfare ought by no means to be considered one that cannot be solved by compromise, and so it appears that a careful balance between a bit of nudging and a bit of

Lucie Boyle

Dissertation â&#x20AC;&#x201C; Libertarian Paternalism and Autonomy

20 April 2013

empowerment in terms of autonomy will be most favourable both for the individual, and for the state, at least if the latter is interested in nurturing competent citizens, as we should hope it is.

Word count: 10,094.

Lucie Boyle

Dissertation – Libertarian Paternalism and Autonomy

20 April 2013

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Dissertation – Libertarian Paternalism and Autonomy

20 April 2013

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Lucie Boyle

Dissertation â&#x20AC;&#x201C; Libertarian Paternalism and Autonomy

20 April 2013

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