Dworkin paternalism some second thoughts about relationship

dworkin paternalism some second thoughts about relationship

Professor Dworkin examines the nature and value of autonomy and used the concept to analyze various practical moral issues such as proxy consent in the. A law is paternalistic if it is enacted to promote the good of the target audience by overruling their own What is its relation to legal paternalism? Dworkin II's Second Thoughts: The hypothetical consent test does not justify refusing to enforce. In relation to public policy, then, paternalism refers to the interference of a government In the second instance, a government or state may impose a significant rate of . Dworkin cites, as an example of moral paternalism, the censure of . have consented to the risks of riding without a helmet, and thought that the act was.

Unemployment is an endless misery that has got to be constantly palliated, and especially with tea, the English-man's opium. A cup of tea or even an aspirin is much better as a temporary stimulant than a crust of brown bread.

Where public policies help people to realise their preferred preferences through, for example, making it more expensive or inconvenient for people to smokethen such policies cannot be said to be paternalistic in a morally unjustifiable sense. Although he raises this view, Goodin is not entirely convinced by it. This is because, despite having been manipulated by advertisers or whomeverpeople may still deliberately claim these preferences as their own in arriving at their preferences.

Nevertheless, Goodin does argue that there is a strong case for severely restricting the advertising and promotion of products that are addictive and damaging.

Further, while most smokers would like to quit, they find it difficult to do so. However, Goodin insists that the argument against a given intervention simply on the grounds that it is paternalistic is insufficient.

Paternalism may always be defensible, depending on whether or not it is justifiable against criteria such as those discussed above. The above position is useful not only because it presents arguments which justify paternalism, but also because it accommodates the fact that the formation of preferences or choices can be a far more complex act than is generally supposed. A preference is not simply something that can be taken for granted as the final word.

The above analysis suggests that the assumption that a choice made by an individual at a given time and place should always indeed, necessarily prevail does not grasp the complexity of the processes by which preferences are made. This more complex understanding of choice has been explored by number of sociologists, including most famouslyPierre Bourdieu, who analysed the ways in which individuals in particular social classes distinguish themselves from others through the consumption choices they make.

This position is supported and explained by a range of sources. Putting theory into practice The previous section outlines the basic philosophical case under which a paternalist intervention might be considered justifiable. However, what it does not do is provide much guidance in deciding on the legitimacy of particular forms of paternalist intervention. While, for example, we might agree that a clear-cut case of myopia such as the decision to smoke may make some kind of paternalist intervention theoretically justifiable, this then raises some important practical or consequentialist questions.

Form of intervention Relatively little attention has been paid to the nature or form of paternalist interventions.

Clearly, there are more or less intrusive—and more or less justifiable—forms of paternalist intervention. Indeed, the emergence over the past couple of decades of new and more substantial forms of intervention such as compulsory income management has thrown into relief the issue of whether or not certain forms of paternalist intervention may be justified. The possibility that paternalism might be found to be justifiable in a given situation, tells us little about whether a particular form of paternalism is justifiable.

Clearly, this is a critical issue in evaluating the appropriateness and justifiability of a given instance of paternalism. Given that there has been little theoretical attention given to the appropriateness of different forms of paternalism, this section will suggest four criteria that might be used to establish a framework for evaluating paternalistic interventions: This presumption, we suggest, can be regarded as placing limits on the form of particular paternalist interventions.

Discrimination If we accept the principle that states should only engage in paternalism in limited circumstances for example, where irreversible or life-changing decisions are involvedit could be argued that particular interventions should be designed in ways that avoid an impact on people other than those deemed to be at risk of harm from a particular behaviour.

In short, paternalist interventions should discriminate between those for whom paternalism is deemed necessary and those for whom it is not. As outlined earlier in the paper, this position, whereby the class being protected is identical with the class being interfered with, is known as pure paternalism. There may be situations in which a pure intervention is not likely to be as effective as an impure intervention. In pursuing a pure, rather than impure, approach, the state might avoid interfering with the liberty of those not deemed to require protection, but this could come at the cost of assisting some people for whom that protection would be beneficial.

For example, a class of people might be particularly susceptible to harm as a result of consumption or overconsumption of a particular product—such as young women and sweet alcoholic drinks alcopops. A further argument against a strictly targeted approach is that, by its very nature, it formally discriminates against certain groups of people.

That is, it creates a situation in which some people have choices but others do not. For some paternalists, this is the whole point—some categories of people need protection but others do not.

For others, however, strict targeting is an even more egregious violation than a more general approach because it sets aside the rights of a particular group of people to choose for themselves.

dworkin paternalism some second thoughts about relationship

For those taking this stricter approach, the fact that the targeting happens under the guise of protection does not necessarily make this violation legitimate. In some cases, it is argued that such targeting may increase the possibility of harms to certain people precisely because it involves the setting aside of their rights, thereby creating the risk of increased social stigma and humiliation. This argument is frequently made in relation to compulsory income management and other paternalist measures associated with the Northern Territory Emergency Response NTER.

This indicates that while, on the surface, pure paternalism may be more consistent with the liberal presumption against paternalist policies, there may be instances where this more pure approach is inconsistent with other values and objectives, including the justified one of securing assistance for certain groups of people.

Another criticism of the form of income management used in the NT is that it is not discriminating enough in its application. In this connection, it is worth noting a crucial distinction between the income management arrangements operating under the NTER and those instituted in Cape York Peninsula in Queensland. While income management is imposed relatively indiscriminately on certain categories of welfare recipient within the NT that is, on a categorical and geographical basisin Cape York income management is only applied to those income support recipients who fail to meet certain obligations to their children and the community.

If the person is able to demonstrate that they have been complying with their obligations, then their right to manage their own payments may be reinstated. In other words, the form of income management employed in Cape York is more clearly targeted at those failing to meet their obligations. In this respect, it could be said that the Cape York approach, while still setting aside the rights of certain people to choose for themselves, provides an example of how paternalism may be designed to restrict its impact to those actually in need of assistance.

Proportionality What is the appropriate level of interference in a paternalist intervention? How deeply may the state intervene in the choices made by individuals? Again, the principle that paternalism should only be applied in limited circumstances suggests that in liberal societies there should also be limits to the extent of intervention that is justifiable.

One such limitation might be that any intervention is the minimum necessary to achieve the effect of protecting those subject to the policy. A further limitation might be that any paternalist intervention should be proportionate to the problem being addressed by the intervention. Here is it useful to return to the distinction made between strong and weak paternalism the former interfering with ends, the latter interfering with means outlined earlier in the paper.

According to the principles outlined above, strong and deep paternalism would rarely be justifiable—that is, only as a response to threats of the most irreversible, life-changing kind.

Of course, precise judgements about such matters as whether a particular intervention is the minimum necessary are far from simple. Among other issues, such judgements require engagement with evidence about the nature of particular social problems and the outcomes of particular social policy interventions. Issues of evidence are themselves particularly complex and will be discussed in detail in a later section of the paper.

Accountability In liberal societies, it is expected that governments should be transparent in their actions and accountable to citizens. This raises the question of whether or not the design of an intervention should make it obvious that some form of attempted coercion is taking place.

Relatedly, is it legitimate for the state to make decisions on behalf of its citizens or influence them to make particular decisions without telling them?

Are there some instances in which the benefits are so obvious that the consent of citizens may be assumed and who precisely should decide when this applies? Such questions have been subject to significant debate in recent years. Some public health experts, for example, have begun to argue for preventive health interventions that take choices away from individuals. It is generally accepted that some of the biggest gains in preventive health are to be made in areas where individuals do not exercise individual choice such as water fluoridation, sanitation and food regulationor where there are measures in place to ensure the widest possible compliance such as vaccination.

Contrary to current perception, the key to effective public health is not individual choice but collective action linked to public trust in its value. Most of the main determinants of health vary little among people in a community.

The scope for individuals to choose healthy and safe foods, drinks, transport, or buildings is limited; the similarities in exposure are greater than the potential differences. The chief merit of the increasingly popular convenience foods is their convenience. Individuals have little influence over their composition. Even foods that are described as being healthy can be high in sugar and salt, counterbalancing any benefit from added micronutrients, such as folic acid.

But discouraging the use of convenience foods is not practical; we need collective action to reduce the amounts of salt, sugar, and saturated fat in foods, and a sensible policy on portion sizes in restaurants.

For example, governments may introduce policies that try to de-normalise smoking and make it as difficult as possible for people to smoke. Why might one think that at least the state may never do so? One might think so because of various beliefs about the impossibility of in fact doing good for people against their will or because one thinks that although possible to do good it is in fact inconsistent with some normative standard which ought to prevail.

With respect to the impossibility question one might believe either that it is not possible to do any good by acting paternalistically or that although it is possible to do some good the process will almost always produce bads which outweigh the good.

If one thought that almost always more harm than good is done by the state when it acts paternalistically this raises the question of whether we can distinguish the conditions in which rarely more good than harm is done and build that into our guidelines. If this is possible, and allowing paternalism in these exceptional cases does not create further harms which outweigh the good produced, then we should sometimes be paternalists.

But one might believe that the question of whether more good than harm is produced is not simply an empirical one. It depends on our understanding of the good of persons. If the good simply included items such as longer life, greater health, more income, or less depression, then it makes it look like an empirical issue. One might believe that one cannot make people better off by infringing their autonomy in the same way that some people believe one cannot make a person better off by putting them in a Nozickian experience machine one in which they are floating in a tank but seem to be having all kinds of wonderful experiences.

Kantian views are frequently absolutistic in their objections to paternalism. On these views we must always respect the rational agency of other persons. To deny an adult the right to make their own decisions, however mistaken from some standpoint they are, is to treat them as simply means to their own good, rather than as ends in themselves.

In a way anti-paternalism is already incorporated into Kantian theories by their prohibition against lying and force—the main instruments of paternalistic interference. Since these instrumentalities are already denied even to prevent individuals from harming others, they will certainly be forbidden to prevent them from harming themselves.

Paternalism in social policy when is it justifiable? – Parliament of Australia

Of course, one may object to the former absolutism while accepting the latter. If one believes that sometimes paternalism is justifiable one may do so for various kinds of theoretical reasons. The broadest is simply consequentialist, i. So one might prevent people from taking mind-destroying drugs on the grounds that allowing them to do so destroys their autonomy and preventing them from doing so preserves it. Note that if the theory of the good associated with a particular consequentialism is broad enough, i.

A different theoretical basis is moral contractualism. On this view if there are cases of justified paternalism they are justified on the basis that we all of us would agree to such interference, given suitable knowledge and suitable motivation.

So, for instance, it might be argued that since we know we are subject to depression we all would agree, at least, to short-term anti-suicide interventions, to determine whether we are suffering from such a condition, and to attempt to cure it.

Or we might agree to being forced to wear seat-belts knowing our disposition to discount future benefits for present ones. The justification here is neither consequentialist nor based simply on the preservation of autonomy. Rather either kind of consideration may be taken into account, as well as others, in determining what we would reasonably agree to.

Libertarian Paternalism In recent years there has been a new, influential, strand of thought about paternalistic interferences. It has been referred to as New Paternalism or Libertarian Paternalism. It is influenced by research in the behavioral sciences on the many ways in which our cognitive and affective capacities are flawed and limited.

The first theorists to emphasize these findings for making social policy were the Nudgers—Cass Sunstein and Richard Thaler They argued that since people were such bad decision makers we should nudge them in the direction of their own desired goals by orchestrating their choices so that they are more likely to do what achieves their ends.

The claim is that, unlike traditional paternalism which rules out choices by compulsion or adds costs to the choices by coercion ,nudges simply change the presentation of the choices in such a way that people were more likely to choose options that are best for them. In addition they argue that any arrangement of choices will make some choices more or less likely so that some decision about the choice architecture is inevitable.

Here are various examples of Nudges. These were given in the earliest discussions of nudging and have tended to be the ones focused on. In order to influence students to make healthier food choices as they pass the cafeteria options place the healthy foods at eye level and place the less healthy choices higher or lower than eye level.

Sometimes the nudge involves putting the healthful food earlier in the line. Given that many employees often fail to enroll opt-in in retirement plans, employers make the default automatic enrollment in such programs, allowing employees to easily opt-out.

Tim Keller: "Making Sense of God: An Invitation to the Skeptical" - Talks At Google

Such programs have been shown to increase savings rates. Employees are are asked to commit now to having a portion of their salary increase in subsequent years put directly into their pension plan. People are loss averse, and thus more willing to forgo a raise in take-home income then they are to actively re-direct the additional funds they have already received to their retirement accounts each year.

Using smaller plates in a cafeteria cuts down on the amount of food consumed. In order to get drivers to slow down on a sharp turn the lane lines are painted closer together than usual.


This creates the illusion for the drivers that they are driving faster than they actually are and they slow down as a result. The initial examples above served as the focus of much of the early literature. The early critics attempted to distinguish interventions such as Cafeteria from interventions such as merely providing information. It is clear from more recent writings that the category of nudges is intended to be quite broad.

According to Sunstein all the following are nudges: Examples include the number of choices, whether the choice is opt-in or opt-out, the way in which alternatives are described or presented, the incentives attached to the choices, etc.

Their view is Libertarian because it preserves freedom of choice. No choice is eliminated or made more difficult. The choice set remains the same. No significant costs or incentives are attached to the choices the agent faces. Their view is Paternalistic because it seeks to promote the good of the agent being nudged. And it is the good as viewed by the agent herself.

We are not nudging towards ends she does not hold. Nudging is about means not ends. Their definition of Paternalism is very weak in the sense that it allows many more acts to count as paternalistic than would be under almost all traditional definitions of paternalism. In terms of the analysis of Paternalism given in this entry is Nudging paternalistic?

The first condition in the definition is: Nothing corresponds to this in the definition above. Putting a warning label on a cigarette pack does not interfere with the liberty of autonomy of any cigarette smoker.

  • Paternalism in social policy when is it justifiable?

Basically, the definition of paternalism in Libertarian Paternalism is focused solely on the fact that nudges are being used to make the agents being nudged better off. Whether this expansion of the definition of paternalism is warranted or not is a matter of what issues are being explored and whether such an expansion makes things clearer or more confused.

There are nudges which are not paternalistic on their definition because the aim is to promote the general good—even if the chooser is not benefitted. Nudging building managers to put in elevators with braille buttons, influencing people to contribute to Oxfam by putting up pictures of starving infants, are examples where the good to be promoted is the welfare of people other than those being influenced.

However one comes out on the issue of whether the definition of paternalism is useful or not we turn to the more important issues about whether, and in what circumstances, nudges are justifiable ways of influencing persons to make certain choices. As with any policy intervention, either by the state or by private organizations, there are possible misuses to worry about. Perhaps there are slippery-slopes to be avoided. Perhaps proponents of nudging over-estimate the amount and seriousness of faulty reasoning by agents; mistakes that nudgers wish to harness to promote the agents welfare.

Perhaps they are mistaken about what agents really value when they claim people prefer health to more sugary beverages. But these objections are not objections to nudging but to the misuse of this type of behavioral intervention. Are there objections to the very nature of nudging itself?

There is one feature of many nudges that must be considered which, although not intrinsic to the concept of a nudge, is often present in the background as a crucial feature.

One author actually links these background conditions to the definition of Libertarian Paternalism. Libertarian Paternalism is the set of interventions aimed at overcoming the unavoidable cognitive biases and decisional inadequacies of an individual by exploiting them in such a way as to influence her decisions in an easily reversible manner towards the choices she herself would make under idealised conditions.

It is because of cognitive bias to doing nothing to change the status quo that there are relatively fewer opt-outs than might be expected. Given this background, there are at least three objections that have objected to features intrinsic to some—by no means all—nudges. The first is that nudging often occurs without the nudged being aware they are being nudged. The second is that nudging often works by harnessing defects in the thinking of those being nudged.

The third is that some nudges besides those subject to the first two objections are forms of objectionable manipulation. In the Cafeteria example the students are aware that food has been placed at different levels of eyesight.

In that sense the nudge is transparent to them. It is not like subliminal messaging in which they are not aware of messages directed to them.

Let us call nudges which are transparent in this sense narrow nudges. This did increase the rate of payment. Most workers questioned about the painting either had not noticed it at all or made no connection with the issue of payment. In the cafeteria example while aware that the food is on different levels the students are not aware that the placing of the food has been done in order to promote a certain end—eating more healthy foods.

The placement of the food is not random, nor motivated by aesthetic considerations. It is deliberate and motivated by a particular set of considerations. Some nudges are more transparent in the sense that it is obvious they have been deliberately introduced and their motivation is also clear. Call these broad nudges. There is some evidence that making nudges broad does not interfere with their efficacy. A recent study in the context of end-of-life care showed the effect of a default is not weakened when people are told that a default was chosen because it is usually effective Lowenstein et al.

Note that there could be an even more transparent feature of nudges—call them very broad nudges. This would be when the mechanism by which the nudge influences is made public as well. Suppose we presented an opt-out set up and said 1 we are doing this to increase participation in the retirement program, and 2 if this is effective it is because people have a tendency to stick with the status-quo. Nudges which are neither narrow nor broad—such as subliminal messages to movie-goers to buy fruit instead of popcorn—might be an effective way of encouraging consumption of healthier food.

But they seem to have a morally dubious character.

dworkin paternalism some second thoughts about relationship

Even if the facts are that such messages have rather weak efficacy we object to their by-passing any possibility to avoid or resist them. Sunstein has put forward what he calls a transparency condition: Choice architecture should be transparent and subject to public scrutiny, certainly if public officials are responsible for it.

At a minimum, this proposition means that when such officials institute some kind of reform, they should not hide it from the public…If officials alter a default rule so as to promote clean energy or conservation, they should disclose what they are doing.

The government could announce in advance that they are going to use subliminal messages on television programs to promote health. Sunstein believes that this would satisfy his transparency condition but that it might be objectionable on grounds of manipulation.

It remains open for discussion how to formulate a norm which is closer to the intuitive idea of transparency, to distinguish various sense of transparency—such as narrow and broad—and to debate whether such transparency is a necessary component of legitimate nudges.

Must, for example, the public utility which hopes to encourage energy conservation preface its informational message about the average consumption of your neighbors with the fact that they are sending this information because they think it will encourage conservation?

Does it have to disclose they believe it may do so because people have a tendency to conform to what their neighbors are doing? Why is transparency required? One possible objection to non-transparency is that it interferes with the autonomy of those influenced.

Another issue concerning autonomy is whether it is affected by both intentional and unintentional nudges. Are the choices more autonomous in this case than in a case in which the food is placed in exactly the same way but deliberately in order to affect the choices? Consider the cafeteria example. The reason we place the healthy foods at eye level is because there is a tendency to choose what is at eye level over options that are not.

The thought is that nudgers can harness this tendency by putting healthy foods at that level. Since the positioning of foods is not a rational ground for choosing nudgers use this non-rational tendency so that healthy foods are chosen.

Note in this case we get both a lack of transparency and the harnessing of non-rational tendencies. Some argue that taking advantage of our non-rational tendencies, even for good ends, is objectionable. Consider the opt-out nudge. It relies upon, and works in virtue of, the fact that we tend to go with the given even if there are better options easily available.

It is because we irrationally choose the worse option that we present the better option for the agent to choose irrationally. It is one of the most confirmed findings of empirical decision theory that subjects decisions are affected by different ways of presenting information.

It is irrational to make the decision differently depending on how it is worded.

Paternalism (Stanford Encyclopedia of Philosophy)

This harnessing of the irrational for our own good is not paradoxical but it strikes some as problematic in the same way getting children to read by offering them financial incentives is problematic. We are getting them to read for the wrong reasons. At least in these cases there is the idea that once reading they will come to appreciate the pleasures and importance of reading for its own sake. But do people who stick with opt-in out of a tendency to stick with the given learn to change their faulty heuristic?

If anything, it is reinforced because their faulty heuristic has a good consequence. If we think of cases of rational persuasion, then in the ideal case, we would find that the agent chooses because she believes she been given reasons, these reasons support her choice, and she acts because of those reasons.

In the case of harnessing non-rational tendencies for nudges these conditions are not satisfied. It is a good thing that, usually, we act not simply in accordance with the reasons there are to act, but also out of, in recognition, of those reason. It is clear that while many nudges as defined harness bad reasoning, most do not. Some do not harness reasoning at all, e. The charge of manipulation is raised often against the acts of others even when, like nudging, they are benevolently motivated.

We think of manipulation, like other forms of paternalism as failing to respect us as rational and capable choosers.