Avoiding Paternalism

Many people think paternalism is wrong: that it is wrong for the government to limit our liberty for our own good. Some government policies that seem paternalistic, however, also seem morally permissible, at least to many of us, seatbelt laws, for example. For this reason some philosophical opponents of paternalism seek to show that no widely supported policy is really paternalistic, by identifying a good nonpaternalistic justification for the seemingly paternalistic policies that most of us endorse. In this way they aim, as Joel Feinberg puts it, “to reconcile our general repugnance for paternalism with the seeming reasonableness of some apparently paternalistic regulations.”1 This project of reconciliation would be important if paternalism were always wrong, but I see no good reason to think so. Paternalism seems repugnant because it seems infantilizing. In limiting our liberty for our own good, it seems that the government treats us like children or that it impedes our development into fully mature adults, but there is no reason to think this is true of every paternalistic policy. Some liberties have a special value in symbolizing the status of adulthood within our society, the freedom to marry, for example. Having this freedom also provides an important kind of control over the shape and direction of our lives, and creates important opportunities for deliberation and choice. So it makes sense to think the government would treat us like children if it were to make our marital decisions for us. Not every liberty, though, has this kind of significance: the freedom to drive without a seatbelt does not. So there is little reason to think that every paternalistic policy is infantilizing in this way. Paternalism may be disrespectful on some other ground, but I do not think it always is, and in what follows I explain why. My goal here is not to defend any particular paternalistic policy, but to challenge the general presumption against paternalism that I believe distorts our thinking. Some government policies, such as drug and prostitution laws, strike us as paternalistic, I think, because the paternalistic reasons for these policies strike us as the most compelling, at least when our antipaternalistic guard is down. If, however, a general principle of antipaternalism is valid, then we should evaluate these policies by evaluating whether or not there is sufficient nonpaternalistic reason for them. In this way a principled antipaternalism requires us to ignore the reasons that initially strike us as the most compelling. Of course these reasons may not be the strongest, and they may in any case be too weak. Nonetheless I believe that our evaluation of such policies will be more sensitive to the relevant considerations if we freely consider the paternalistic reasons in their favor and conclude that they must be justified nonpaternalistically only after we conclude that the paternalistic reasons are too weak to justify the specific burdens these policies impose. I should say at the outset that it is wrong in my opinion for the government to limit certain basic liberties such as freedom of political expression for paternalistic reasons. My claim here is only that paternalistic interference with some liberties may be justifiable. I will not attempt to defend a general theoretical distinction between those liberties that may be limited for paternalistic reasons and those that may not be, but I assume that a nonarbitrary distinction can be defended. I also assume that the government has a general moral obligation to recognize and protect against paternalistic interference a sufficiently wide range of important life-shaping decisions to ensure that we have adequate control over our lives, enough to achieve genuine autonomy and independence. My position is that since some paternalistic policies are compatible with this general obligation, there is no compelling reason to think that paternalism is always wrong. The project of reconciliation is to show that there are good nonpaternalistic justifications for the seemingly paternalistic policies that many of us endorse. A recent example is Seana Shiffrin's nonpaternalistic defense of the unconscionability doctrine in contract law, according to which the courts are justified in refusing to enforce unconscionable contracts by the fact that a government has no general obligation to facilitate agreements that its citizens regard as exploitive or seriously immoral.2 Another recent example is Elizabeth Anderson's nonpaternalistic defense of compulsory contributions to health insurance and retirement programs, according to which the government is justified in taxing us to fund these programs by the fact that we have a general obligation to secure the conditions of everyone's freedom as a democratic citizen and a person who is sick or impoverished in old age cannot participate fully in the democratic process.3 Whether these arguments can establish, however, that the relevant policies are not paternalistic depends partly on what paternalism is. We commonly say that a policy is paternalistic if it limits a person's choices “for her own good,” where this is to limit her choices for a certain kind of reason: that this policy will promote her welfare or improve her situation in some other way. What is it, though, for the government to limit a person's choices “for” a reason? A natural answer is that the government limits a person's choices for a reason if and only if it adopts this policy because (and only because) those in the relevant political process (legislative, judicial, or administrative) count this reason in its favor. This suggests a motivational interpretation of paternalism: a policy that limits a person's choices is paternalistic toward that person if and only if the government adopts this policy because those in the relevant political process count the fact that it will benefit this person as a reason in its favor.4 This interpretation of paternalism fits poorly, however, with the project of reconciliation. To see why, consider a tension in Shiffrin's position. Her article aims to show that the unconscionability doctrine need not be “defended on paternalist grounds or applied in a paternalist way”5 by presenting a plausible nonpaternalistic rationale for this policy.6 If, however, Shiffrin's “motive-based characterization of paternalism”7 is correct, it is, strictly speaking, not necessary to provide a plausible nonpaternalistic rationale for this policy in order to show that it need not be paternalist, since the mere psychological possibility of a nonpaternalistic motive, no matter how feeble a justification it provides, suffices to show this.8 Furthermore, if Shiffrin's motive-based characterization of paternalism is correct, then the nonpaternalistic rationale for the unconscionability doctrine that she proposes does not actually show that this policy is not paternalist, even if it provides a fully adequate justification, since the availability of a fully adequate nonpaternalistic justification for a policy does not entail that government officials are not paternalistically motivated in adopting and applying this policy.9 It is tempting in view of this tension to characterize paternalism without reference to motive, but characterizations of this kind have odd consequences. Suppose we say that a policy is paternalistic toward A if and only if it can be justified only by paternalistic reasons (understanding paternalistic reasons as those that cite some benefit to A that A does not want).10 It follows from this analysis that every paternalistic policy is justifiable (since if a policy can be justified only by paternalistic reasons, then it can be justified by these reasons, from which it follows that it is justifiable), and no one wants to claim that every paternalistic policy is justifiable. Suppose we say instead that a policy is paternalistic toward A if and only if it cannot be fully justified unless paternalistic reasons are counted in its favor. From this it follows that every unjustifiable policy is paternalistic (since if a policy cannot be justified, then it cannot be justified unless paternalistic reasons are counted in its favor),11 and no one wants to claim that every unjustifiable policy is paternalistic. These problems can be avoided by holding that a policy is paternalistic toward A if and only if (a) this policy cannot be fully justified without counting any paternalistic reason in its favor, and (b) this policy would be fully justified if paternalistic reasons were allowed to count in its favor (which they might not be).12 But this interpretation also has odd consequences. It implies, for example, that, if the benefits of drug prohibition to potential drug abusers are too small to justify this policy, drug prohibition is not paternalistic even if it is adopted in order to protect potential drug abusers who do not want to be protected in this way and even if this policy cannot be justified in any other way.13 More generally, this interpretation entails that no policy is paternalistic if, as a matter of fact, paternalistic reasons are never strong enough to justify government policies, as some opponents of paternalism might argue.14 In light of these difficulties I believe the project of reconciliation is best understood to presuppose a hybrid characterization of paternalism that combines both motivational and justificatory elements. An example of this approach is that a government policy is paternalistic toward A if and only if (a) it limits A's choices by deterring A from choosing to perform an action or by making it more difficult for A to perform it; (b) A prefers A's own situation when A's choices are not limited in this way;15 (c) the government has this policy only because those in the relevant political process believe or once believed that this policy will benefit A in some way;16 and (d) this policy cannot be fully justified without counting its benefits to A in its favor.17 The project of reconciliation makes sense, then, because if there is sufficient nonpaternalistic reason for a policy,18 then it is not paternalistic. But this proposal also avoids the undesirable implications that every paternalistic policy is justifiable and that every unjustifiable policy is paternalistic. Finally, this proposal leaves open the possibility that some policies are genuinely paternalistic even if paternalistic reasons are, as a matter of fact, always too weak to justify the government in limiting a person's choices in ways that he or she does not want. Not everyone will be satisfied with this particular characterization of paternalism. Imagine the government makes free psychotherapy available to gays and lesbians to help them change their sexual orientation, and that it does so with the aim of helping them to lead happier, more satisfying lives, and that this policy cannot be justified in any other way. Some may think that if the intended beneficiaries do not want this policy, then it is objectionably paternalistic even if it does not, strictly speaking, limit anyone's choices. Or imagine someone who wants the government to make his marital decisions for him because he thinks he is bad at choosing a suitable mate. Some may think this policy is paternalistic, even though this person wants the government to adopt it, in virtue of the role the government would thereby play in guiding this person's life. Each of these objections might be addressed by characterizing paternalism in a different way, but I doubt that any characterization will match all our intuitions since I suspect we have different and conflicting intuitions about what policies are paternalistic. So I will simply assume that the four-part characterization stated in the previous paragraph is correct in order to focus the discussion that follows. This characterization identifies fewer policies as paternalistic than other possibilities do, but policies that meet this characterization are among those that critics of paternalism have found most troubling.19 It thus makes sense to focus on these policies here given that my aim is to challenge the view that paternalism is always wrong.20 Because our intuitions about paternalism are unsettled Shiffrin aptly observes that “clarifying what paternalism is involves considering why paternalism matters.”21 Since she believes that paternalism matters primarily because paternalistic motives are insulting, she is drawn to a motive-based characterization of paternalism.22 But one might think that paternalism matters primarily for a different reason. Government policies that limit our choices in ways that we do not want stand in need of justification. So it is important to identify the kinds of reason that can justify the government in adopting policies of this kind. If the fact that a person is benefited by a policy cannot justify the government in limiting her choices in a way that he or she does not want, the justifiable exercise of government power is to this extent limited. Paternalism matters, then, because the moral limits to government authority over our choices matter. If this is right, then reflection on why paternalism matters will support a hybrid characterization of paternalism at least as well as it will support any purely motivational characterization. Assuming, then, that some hybrid characterization is sound, government paternalism is always wrong if and only if at least one of two other principles is valid, a justificatory principle of antipaternalism and a motivational principle of antipaternalism. The precise content of these principles will depend on which version of the hybrid approach is best. Assuming, though, for the sake of argument that my four-part characterization is correct, these principles can be stated as follows. The justificatory principle of antipaternalism: if there is a policy that limits A's choices in some way and A would prefer her situation without this policy, then it is wrong for the government to adopt this policy unless it can be fully justified without counting any benefit to A in its favor. The motivational principle of antipaternalism: if there is a policy that limits A's choices and A would prefer her situation without this policy, then it is wrong for government officials to adopt this policy with the aim of benefiting A. If neither of these principles is valid, then “our general repugnance” toward paternalism is unwarranted. So my aim in this article is to challenge the validity of these two principles.23 Recent endeavors to reconcile widely accepted government policies with the principle of antipaternalism presuppose that paternalism is insulting, demeaning, or disrespectful in some way.24 If paternalism is insulting in virtue of its motive, as Shiffrin contends,25 then success in the project of reconciliation does not directly address what is objectionable about it, since government officials might have paternalistic motives even if there is a good nonpaternalistic justification for the policies they endorse. Success at reconciliation would still be of indirect value, though, since it would show how government officials might justifiably support the same policies they now support without having the insulting attitudes toward other citizens that paternalistic motives are thought to involve. What I question in this section is whether there is any good reason to think that paternalistic motives are inherently insulting, in order to challenge the validity of the motivational principle of antipaternalism. When a government official adopts a policy that someone does not want in order to benefit this same person, she assumes this person has an interest in this policy, or that there is good reason for this person to prefer his own situation under this policy. In supporting an unwanted policy for a paternalistic reason, government officials therefore support this policy from the same general concern to protect or advance individuals’ interests that might properly motivate them to support any government policy. What is insulting about this? Shiffrin suggests that paternalism is insulting because in limiting a person's liberty against his will for his own good, the government “substitutes its judgment” about what is good for this person for his own judgment about what is good for him.26 The government, however, commonly “substitutes its judgment” for the judgment of others when it adopts an unwanted policy, whether this policy is paternalistic or not. When the government imposes speed limits, for example, it limits the liberty of those who think they should drive faster than the speed limit allows, and so limits their liberty against their will. In so doing, the government substitutes its judgment that motorists should not drive faster for the judgment of those motorists who think they should drive faster. When the government imposes a speed limit paternalistically it acts on the judgment that the reasons of safety for a motorist to drive slower outweigh the reasons of efficiency and amusement for this same motorist to drive faster, and so substitutes its judgment about the relative weight of these reasons for this motorist's own judgment that the reasons of efficiency or amusement for her to drive faster outweigh the reasons of safety for her to drive slower. But when the government imposes a speed limit nonpaternalistically, it also substitutes its judgment for a motorist's own. It acts on the judgment that the reasons of safety for other motorists to want this person to drive slower outweigh the reasons of efficiency and amusement for her to drive faster, and so substitutes its judgment about the relative weight of these reasons for her own judgment that the reasons to drive faster outweigh others’ reasons against it. In both cases, the government limits a person's liberty on the basis of a judgment about the relative weight of reasons that she rejects and so “substitutes its judgment” for hers. Why, then, is paternalistic substitution in judgment insulting assuming that nonpaternalistic substitution is not? Some may suggest that it is inaccurate to claim that the government substitutes its judgment for the judgment of motorists in adopting speed limits for nonpaternalistic reasons. They may think that a driver in deciding to drive fast is simply making a judgment about what is best for him, and it is therefore a misdescription to say that the government is substituting its judgment about what is best all things considered for his judgment about what is best all things considered. One might say the same thing, however, about speed limits that are adopted for paternalistic reasons. In deciding to drive fast a driver is not making a considered judgment about what is best for him, one might say; he is simply attending to the advantages of driving fast, and not really thinking about the possible risks. If so, then the government in adopting speed limits for paternalistic reasons is not substituting its considered judgment about what is best for this driver for his own considered judgment about what is best for him. It is true that this driver might be acting on the basis of a considered judgment about what is best for him, in which case the paternalistic regulation would involve a substitution in judgment. But we are justified in believing this only on the assumption that his decision to drive fast has resulted from a deliberative process in which the most relevant prudential reasons have been given some weight (perhaps unconsciously). Since in the abstract we are no more justified in assuming this than we are in assuming that a driver's decision to drive fast has resulted from a deliberative process in which the most relevant nonprudential reasons have been given some weight (perhaps unconsciously), it follows that if we are justified in holding that paternalistic speed limits generally involve a substitution in judgment, we are also justified in holding that nonpaternalistic speed limits generally do. Shiffrin suggests that an insulting substitution in judgment takes place whenever the government exercises its authority over an area of choice that is properly left to the individual,27 and on this interpretation nothing is assumed about the character of the deliberations of the agent whose liberty is limited. But if the imputation of an insult depends in this way on judgments about what choices are properly left to the individual, then, for any seemingly paternalistic policy, it is possible to address the charge that it is insulting by arguing that it is a morally justifiable and legitimate exercise of government authority.28 If, then, as I suggest below, some paternalistic reasons are sufficient to justify the government in limiting a person's liberty against his will, the government in adopting a paternalistic policy does not necessarily substitute its judgment in this sense and so insults no one in doing so. The limited claim so far is that both paternalistic and nonpaternalistic policies involve a kind of “substitution in judgment.” But one might think a paternalistic substitution in judgment is especially insulting because the capacity to make judgments about what is best for oneself is more fundamental to the capacity for practical reasoning than the capacity to make judgments about what is best all things considered, so that the judgment that a person is wrong about what is best for himself imputes a greater degree of practical incompetence to him than the judgment that he is wrong about what is best all things considered. There is no reason to agree, though, that the capacity to make judgments about what is best for oneself is more fundamental, and in any case erroneous judgments about what is best for oneself do not always betray a greater degree of practical incompetence. Thus the neglect of children in one's care ordinarily betrays a greater degree of practical incompetence than the decision to engage in some moderately self-destructive activity. Of course a person may feel insulted by what he perceives to be a paternalistic restriction of his liberty, and this may contribute to the sense that paternalistic substitution in judgment is especially insulting. A person's feelings, though, are not enough to justify the conclusion that the government insults him by adopting a policy. Thus, although some segregationists may have felt insulted by the federal policy of public school desegregation, it does not follow that the federal government insulted anyone by adopting this policy. The government insults someone in adopting a policy only if government officials actually express an insulting belief or attitude toward someone in doing so. Anderson writes that when the government limits a significant liberty of citizens against their will for their own good it is “effectively telling citizens that they are too stupid to run their lives, so Big Brother will have to tell them what to do.”29 Since government officials need not say this to anyone, the thought must be that, however polite and civil their demeanor, government officials express the insulting belief that someone is too stupid to run his own life whenever it limits a significant liberty against that person's will for his own good. Anderson does not claim that paternalistic interference with liberties is insulting in this way, but her suggest a way in which all paternalistic policies might be insulting. In supporting a policy that limits a person's liberty against his will for his own good a government official must assume that someone is than she is to what is best for this person with to a particular such as whether or not to a This may to express the belief that this person is in practical judgment are though, whether they are about what is best for oneself or about what is best all things considered. So the that someone is wrong about what is best for him with to a particular decision does not that he is It only that his is and so is open to the kinds of we all on paternalistic motives may be disrespectful in some other way. It would be disrespectful if paternalistic reasons were always too weak to justify the government in limiting a person's liberty against her will, because on this assumption an official in acting on these reasons would thereby show an objectionable for a person's legitimate interests in on paternalistic motives would be disrespectful in a different way if, of their counting paternalistic reasons were to some principle the validity of which partly our moral status as So in the section I will question whether paternalism is disrespectful in of these This will the argument against the motivational principle of antipaternalism in this section and the argument against the justificatory principle of since the now to the way I have there is always a reason of against any paternalistic policy, which in the fact that someone would prefer her situation when her choices are not limited in this way. Since autonomy is of value, it is natural to think that reasons of always have If these reasons were always to outweigh paternalistic this would explain why paternalistic policies are always wrong. There are at least two reasons, though, to doubt that reasons of always outweigh paternalistic reasons. autonomy involves more than not having one's choices limited in ways that one does not want. It also involves having adequate control over one's life as a and acting on the basis of reflection on what is right, and good. These of autonomy provide reasons for government policies that limit choices and not only for policies that protect choices. They provide reasons for policies that that will us, for example, or that will us and and so to think for or on of this kind are sufficient to justify the government in limiting a person's choices when these choices are not for and they are sufficient even when a person does not want his choices to be limited in this way. So to the value of autonomy does not explain why reasons of always outweigh paternalistic The reason for doubt is that reasons of are by nonpaternalistic reasons that seem than paternalistic To consider the policy of a to from in its after Some are to this policy, but this policy benefits and by the at by the of they are with the undesirable choice of an and or seeming in refusing to order This is not a bad reason, but it seems than the paternalistic reasons for this policy. This is because the goal of deterring an from a that may him his life or him seems more important than the goal of the of officials the undesirable choice especially since the might be only by and since the to the of these might be by is So if this nonpaternalistic argument is strong enough to justify this policy, it seems the paternalistic reasons must also be strong in this a over The of paternalism is by this policy, some because it is both and paternalistic. that this policy is not really paternalistic since it to the of health care to the of us by the of people who need care to Suppose for the sake of argument that can be fully justified in this way. The by which this policy the of health care to any one of us is so small as to be and so this nonpaternalistic reason to to is weak. If this reason can justify the government in adopting a policy that some then reasons of do not always have such weight when against nonpaternalistic reasons. But then it seems to that reasons of always have weight when against paternalistic reasons since the paternalistic reasons for this policy seem than the nonpaternalistic is, it seems more important from the moral of view that the government a person's of or than that it anyone's health care by a a paternalism is always wrong because reasons of direction paternalistic reasons, and not because they outweigh paternalistic reasons are by some principle that partly our moral status as I think we are justified in such when it seems to us that a reason has some weight and there is no plausible to explain why it is

Paternalism · Political science · Sociology · Law · Legal and Constitutional Studies · Political Philosophy and Ethics · Property Rights and Legal Doctrine

• Paternalism and Equality

  Open Access•KRISTIN VOIGT•New Perspectives on Paternalism…•2015

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• Paternalism and our Rational Powers

  Michael Cholbi•Mind•2016

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• Antipaternalism as a Filter on Reasons

  Open Access•Kalle Grill•New Perspectives on Paternalism…•2015

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• Children, Adults, Autonomy and Well-Being

  Open Access•David Archard•Nature of Children's Well-Being•2015

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• Hard Paternalism and Confucian Familism

  Open Access•Andrew Tsz Wan Hung•Fudan Journal of the Humanities…•2024

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• Please wear a mask

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• Designing a just soda tax

  Open Access•Douglas Mackay, Alexandria Huber-Disla•Economics and Philosophy•2024

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• Politics and Foreign Donations

  Open Access•Andreas Bengtson, Daniel Timmer•Journal of Ethics and Social…•2026

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• The ethics of state consent to international law

  Open Access•Carmen E Pavel•Global Constitutionalism•2025

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• Paternalism and Evidence of Incapacity

  Open Access•Suzie Kim•Res Publica. Revista de Historia…•2022

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• I Have Got a Personal Non-identity Problem

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• Harm and Helmets

  Open Access•Devin J Christensen•Political Research Quarterly•2021

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• What Should Egalitarian Policies Express? The Case of Paternalism

  Open Access•Anne-Sofie Greisen Hojlund, Anne‐Sofie Greisen Hojlund•Journal of Political Philosophy•2021

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• For the Greater Individual and Social Good

  Open Access•Viki Møller Lyngby Pedersen•Utilitas•2023

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• Paternalism as Punishment

  Open Access•David Birks•Utilitas•2020

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• On the Anti-paternalist Project of Reconciliation

  Open Access•Viki Møller Lyngby Pedersen•Utilitas•2018

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• The Problem of Paternal Motives

  Open Access•Chris Mills•Utilitas•2013

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• The Paternalistic Argument against Abortion 1

  Open Access•Itzel Mayans, Moisés Vaca•Hypatia•2017

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• What is wrong with anti-paternalism

  Open Access•Michal Sládeček•Filozofija i drustvo•2024

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• Paternalism, respect and dialogue

  Open Access•Suzie Kim•Philosophy & Social Criticism•2023

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• Benevolent absolutisms, incentives and Rawls’ The Law of Peoples

  Open Access•Pietro Maffettone•Politics Philosophy & Economics•2016

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• A Normatively Neutral Definition of Paternalism

  Emma C Bullock•The Philosophical Quarterly•2015

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• Is Anti-Paternalism Enough

  Open Access•Viki Møller Lyngby Pedersen, Søren Flinch Midtgaard•Political Studies•2018

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• In Defense of Intentionally Shaping People’s Choices

  Open Access•Viki Møller Lyngby Pedersen•Political Research Quarterly•2022

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• What (If Anything) Is Wrong with Positive Liberty

  Alison Mcqueen•Critical Review•2020

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• Mitigating Servility

  Open Access•Anne-Sofie Greisen Hojlund•British Journal of Political…•2022

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• Autonomia, paternalismo e dominação na formação das preferências

  Open Access•Luís Felipe Miguel•Opinião Pública•2015

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• Medical Paternalism - Part 1

  Open Access•Daniel Groll•Philosophy Compass•2014

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• What Is the Point of Equality?

  Elizabeth S Anderson, Liz Anderson•Ethics•1999

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• Paternalism and Rights 1

  Open Access•Samantha Brennan•Canadian Journal of Philosophy•1994

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• What Is a Child

  Tamar Schapiro•Ethics•1999

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• Paternalism, Unconscionability Doctrine, and Accommodation

  Open Access•Seana Valentine Shiffrin•Philosophy & Public Affairs•2000

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• Libertarian Paternalism Is Not an Oxymoron

  Cass R Sunstein, Richard H Thaler•The University of Chicago Law…•2003

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