Abstract
Cass Sunstein and Richard Thaler have been arguing for what they named libertarian paternalism (henceforth LP). Their proposal generated extensive debate as to how and whether LP might lead down a full-blown paternalistic slippery slope. LP has the indubitable merit of having hardwired the best of the empirical psychological and sociological evidence into public and private policy making. It is unclear, though, to what extent the implementation of policies so constructed could enhance the capability for the exercise of an autonomous citizenship. Sunstein and Thaler submit it that in most of the cases in which one is confronted with a set of choices, some default option must be picked out. In those cases whoever devises the features of the set of options ought to rank them according to the moral principle of non-maleficence and possibly to that of beneficence. In this paper we argue that LP can be better implemented if there is a preliminary deliberative debate among the stakeholders that elicits their preferences, and makes it possible to rationally defend them.
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Notes
Actually, it could be objected that there is a 6th option, that is, ‘maximizing choice’. However we think that Sustein and Thaler maintained that this one has to be considered as the default option.
“Principle of beneficence refers to a statement of moral obligation to act for the benefit of others. Many acts of beneficence are not obligatory, but some forms of beneficence (…) are obligatory.” (Beauchamp and Childress 2006: 197).
On omission, see Boniolo and De Anna (2006).
This latter condition is not well-defined. Any change introduced in an architecture changes somehow costs and incentives. Sunstein and Thaler themselves claim, in note, that some of their own nudges alter incentives. Thus, they loosen their own definition saying that “[n]udges count as such, and qualify as libertarian paternalism, only if any costs are low” (Thaler and Sunstein 2008, 8). This adjusted definition, though, lacks any precise reference to a cutoff that would be needed in order to define which costs count as low.
According to Thaler and Sustein, the combination of loss aversion with mindless choosing may explain behavioral inertia. It follows that “if an option is designated as the ‘default’, it will attract a large market share” (Thaler and Sunstein 2008, 35).
For a survey on hyperbolic discounting see Frederick et al. (2002).
The term “internality” was introduced by Herrnstein et al. (1993).
We will get to this point further on.
Default options for organ donations are just the most astounding success story (Johnson and Goldstein 2003).
A good example of the exploitative nature behind LP can be found in Dan Ariely’s Predictably Irrational (2009). Although Ariely is not to be counted among LP advocates, the body of knowledge he is a contributor to, is the same to which LPs make appeal. Ariely describes what he calls the decoy effect: when people are presented with alternatives, they generally fancy having comparables. This results in astounding outcomes. When presented with three options A, B, (differently featured) and—A (practically identical to A, but with some slight deficiencies) people tend to choose A more than if they were only presented with A and B. This happens also when people have to choose a partner. Ariely ends up saying that “if you compared with a “–you,” the decoy friend will do a lot to make you look better, not just in comparison with the decoy but also in general, and in comparison with all the other people around. It may sound irrational (and I can’t guarantee this), but the chances are good that you will get some extra attention” (Ariely 2009, 15). This trivial example suggests that whoever is in the position to use the relevant knowledge, he/she should do so to his/her own advantage, rather than trying to debias themselves or help others be debiased.
One’s welfare may be said to depend on the degree to which his/her preferences go satisfied.
The focus of their argument was confined to policies concerning obesity.
For a discussion on deliberative democracy and its story, see Boniolo (2012).
This is what an advocate of a version of positive freedom like John Dewey would claim. Whatever pursuit one might engage is, it is valuable because it is the realization of a project-for-us and not because it achieves some self-interested goal. “[D]emocracy […]is primarily a mode of associated living, of conjoint communicated experience” (Dewey 1934, 87).
This is also the reason why private firms should not be subject to the constraints of deliberation. Private firms do not seem to owe any particular toll to the foundations of democracy.
Which, as we argued above, does not entail any washing-away of previously existing dispositions.
For the correlation between deliberation and ligitimisation, see Boniolo (2012).
Concerning the revisability of any deliberative conclusion, see Gutman and Thompson (2004, 133).
The evidence cited concerning the experiment conducted by Collin Payne at the New Mexico State University College of Business is said to be contained in personal communication between Payne and the Cabinet Office (2010).
This, of course, unless one assumes that everyone prefers being healthy over eating junk food.
That policies can be forged by some group of properly chosen experts. At the very least, the fact that LP advocates do not mention the procedure to be deployed for the choice of the experts is a clue that they do not mean to include ‘the public’ in the choice of the relevant policies.
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Acknowledgments
We would like to acknowledge the friends and the colleagues with whom we have debated about this topic. In particular, we would like to thanks the students of the PhD program in “Foundations of the life sciences and their ethical consequences” of the European School of Molecular Medicine (SEMM, Milano).
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Schiavone, G., De Anna, G., Mameli, M. et al. Libertarian paternalism and health care policy: a deliberative proposal. Med Health Care and Philos 17, 103–113 (2014). https://doi.org/10.1007/s11019-013-9502-4
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DOI: https://doi.org/10.1007/s11019-013-9502-4