Behavioral Paternalism or the possibility of paternalism

Behavioral Paternalism Or the Possibility of Paternalism Summary: In this article I address the question of the moral legitimacy of paternalism. Paternalism is considered illegitimate a) when it acts under false pretenses to satisfy the interest of the paternalist agent, b) when it violates the individual autonomy of the people interfered with and c) when it does not respect the equality between people by singling out those who are deemed unable to decide for themselves. Over the last decade, however, a new type of paternalism has emerged thanks to the groundbreaking works of some behavioral economists. This new type of paternalism, that has become popular through Sunstein and Thaler’s Nudges, challenges the view that paternalism is unacceptable today. The aim of this paper is to assess its moral legitimacy (not exclusively focusing on the autonomy proviso). The idea of paternalism has suffered dramatically since the decline of the nineteenth-century model of entrepreneurial capitalism. As a social practice, it is widely considered as a patronizing and morally inappropriate conduct to adopt for any individuals benefiting from a superior economic, social or political position. The philosophical debate over the legitimacy of paternalism, however, twice endeavored to challenge this view. A first wave of arguments in favor of paternalism dates from the 1970s 1, a second only started a few years ago under the influence of major behaviorist thinkers. It emerges from all these contributions that modern paternalism no longer bears resemblance to social or religious charity. In the 1970s paternalism was essentially considered from a legal point of view (Feinberg, 1983, Feinberg, 1986, Dworkin, 1971) or, if not, from a medical point of view (Buchanan, 1978, Gert and Culver, 1976, Dworkin, 1983). The questioning, however, remains the same: under what conditions can paternalism be morally acceptable? In the nineteenth-century entrepreneurial or social paternalism was often perceived as serving the interests of the dominant class under false pretenses. Paternalism was thought immoral because it was not genuinely altruistic. Since WWII legal paternalism has been criticized for being intrusive and coercive. Paternalism was then thought immoral because it was perceived as a threat to individual freedom. A few years later paternalism suffered another philosophical blow when it emerged that it was also violating individuals’ basic right to equality (Dworkin, 1978, Anderson, 1999, Arneson, 2005). As one can see, the moral demands made to paternalism have shifted over time and conformed to new ideologies. But none disappeared altogether. It is still considered immoral for paternalism to be self-interested, and ensuring that individuals ‘paternalized’ are treated with equal respect does not encroach upon their basic right to freedom. Theories defending paternalism have to therefore adjust to continually meet more demanding moral standards. At the beginning of the new millennium, spurred on by the success of behavioral studies, paternalism adapted itself (Jolls et al., 1998, Sunstein and Thaler, 2003, Thaler and Sunstein, 2008, Camerer et al., 2003, Loewenstein and Haisley, 2008). The aim of this paper is to assess its ‘moral robustness’ and, in particular, to check to what extent considerations on equality have been taken into account. This paper is divided into three parts. In the first I present what I consider to be the 1 Most of the original contributions as well as a number of unpublished ones (including Dworkin’s Second Thoughts) have been gathered in the volume edited by Rolf Sartorius in 1983, SARTORIUS, R.E. (1983), Paternalism. University of Minnesota Press. three main moral requirements that paternalism has to meet today, i.e. individual freedom, respect of equality and genuine moral intentions. The second part is devoted to the ‘new paternalism’ and the way it satisfies the first and second provisos (freedom and equality). The last section returns to the question of the moral intentions which, far from being obsolete, shows total relevance in the modern debate. 1. Can paternalism be moral ? The first and most intuitive argument opposed to paternalism is the respect of individual freedom. Opponents of paternalism defend a right to autonomy or self-direction (VanDeVeer, 1986). It is naturally not an absolute right. The nature of governments is to interfere with an individual’s decisionmaking process. Liberals believe that it is legitimate to do so only when individual actions are otherregarding. They hence justify legal restrictions such as the obligation for an individual to wear a helmet or a seatbelt whilst driving a car or a motorbike by the benefit reaped by others (the cost born by the collectivity) rather than by the utility the individual should expect from the measure. This means that to comply with this critic, self-regarding justifications for paternalism must always be proved inadequate to back interventions or they must be able to be otherwise justified. In practice, however, it is rather difficult to ascertain that no self-regarding justification for paternalism can ever be found or that other-regarding justifications will be sufficient (Marneffe, 2006). The question is therefore not whether paternalism is a legitimate practice but to what extent autonomy provides a justification (or not) for paternalism. For Joel Feinberg (Feinberg, 1986), the violation of individual autonomy is the sole possible justification for anti-paternalism. Conversely autonomy can also be its sole possible justification. In a certain number of cases paternalistic interventions can thus be justified by the absence or insufficiency of individual autonomy. Four factors contribute, for Feinberg, to weaken the autonomous or voluntary quality of individual decisions. Those are: 1. Coercion or threat of coercion 2. Psychological dependency (drug, alcohol, hypnosis…) 3. Emotional ascendency (depression, anger, obsession…) 4a. Misinformation, deceit or wrong belief that misleads the agent relative to the consequences of his action (I.e. accidentally taking arsenic for salt) 4b. Misinformation or a wrong belief (produced by the individual inability to gather correct information) that eventually misleads him relative to the consequences of his action. To remedy the totalitarian tendency of paternalism, Joel Feinberg proposes to vet its practice on the condition that it respects individual freedom. This ‘soft’ or ‘weak’ version of paternalism originates from Mill’s own ambiguity in his famous harm principle: ‘That principle is, that the sole end for which mankind are warranted, individually or collectively, in interfering with the liberty of action of any of their number, is self-protection. That the only purpose for which power can be rightfully exercised over any member of a civilized community, against his will, is to prevent harm to others. […] He cannot rightfully be compelled to do or forbear because it will be better for him to do so, because it will make him happier, because in the opinion of others, to do so would be wise, or even right’ (Mill, 1989: 13). Due to the ambiguity of Mill’s phrasing (‘against his will’) – but also due to a pervasive ambiguity throughout his work 2– the discussion about the legitimacy of paternalism soon boiled down to a single argument: the degree of voluntariness in the action interfered with. The notion of will can indeed either refer to a current (and temporary) desire or to a ‘true’ and rational will. From this information the nature (and hence the legitimacy) of paternalism could be inferred: a weak or soft paternalism meant to protect individuals against self-inflicting (but not fully voluntary) harm, while “in its extreme version”, a strong or hard paternalism was supposed “to guide them, whether they like 2 Commentators disagree on Mill’s positions towards paternalism. Richard Arneson, for instance, has argued that Mill’s political philosophy is not compatible with soft anti-paternalist positions ARNESON, R. (1980), 'Mill versus Paternalism', Ethics, 90, 470-89. it or not, toward their own good” (Feinberg 1983: 3). A criticism of Feinberg, however, is that he sets a sliding scale of Mill’s liberalism rather than properly offering a moral criterion of paternalism. Voluntariness is, for Feinberg, essentially based on responsibility. The five above circumstances obliterate the decision maker’s responsibility since the choices made do not express the individual character. Conversely, individuals take full responsibility for autonomous or voluntary choices “since they represent him faithfully, expressing his settled values and preferences” (Feinberg, 1989: 113). For Feinberg, misinformation always constitutes an autonomy-diminishing factor. Richard Arneson argues, however, that “a person’s actions may be authentic expressions of his personality without being deliberately chosen” (Arneson, 1980: 487). 4b is thus only acceptable if the behavior responsible for the misinformation is itself ‘out of character’, that is, which is submitted to one of the previous autonomy-diminishing factors. He concludes that voluntary choice is admittedly “important but [that it] does not plausibly have the make-or-break significance that soft paternalism attaches to it” and that it is therefore “a mistake to make a fetish of” it (Arneson, 2005). Characterizing freedom in terms of responsibility furthermore leads to terribly intricate situations (Olsaretti, 2004, Miller, 1983). This makes the concept of voluntariness rather inadequate to discriminate between the legitimate and the illegitimate practices of paternalism. The second criticism addressed to paternalism is that it violates the fundamental principle of equality. A number of liberal thinkers consider the right to equality second to none (Dworkin, 1978, Anderson, 1999, Rawls, 1971, Arneson, 2000), but they often disagree on what constitutes an unfair inequality. Paternalism primarily originates from the desire to correct inequality of luck, that is to say inequalities that do not result from individual choices. There is little merit in becoming deputy director of a company when one is born in a rich and well-educated family in the nineteenth century, and when moreover the company belongs to one’s father. It is conversely extremely difficult to access such a position when one is born in a working class family or a poorhouse orphanage, for example. This is what is called (bad) brute luck. This is the reason why, historically, the wealthy and the well-educated often felt the need to share what they believed to be undeserved luck with the working classes by providing them with free access to education. Although intuitively very appealing, luck egalitarianism has come under criticism for its demeaning attitude towards those who were deemed to be victims of bad luck. Elizabeth Anderson, in particular, argued that the point of equality was neither resources nor luck but status. And treating a category of people as children or adults as “too stupid to run their lives” (Anderson, 1999: 301) is incompatible with the respect all individuals should equally be granted. “Egalitarianism”, she writes, “ought to reflect a generous, humane, cosmopolitan vision of a society that recognizes individuals as equals in all their diversity. It should promote institutional arrangements that enable the diversity of people’s talents, aspirations, roles, and cultures to benefit everyone and to be recognized as mutually beneficial. Instead, the hybrid of capitalism and socialism envisioned by luck egalitarians reflects the mean-spirited, contemptuous, parochial vision of a society that represents human diversity hierarchically, moralistically contrasting the responsible and irresponsible, the innately superior and the innately inferior, the independent and the dependent. It offers no aid to those it labels irresponsible, and humiliating aid to those it labels innately inferior.” (Anderson, 1999: 308). What Anderson reproaches about luck egalitarianism is that it categorizes the victims of bad luck according to what they are (stupid, untalented, disabled, ugly, socially awkward, etc…). No wonder that she finds its response, paternalism, offensive. In its most traditional form (derived from the fatherchild analogy), paternalism is thus justified by the economic, cognitive or social superiority of the paternalist agent. For Gert and Culver, for instance, “paternalism can be practiced by anyone who has qualifications which he believes enable him to see better than S what is good for S’s good” (Gert and Culver, 1976: 50). Many philosophers understandably condemn paternalism for its condescending and offensive practices (Shiffrin, 2000, Anderson, 1999, Kleinig, 1983, VanDeVeer, 1986). But paternalism is only demeaning if it finds its justification in such categories. I believe, however, that this ought not to be the case, and that in order to be legitimate, paternalism ought to be grounded on positional asymmetries, i.e. when one individual has a decision-making advantage over another that is given by his position (rather than by his being). This means, in particular, that a superior economic rationality (a higher ability to compute or to order preferences) does not qualify as a good reason to interfere with someone else’s life. In addition to being demeaning for those deemed to be intellectually ill-endowed, it has disastrous totalitarian consequences as it logically grants the most intelligent individuals the ability to overturn the decisions of the normally endowed ones ‘for their own sake’ (Wikler, 1979). By contrast, it is – I contend – morally acceptable for a person to act when her relative position gives her a cognitive advantage. Take Mill’s famous example of the threatening bridge (Mill, 1989). Consider that A only knows about the poor state of the bridge because he is a local, whereas B – who is about to cross it – is foreign to the area. If B were local himself, he would not need A’s warning and would also probably warn foreigners against the danger of this bridge. A is in a relatively better position to make a decision on this matter than B. This situation does not, however, say anything about A being inherently superior to B. A similar conclusion can be drawn from difference in personal experience. Imagine Lucy, who is 16, wants to have a baby. All the adults around her try to discourage her from doing so. They are not cleverer than Lucy, and they share her belief that having children is a blessing. Nevertheless, having had the experience of parenthood themselves, they reckon that being 16 years old is too young to become a mother. Their action is legitimate because their position in life gives them a relative advantage over Lucy and they genuinely believe that they would have eventually valued being talked out of having a baby if they were in Lucy’s place 3. The third criticism addressed to paternalism is that under the false pretension of being altruistic, it actually only serves the interest of the paternalistic agent. Paternalism is said to be immoral because it is falsely moral and that it uses immoral means to conceal its real nature. The captains of industry of the nineteenth-century who built social houses, school and hospitals for their workers have often been accused of being more interested in the productivity and the low turnover of their company than by the actual well-being of their low paid and hard working employees. There is undoubtedly some truth in this. There is no point in denying it. Paternalism has indeed suffered from a long history of abusive practices. But what has been done in its name should not stop us looking for its real nature. I feel frustrated when I see a definition that automatically endorses the popular view that paternalism is a 3 It is, of course, possible to argue that if Lucy were an adult, she would still want herself to have a baby at 16, in which case her adult friends would have no rights to interfere with her choice. After all, individuals are perfectly entitled to prefer their present to their future utility. Prudence, argues Danny Scoccia, “may be rationally required, but it is a substantive value” SCOCCIA, D. (1990), 'Paternalism and Respect for Autonomy', Ethics, 100, 318-34. deceitful practice 4. In that respect, I believe that paternalism does not significantly differ from altruism: a large number of so-called altruistic actions are in fact self-interested but it does not imply that altruism, as a general practice, is wrong. So let us admit that moral actions do exist, and that paternalism can be genuinely altruistic. By altruistic I mean disinterested and benevolent. I do not contest the possibility that the agent might have some indirect and/or long-term interest in his benevolent action. After all, we all ultimately gain from altruism. I merely consider that his action is altruistic if it is not motivated by self-interest. To borrow Thomas Nagel’s phrase, it is “a willingness to act in consideration of the interests of other persons, without the need of ulterior motives” (Nagel, 1970: 79). Moral paternalism relies on the possibility of altruism. Paternalism, I said, must firstly be morally and altruistically motivated. The rule equally applies to individuals and to political institutions. This means that paternalistic actions cannot be primarily motivated by self-interest. For some reasons, however, legal paternalism is often illustrated by cases that do not epitomize this basic principle. To what extent are the obligations to wear a helmet or a seat belt whilst driving, the speed regulations, or the smoking and drinking regulations purely altruistic actions? Car accidents and alcohol or cigarette-related cancers bear a huge cost to society, and there are strong reasons to assume that advertisements, taxes and regulations on these matters are partly motivated by a desire to cut down their financial cost. If it were an inter-personal case of paternalism, this ambiguity would cast serious doubts on its legitimacy. Likewise, I believe that it also strongly undermines the case for legal paternalism. One cannot possibly assume these regulations to be morally motivated. There is a priori no reason therefore to distinguish them from any other legal control. 4 For Allen Buchanan, for instance, “[P]aternalism is usually characterized as interference with a person’s liberty of action, where the alleged justification of the interference is that it is for the good of the person whose liberty of action is thus restricted.”[I underline] BUCHANAN, A.E. (1978), 'Medical Paternalism', Philosophy and Public Affairs, 7, 371-90. Most attempts to explain altruism in decision theory rest upon an empathetic conception of altruism (Fehr and Schmidt, 1999, Gintis et al., 2008, Kolm and Ythier, 2006, Sen, 1991, Kirman A and Teschl M, 2010, Elster, 2009). An ‘altruistic’ agent is an agent whose well-being is functionally linked to other people’s well-being. She is therefore as interested as anyone else, the only difference being that her preferences are essentially other-regarding or ‘external’. This is not what we called altruism. Similarly, the philosophical notions of compassion and pity also involve the benevolent agent’s selfinterest. Martha Nussbaum, who defends compassion as the foundation of ethics, defines it as “a painful emotion occasioned by the awareness of another person’s underserved misfortune” (Nussbaum, 2003: 301). Less instinctive and more positively orientated, sympathy plays a comparable role with compassion by connecting all individuals’ interest altogether (Fontaine, 1997, Sugden, 2002, Singer and Fehr, 2005). But, in addition to not being moral in the Kantian sense of the term, those ‘altruistic’ behaviors do not qualify with the second moral proviso described above: they break the principle of equality, firstly by integrating external preferences (Dworkin, 1978), and secondly by being condescending (Anderson, 1999). So far paternalism understandably has failed to prove that it is moral. Recent works in behavioral economics offer, however, new perspectives on the topic. 2. Behavioral Paternalism In this section I present a new approach to paternalism that is referred to sometimes as ‘New Paternalism’ (Rizzo, 2009, Mead, 1997, Economist, 2006, Holt, 2006), ‘Asymmetric Paternalism’ (Camerer et al., 2003, Loewenstein et al., 2007), ‘Light’ (Loewenstein and Haisley, 2008) or ‘Libertarian Paternalism’ (Sunstein and Thaler, 2003, Thaler and Sunstein, 2003, Thaler and Sunstein, 2008). Despite this variety of designations I nevertheless prefer to call it ‘Behavioral Paternalism’ (hereafter BP). My justification for this is that, apart from ‘New Paternalism’ (but new is not a definitive characteristic), all these expressions prejudge the legitimacy of this new type of paternalism. Since my aim is precisely to discuss the terms of its legitimacy, I therefore believe that a neutral but informative qualifying adjective is more appropriate. The term ‘behavioral’ imposes itself since the revival of paternalism observed for the last decade originates from behavioral sciences. The American lawyer Cass Sunstein and economist Richard Thaler are the first and most important champions of BP (Jolls et al., 1998, Sunstein and Thaler, 2003, Thaler and Sunstein, 2003, Thaler and Sunstein, 2008, Jolls and Sunstein, 2006). Their groundbreaking works on libertarian paternalism have produced a vast academic literature and found a favorable echo with politicians. Their work, directly inspired by Richard Thaler’s own contributions to behavioral economics, has the merit of raising anew the question of the possibility and the legitimacy of paternalism in the 21st century. The paternalism they defend radically differs from the traditional philosophical approaches inherited from Mill’s ‘soft anti-paternalism’ (Feinberg, 1986: 15). They contest, in particular, the idea that paternalism is necessarily coercive and that it is predominantly institutionally-based. Behavioral studies gave partisans of paternalism two major arguments. Firstly empirical studies have repeatedly shown that individual actions do not meet the rationality standard that the economic theory would expect. The idea of bounded rationality, introduced by Herbert Simon (Simon, 1957), has been decisive in explaining what was otherwise considered as economically inconsistent (Elster, 1985, Simon, 1982, Rubinstein, 1998, Kahneman, 2003). Ted O’Donoghue and Matthew Rabin hence show that their model of sin taxes acknowledging individuals’ bounded rationality has huge consequences in terms of economic policy: “Economic policy prescriptions might change once we recognize that humans are humanly rational rather than superhumanly rational, and in particular it may be fruitful for economists to study the possible advantages of paternalistic policies that help people make better choices.[…] In other words, economists ought to treat the analysis of optimal paternalism as a mechanism-design problem when some agents might be boundedly rational.” (O'Donoghue and Rabin, 2003). For some years now, economic models of bounded rationality have been supplemented by new evidence provided by neuroscientists, giving birth to a new discipline called neuroeconomics (Camerer et al., 2004, Camerer et al., 2005, Camerer, 2007, Kahneman, 2011). According to Colin Camerer neurosciences definitely undermine the ‘Revealed-Preference Approach’ by showing the role played by the difference between experienced utility (‘liking’) and decision-utility (‘wanting’) in individual suboptimal choices. Benevolent agents (or governments), who are aware of the gap between the utility individuals think they will obtain (what they want) and the utility (or disutility) they will actually get (what they like), are then given the opportunity to act paternalistically without risks (Camerer, 2006, Camerer, 2008). In his terms “paternalism could be justified, in terms of a person’s own welfare, if the wanting system does not produce what the liking system likes and if the intervention creates more liking than the person would achieve on his own or with market-supplied help” (Camerer, 2006: 101-02). A second argument for paternalism is individuals’ endogenous preferences. Preferences are claimed by behaviorists to be endogenous to social contexts and consequently inconsistent from one situation to another, the lack of any past or similar reference introducing an element of arbitrariness in the evaluation 5. Over the last twenty years, behavioral economics has offered a great deal of evidence to support this thesis (Lichtenstein and Slovic, 2006). Framing, anchor or endowment effects have been identified as some of the key mechanisms at stake (Thaler, 1980, Loewenstein and Adler, 1995, Tversky and Kahneman, 1986, Tversky and Kahneman, 1981, Kahneman et al., 1991). But if endogenous preferences are responsible for individuals’ poor rational behavior, they can also be the medium for their own remedy; the remedy is in the disease. For Sunstein and Thaler, for instance, it is possible to significantly reduce the lack of individual rationality by switching the default rule settings from an ‘opt in’ to an ‘opt out’ formula. They illustrate the benefits of setting change in default rules with two case studies: the case of 401 (k) employee savings plans (Madrian and Shea, 2001, Choi et al., 2002) and their own experience of the University of Chicago’s car park payment system. In the first case, employers decide that instead of letting their employees join a savings plan, the American 401 (k) plan, they would automatically enroll them unless employees specifically stated that they did not wish to be included. When eligible, employees usually receive a 401 (k) plan form that they must complete in order to join. In this case, however, employees only receive a statement in 5 The idea of ‘coherent arbitrariness’ of preferences developed by Dan Ariely, George Loewenstein and Drazen Prelec shows, however, that valuations are not entirely arbitrary: absolute valuation of goods or experience is for a large part arbitrary, but relative valuations can prove to be coherent ARIELY, D., LOEWENSTEIN, G. and PRELEC, D. (2003), '"Coherent Arbitrariness": Stable Demand Curves without Stable Preferences', The Quarterly Journal of Economics, 118, 73-105. which they are told that, unless they opt-out, they are automatically enrolled in the plan. In both studies, a significant increase in the enrollment rate was observed. In the second case, a change in the tax law made it possible for employees to pay for employer-provided parking on a pre-tax basis. The University of Chicago presumed that, although being in the employees’ interest, many of them would not take the trouble to fill in and send back the form and decided to enroll all employees automatically. Those who preferred to pay with after-tax dollars were, however, free to opt out 6. Had the university chosen a different default rule (like an ‘opt in’ strategy), the authors reckon that “many employees, especially faculty members (and probably including the present authors), would still have that form buried somewhere in their offices and would be paying substantially more for parking on an after-tax basis” (Sunstein and Thaler, 2003: 1171). A minor effort, such as filling in a form, is often sufficient not to claim a benefit people are entitled to. To what extent is BP morally legitimate? In the first section I have suggested that – in order to be moral – paternalism ought to fulfill three criteria: respecting personal autonomy, respecting individual equality and being morally motivated. Let us consider these three criteria in connection with behavioral paternalism. The first condition is by far the one that has been given the most attention. Defendants of BP trust that its main asset is not to be coercive. This is the reason why they described it as ‘libertarian’, ‘soft’, ‘light’ or ‘asymmetric’. A number of scholars have, however, disputed the idea that ‘libertarian paternalism is not an oxymoron’ (Mitchell, 2005, Hill, 2007). They accept the behavioral point that individual preferences are ‘constructed’ (Kahneman and Tversky, 2000, Lichtenstein and Slovic, 2006) and therefore highly sensitive to choice environment but they contest Sunstein and Thaler’s conclusion that it makes paternalism inevitable. Constructed preferences, Claire Hill argues, mean that individuals do not always choose as they really want but it does not follow from that that one can sway them into choosing what one thinks they would have wanted if their choice had not been biased. Yet Sunstein and Thaler set default rules as if individuals cannot but want to be 6 In practice, however, default rules are sticky and guaranteeing the conditions of free choice is difficult. Once a person has been enrolled in a default rule, he or she tends to overestimate its benefits (endowment effect). If opting in is a deterrent for many people, opting out from a default rule is even more dissuasive. To respect freedom of choice, a libertarian planner must set up a default rule that will be easy and costless for individuals to opt out of. Ideally, it should not be more demanding than a ‘one-click’ procedure (Sunstein & Thaler 2008: 249). prudent. Other means are available to ‘real’ libertarian paternalists such as debiasing cognitively or emotional wronged choices (Blumenthal, 2007, Mitchell, 2005, Jolls and Sunstein, 2006). Besides, ‘committed’ libertarian paternalism, adds Gregory Mitchell, would always prefer to enhance the decision maker’s freedom of choice rather than improve their welfare (Mitchell, 2005: 1258). Despite these criticisms, it would – I believe – be unfair not to acknowledge the progress realized by the partisans of BP in their attempts to minimize all forms of coercive interferences. Despite its imperfections BP certainly has better chances (compared with other types of paternalism) to satisfy the autonomy proviso. But its main moral asset is not there. What BP does really change for paternalism is its relation to equality. In the previous section I showed how the equality proviso was challenging for the defense of paternalism. I believe, however, that behavioral paternalism partly eludes the criticisms mentioned earlier. Paternalism, as previously argued, is usually motivated by a willingness to correct an (unfair) inequality between people. It thus implicitly establishes a distinction between the ‘lucky’ and ‘unlucky’ ones. Amongst the ‘unlucky’ ones, paternalism particularly favors those who have no personal responsibility in their misfortune (‘brute bad luck’): the ‘disabled’, the ‘ugly’, the ‘stupid’, and the ‘socially awkward’ ones (Anderson, 1999). Unsolicited, paternalist actions have disastrous effects on the ill-endowed people they are supposed to help. By granting people a (financial) compensation for their condition, they actually treat them as incomplete human beings. In the case of BP, however, paternalist agents cannot claim any superiority of body or mind. Nothing distinguishes them from the ‘paternalized’ ones except the position they occupy at the decision-making moment. Consider the example of the director of the cafeteria that Sunstein and Thaler give to illustrate the ‘inevitability’ of paternalism. The director is aware that the way she arranges the line of dishes will ‘frame’ the customers’ choice. According to the authors, she faces four alternatives 7 (Sunstein and Thaler, 2003: 1164): 7 Robert Sugden pointed out that one option is surprisingly missing from the list: the cafeteria director might simply choose to display the dishes in the most economically efficient way SUGDEN, R. (2008), 'Why incoherent preferences do not justify paternalism', Constitutional Political Economy, 19, 226-48. The authors’ reasons for not including it are twofold. Firstly they argue that planners are not necessarily looking for profit maximization. Even directors of private companies, like school cafeterias, are not constantly subject to market 1. She could make choices that she thinks would be best for the customers, all things considered. 2. She could make choices at random. 3. She could choose those items that she thinks would make the customers as obese as possible. 4. She could give customers what she thinks they would choose on their own. Suppose for the moment that she chooses the first option (I shall discuss further her motivation to do so in the next section). She is well-aware that customers (much like herself) know what is healthy for them and what is not. But she is also aware (as her customers are as well) that the colors, the shapes, the odors and the disposition of goods arranged in front of them can influence their choice towards the unhealthiest dishes. Being director of the cafeteria and being in charge of the disposition of the line of dishes, she therefore has the opportunity to rearrange the dishes in order to reduce this behavioral bias. In that case and, contrary to the traditional forms of paternalism, I contend that her choice is not demeaning for her customers and therefore does not violate the equality proviso. The same reasoning applies to those in charge of setting default rules: they are well aware – probably from their own experience – that opt-in rules induce procrastination. By changing the default rules, they are not claiming to help the ‘unlucky’ ones. If anything they implicitly establish all individuals’ equality in front of behavioral bias. What really distinguishes them from the others is that, for that particular bias, they have the opportunity to act and they do so as they would expect others to do. As can be seen in the above examples BP does not require a cognitive or moral superiority from the paternalist agents. BP is what could be referred to as an ‘opportunistic paternalism’. Sunstein and Thaler’s so-called ‘planners’ do indeed have a decision-making advantage over others, but one that is merely given by their relative position. pressures. Sunstein and Thaler do not distinguish profit driven from non-profit driven planners. Secondly, they claim that “market success will come not from tracking people’s ex ante preferences, but from providing goods and services that turn out, in practice, to promote their welfare, all things considered. Consumers might be surprised by what they end up liking; indeed, their preferences might change as a result of consumption.” SUNSTEIN, C.R. and THALER, R.H. (2003), 'Libertarian Paternalism Is Not an Oxymoron', The University of Chicago Law Review, 70, 1159-202. Although, technically speaking, one could argue that denying the existence of ex ante preferences does not logically imply that individual preferences are not being taken into account for profit making, it seems reasonable from the authors point of view to exclude the profit option from the manager’s choice. In the next section I present an amended version of the cafeteria example in which profitmaking cannot be a motivation. 3. Morality of BP In the previous section I have demonstrated 1) that although it does not perfectly conform to the autonomy proviso, BP does considerably better than any other form of paternalism (enough to be socially tolerable) and 2) that it is the only kind of paternalism that actually conforms to the equality proviso. The last point to be considered is the morality of its intention. In the first section I showed that paternalism is often dismissed as being falsely altruistic. Partisans of BP argue, however, that this is not the case and that paternalist agents are genuinely morally motivated. What reason can they possibly have to act yet? We have already discarded all self-interested reasons including compassion and sympathy. Paternalist agents cannot enjoy being altruistic either. Pride and honor are thus also to be excluded from the potential motivations for paternalism. Besides, planners act anonymously and may not even be aware of the resulting good of their actions. It is unsurprising that so many people doubt the true moral nature of paternalism. Behavioral studies suggest, however, that people can behave out of interest and that their likeliness to do so largely depends on circumstances. In other words behavioral biases not only justify but also explain paternalistic actions. Consider the cafeteria example quoted above. Suppose now that the director of a cafeteria has to order fifteen dishes equally distributed between three classes of profitability level. She has to order all dishes, including the equally profitable ones. Since her interest as manager of the cafeteria is already satisfied, she is otherwise indifferent to the way in which dishes are arranged within each profitability category. She could, for instance, adopt a random criterion of distribution. But moral options are also available to her: she could, as suggested by Sunstein and Thaler (Sunstein and Thaler, 2003, Thaler and Sunstein, 2008), promote healthy over fattening dishes. In which case she would certainly act altruistically. Altruism – and consequently paternalism – is therefore theoretically possible. But how likely is it for the director of the cafeteria to choose the altruistic option? I believe that Sunstein and Thaler are wrong to consider that paternalism is her only real choice (Sunstein and Thaler, 2003: 1164). Malevolence is fortunately uncommon but it nonetheless exists (Kolm, 1995). Random choice set apart 8 there are moreover many other possible criteria to arrange dishes: one can order them by size, by color, by shape, by composition, by season, by name, by origin etc. Altruism is then just one of many options available to the director of the cafeteria. Why would she prefer this particular option to all the others? The notion of morality I have adopted so far rests upon the principle of disinterestedness. Selfinterested, sympathetic and compassionate reasons cannot be taken into account to explain altruism. This seems to exclude all possible utilitarian justifications. From a Kantian point of view, morality is an aim in itself and it therefore does not need further justifications (ref). Individuals are being moral when they comply with universal reason rather than their personal interest. Moral actions, for Kant, are exclusively produced by ‘good willed’ or ‘good natured’ individuals whose behavior is dictated by the moral law. It is therefore possible to assume that the director of the cafeteria is of ‘good will’ and that this is the reason why she chooses to promote healthy dishes over any other possible arrangement. This would make paternalism morally acceptable (according to the third proviso above). The problem is, however, that having a reason or a duty to act in a particular way is not necessarily motivating enough to actually act as one ought or as one intended to do. Behavioral economists have repeatedly shown that self-interested individuals often prove unable to act rationally. In a similar way morally motivated individuals can also be incapable of acting correspondingly. Behavioral biases divert decision-makers away from their ‘ideal’ choice in morals as well as in prudence. Numerous experimental studies support this statement, a number of which have been presented by John Doris in a compelling book on individuals’ (absence of) character (Doris, 2002). Amongst the vast array of experiments quoted by Doris, let me mention two cases to illustrate the importance of framing effects in moral choice. The first one, undertaken in 1972 by the American psychologists Alice Isen and Paula Levin, took place in a shopping mall near a phone box (Isen and Levin, 1972). Passersby and customers using the 8 Can a choice be absolutely random? Statisticians and neuroscientists have observed that the human brain is illdisposed toward randomness and that individuals frequently prefer adopting any given criterion of choice rather than (unsuccessfully) attempting to simulate a random statistical distribution. MLODINOW, L. (2008), The Drunkard's Walk: How Randomness Rules Our Lives. Knopf Doubleday Publishing Group. phone box were the unwitting participants of the experiment. At the end of each call, a young woman ‘accidentally’ dropped a folder, thus spreading all her papers across the floor. The aim of the experiment was to study whether individuals are more likely to behave altruistically when they are in a good mood. Phone callers are divided in two groups, a control group for which nothing is done and a test group composed of good-humored subjects. In order to put the subjects in a good mood the experimenters place a ‘forgotten’ dime in the phone receiver for the callers to find. The results of the study were striking: 14 out of 16 callers who found the dime came to the aid of the ‘clumsy’ young woman, whilst only one out the 25 who did not find the dime did! The second study belongs to a series of experiments led by the social psychologist Robert A. Baron (Baron and Thomley, 1994, Baron and Bronfen, 1994, Baron, 1997) highlighting the effect of aromas on human behavior. In the last experiment Baron shows that individuals located near to a pleasant source of aromas (such as hot croissants or coffee) were more disposed to help passersby (in need of change in his experiment) than those who were situated in a neutral aromatic environment (Baron, 1997). All these observations, as well as many others, corroborate recent neurobiological studies that show the impact of (positive) emotions on altruism (Damasio, 2004). The point I am trying to make here is that although paternalism is not inevitable it is nonetheless possible. This is an important point as it not only demonstrates that paternalism can be genuinely morally motivated (3rd criticism) but it also reinforces BP’s position in terms of respect of personal autonomy (1st criticism) and individual equality (2nd criticism). For respect of equality entails – as Elizabeth Anderson argued it –equality of status between individuals. I have already pointed out that because it is essentially an opportunistic paternalism, BP does not violate this basic principle. Paternalist agents are not more rational or more insightful than the people they propose to help. But what if they were morally ‘superior’? What if they owed their status to their moral rather than to their cognitive excellence? This would, I contend, have dramatic consequences. Paternalism has been widely (and partly correctly) criticized for letting the self-proclaimed ‘uppermost intelligent’ or ‘supremely rational’ individuals interfere with those they considered ‘too stupid to run their lives’. If paternalism were to be the prerogative of the ‘morally superior’, then they would undoubtedly interfere with the lives of those they deem as ‘too corrupt to live a morally worthy life’. During the nineteenth century, it was not uncommon for devout men and women to set up institutions for young persons (usually girls) with ‘loose morals’ to turn them away from their ‘vices’, or to establish – as in Benjamin Britten’s brilliant satire – a May Queen contest to encourage virtue and virginity. What then differentiates moral paternalism, as Gerald Dworkin calls it, from normal or legal paternalism “is the idea that a person’s welfare can directly involve, and therefore be increased by, changes in their moral character and actions – changes which do not necessarily result in their being happier or healthier, etc.” (Dworkin, 2005: 308). These changes are coercive (and thus illegitimate) if they are not later endorsed by the people concerned (Feinberg, 1986). From an equality point of view they are, however, always illegitimate as they specifically target (and thereby ostracize) a specific category of the population. The fact that individuals who have the opportunity to act paternalistically do not systematically decide to do so has a second advantage: it limits the practice of paternalism and consequently contributes to its social acceptability. Most of the philosophical debate on freedom focused on the legitimacy of paternalistic actions taken separately. Very little attention has been given, however, to the disagreement and the sense of violation felt by individuals who continuously have their self-regarding choices interfered with, however legitimate each of these interferences might be. Despite its limits, voluntariness might be a good criterion to assess the legitimacy of an interference (Olsaretti, 2004) but it does not take into account the moral cost born by the people who are interfered with. Imagine Maria decides to dine out with some friends to celebrate her 40th birthday. Maria is seriously overweight. She tries to lose weight but has little willpower. At the restaurant she orders a pizza and some Italian wine. They all have an enjoyable evening and then the waiter comes to take the dessert orders. Maria is about to choose a dessert, when a man at the neighboring table suddenly stands up and urges her ‘for her own sake’ not to have dessert. Pizza, he says, was already highly inappropriate for her, considering her weight; dessert would be ‘suicidal’. Technically speaking his intervention is legitimate since her eating fat is not ‘fully voluntary’. His action is, however, socially inconsiderate and morally harmful. Even if Maria has willpower issues she should have the right not to have all her alimentary choices being questioned and she should certainly not be subjected to such public humiliation. All paternalistic opportunities should not be exercised, however legitimate or well-intentioned they seem to be. If everyone were to act altruistically our life would soon become absolutely unbearable. The last point that must be taken into consideration to assess the morality of paternalism is the question of its means. Can an action use immoral means in order to achieve a moral action? The question is often raised in relation with the paternalists’ false moral pretensions (3rd criticism). I have demonstrated, however, that paternalism could be genuinely morally motivated. But it is not difficult to imagine cases where ‘good natured people’ resort to ‘wrong means’ in order to complete what they consider as being ‘a good action’. Allen Buchanan, for instance, has condemned a number of disgraceful medical practices involving withholding information or even bluntly lying to patients about their state of health to ‘avoid them any unnecessary harm’ (Buchanan, 1978). Bernard Gert and Charles Culver, studying the moral practices of medicine (a field known today as bioethics), also condemn the shams of medical paternalism (Gert and Culver, 1979, Gert et al., 2006). They contend in particular that “an essential feature of paternalistic behavior toward a person is the violation of moral rules (or doing that which will require such violations), for example, the moral rules prohibiting deception, deprivation of freedom or opportunity, or disabling” (Gert and Culver, 1976: 48). Most of the criticisms addressed to medical paternalism can nevertheless be handled through the principle of equality put forward by Elizabeth Anderson. What is, I believe, truly shocking in these practices is not the fact that doctors lie to their patients but the fact that they consider them incapable to cope with their own death. There are other cases, however, where paternalist agents are genuinely morally motivated and very respectful of the status of the people they intend to help but who believe they have no other choice than resorting to some kind of trick or deceit. The ‘planners’ who change default rules are well aware of the behavioral trick they are playing on their users. The director of the cafeteria is equally aware that the way she arranges dishes might dupe her customers. To what extent can these behavioral biases be considered as immoral means? Are they paramount to a lie or a cheat? Is playing a harmless trick insulting when it is motivated by a ‘good will’? I admit to have no definitive answer to these questions yet as they deserve to be addressed on their own. I shall – for now – conclude that although BP satisfactorily meets the three moral requirements I exposed in the first section it potentially brings up a new moral demand on paternalism. Conclusion In this article I have endeavored to show that the new type of paternalism defended by Sunstein and Thaler in particular is better prepared to respond to moral attacks than any other type of paternalism so far. Although its libertarian feature is not fully asserted, behavioral paternalism does not fall under Anderson’s equalitarian critic. Unlike its more traditional expressions it can also prove to be truly altruistic. Its disinterestedness and absence of condescendence make BP the only acceptable form of paternalism in modern society. BP is not morally irreproachable yet. To some extent it still does infringe on individual freedom. More importantly perhaps, it raises specific moral issues about the morality of its (behavioral) means. If one really wants to assess the legitimacy of new paternalism I would therefore suggest that one questions its means rather than its consequences. ANDERSON, E. (1999), 'What Is the Point of Equality?', Ethics, 109, 287-337. 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