Especially important, I think, is Glen’s argument about framing effects: Soft paternalism may currently seem like a middle-ground between a relatively more laissez-faire approach and “hard” paternalism that forecloses options rather than merely establishing defaults.  Yet, as Glen points out, once “soft paternalist” policies are implemented, the debate may shift to position some more aggressive intervention as the new reasonable middle ground.

Yet it’s this very sort of logic that has made me at least somewhat interested in the potential of libertarian paternalist arguments. My (perhaps vain) hope is that this reframing effect can be exploited in the other direction, to make reform in the direction of greater freedom more appealing, provided libertarian paternalists are primarily deployed in spheres that are already heavily regulated.  So, for instance, it seems that most Americans consider straightforward legalization of gambling or prostitution or drugs too extreme a position—though at least with regard to marijuana, the public opinion trend seems to be moving steadily in a more libertarian direction. But a proposal to combine legalization with some mechanism for permitting “problem users” to limit their own access—supposing the obvious privacy problems presented by such mechanisms could be worked out—might conceivably be presented as a reasonable compromise, recasting the status quo prohibitionist policies as the new “extreme.”  At the very least, I’d be interested to see some polling that examines how people’s responses change when a “soft paternalist” alternative is added alongside prohibition and legalization.

Just to reiterate a familiar point, to speak of a “right to health care” simpliciter presents some obvious difficulties, because “health care” consists of an array of heterogeneous goods and services that must, for the most part, be provided by others. These differ in cost, scarcity, and expected benefit to the recipient. Like other putative positive rights, a right to health care is different in an important respect from negative rights, such as the right to free speech—supposing we mean by this a right not to be coercively prevented from communicating with willing listeners. The speech right may be externally limited, insofar as it conflicts with other important interests that may be seen as trumping it in cases of conflict, as when, for instance, speech involves the disclosure of vital military secrets or the spread of malicious falsehoods that would wrongly destroy some private person’s reputation. But it is not internally limited in that, in principle, my exercise of the right does not use it up: It is not as though there’s a limited stock of social restraint, so that if I speak more, and you refrain from silencing my speech, society must squelch someone else’s to make up for it. Health care, or perhaps positive rights taken together, are not like this: When social resources are expended to satisfy one citizen’s claims, this generally reduces the stock of resources available to satisfy other similar claims.

One could argue that these are, in fact, more closely parallel than they first appear: The right to speech is bounded by other rights, which (depending on how you prefer to frame it) either trump the speech right in cases of conflict or, conversely, define the limits of the speech right. In the same way, any particular citizen’s right to health care is bounded by the equal right of other citizens to health care, perhaps along with other “primary goods” like education, food, adequate housing, and so on. Even if we want to think of it that way, practically speaking the natural way of conceptualizing the right when it comes to deciding what a particular citizen is actually entitled to is as a claim or share right against the stock of social resources, not—as with speech—as a “side constraint” right subject to certain exceptions.  The question “how much health care and of what sort” arises  as a matter of course, in the way the question “how much speech” does not. Assuming we cannot give everyone infinite health care, and that health care is one of a number of positive goods to which citizens are entitled, then any real-world attempt to cash out the right requires a determination of the share of social resources to which a claimant is entitled.

Now, to make this a bit more concrete, a thought experiment. (And just to preempt objections: I understand that this is far removed from the practical health care concerns of progressives; I’m shooting for a conceptual clarification, and not so deluded as to think the scenario I’m about to paint resembles our current situation in any important respects.) Suppose we have what I’m going to call a market egalitarian society. Suppose, in other words, that this is a society where economic life is generally market-based, but where a scheme of taxation and redistribution then ensures that all citizens have a fair share of economic resources, according to whatever conception of economic justice you think is correct. For the purposes of our example, suppose further that the correct conception seeks to neutralize to some extent the effects of bad luck, so that someone who is burdened with health problems, either congential or as a result of accident, may be entitled to a greater share of social resources by way of compensation. Also suppose that, unlike most social democracies, this market egalitarian society does not generally go in for direct government provision of goods, but instead, having ensured that everyone has their fair share of all-purpose resources—in other words, wealth and income—allows adults to secure these goods for themselves. Imagine that this is a generally affluent society, and in it there lives a Mr. Rich, who is as well off as anyone else—and perhaps, if this is compatible with your preferred conception of economic justice, economically better off than most. As he gets on in years, he is diagnosed with a serious condition that will shorten his life—though appropriate medical care can affect how much it is shortened. If necessary, according to your preferred conception and the specific facts of the case, his share of social wealth may be augmented through redistribution to compensate for this stroke of bad fortune.

Though he could expend some of his share on the appropriate medical treatments and be left with enough to maintain a perfectly decent quality of life, Mr Rich decides to use his resources in service of other projects: Perhaps he decides to travel to parts of the world he’d always wanted to see, or endow a library, or in other ways enhance the quality of his remaining years. As a result of this, suppose he reaches a point where he is no longer able to afford the medical treatments that would extend his life. Can he still claim a right against society to be provided with care? Or are his rights exhausted by his consumption of what, by stipulation, is his fair share of aggregate social resources? Can society fairly say: “We’ve given you what you had a right to already, and you opted against using it for health care”?

If we want to say that he is still entitled to care, then under the circumstances we must in effect say that he is entitled to more than his fair share of resources, which seems like something of a contradiction in terms. To avoid this contradiction, we might say that Mr Rich must not be permitted to expend his share on these other projects, but rather to devote it to his own health care.  Put it differently: If we want to say that what Mr Rich has is specifically a right to health care, we have to be prepared to say that he is not just entitled to the cash value, as it were, of his share of social wealth, but only to certain particular goods on which it might be expended. This would justify saying that the market egalitarian society is badly constructed—that we must provide the good directly, rather than providing fair shares and letting people decide whether they want that good or others.

On what grounds might we say this? We have a couple of options. In the real world, as opposed to our thought experiments, it might just be that it is easier politically to sell a system of universal health care than the sort of naked redistribution contemplated in our market egalitarian society—that in the absence of these political constraints, that society is a perfectly fine model. There might also, of course, be other more pragmatic reasons to say the society should provide care directly instead of fair shares. Perhaps a national scheme of health care provision will enable each of us to get more bang for the buck than a scheme in which each of us takes our fair share to the health care market. There are also some obvious externalities to certain kinds of health care: Ensuring that I am treated for infectious diseases in a timely way makes it less likely that I will inflict these ailments on others.But let’s see if there are other routes to take that preserve some kind of special status for health care.

We might say that certain goods—among them long life and good health—have an objective value or priority regardless of what Mr Rich might think. This is, I think, the view of many religious conservatives who oppose assisted suicide, not merely because they worry that people will come under undue pressure to prematurely end their lives, but because they see life as sitting atop an objective, divinely ordained hierarchy of value, so that it is not up to us mortals to decide that our lives are no longer worth living. While it is certainly possible for a progressive to hold this view, it sits uneasily with other widely-held progressive value commitments, so let’s put that aside for the moment.

We might alternatively say that while Mr Rich is not necessarily wrong to value other goods above health at some margin–an extra painful week or two bought at great cost might genuinely be a less valuable use of his fair share than some alternatives available to him—he is likely to misjudge his own best interests, perhaps because he underestimates how precious those extra weeks or months will be at the end. Some similar thought presumably motivates the decision to provide the indigent with goods like food stamps rather than direct cash payments: Because poverty is often bound up with problems like alcoholism or substance abuse, we want to ensure that people will use social assistance to acquire goods that are in their own long-term best interests (and, of course, those of their children—an obvious complicating factor) rather than in self-destructive ways that may only increase their need for future public assistance. Even if we think Mr Rich is perfectly capable of making the relevant trade-offs, rendering this sort of argument inapplicable to his case, we might well think it applies to younger people facing the choice of which health risks to insure against. We frequently do see arguments of just this sort, and they are plausible enough on face.

This second option is clearly, in some sense, paternalistic, though since I’m doffing my libertarian hat for the purposes of this post, this does not in itself constitute an objection. I do, however, want to try to disentangle the different strands of justification here—to see how far the motivation for a right to health care is a function of premises having to do with economic justice, and to what extent there’s a paternalistic element. If we want to say that the market egalitarian society does not go far enough when it allocates to each citizen a fair share of economic resources, then allows them to make their own health care decisions, it cannot just be that we are worried about the distributional injustices. (An alternative: We might say that prudence is arbitrarily inequitably distributed, and so some degree of paternalism is in fact a component of distributive justice. I leave this suggestion by the wayside for the moment, though it might be interesting to follow up in a future post.) Decomposed into these separate elements, though, only part of the “right to health care”—the part consisting of a claim to one’s fair share of social resources—actually looks like a right of the familiar sort, which it’s up to the individual to claim, use, or waive according to his own best judgment.

We can try to squeeze the square peg into the round hole. We can say, perhaps, that my “total” self, conceived as the aggregate of all the temporal parts of my life, has a right that consists of a claim against both society and against any particular short-sighted time-slice of the whole-life self, to be prevented from squandering my share of social resources in ways that my future self might sorely regret. Maybe some analogy to the right against self-incrimination or the right to counsel in the criminal justice context could be attempted, but this seems a bit forced. While it does not seem exceptionally weird to say that I have a duty of prudence to my future self, the language of rights seems like a poor fit. It seems more plausible to say that, on the one hand, I have a right to some fair share of social resources, and on the other, that it is simply better if, for my own good, society constrains my enjoyment of that right by ensuring that I consume it in the form of health care than by frittering it away on ephemeral pleasures.

As I suggested at the outset, the upshot of these considerations—if we find them compelling—may be that an actual progressive society should recognize a legal right to health care, rather than a right to the cash value of one’s fair share. More precisely, this would be a right to one’s fair share of health care resources, rather than resources simpliciter. But if, as I also suggested, we reject the notion that health or longevity are inherently or objectively better than other goods people might want to secure with their just shares, then this is not because there’s a higher-level moral right to health care. Rather, the better account will say that the moral right is to one’s fair share, but that some mix of paternalism (which, again, I mean to use without necessarily pejorative connotations here) and other pragmatic considerations should be delivered in the particular form of health care.

Given my own priors, I expect that this whole long post will be seen by some readers as a sneaky and disingenuous attempt to get progressives to admit that they are paternalists after all, at which point I leap out from behind a bush and scream “Gotcha!” And probably there’s nothing I can do but say: “No, really, it isn’t.” I’m genuinely curious whether this is an account progressives regard as a theoretically adequate representation of their own commitments, and perfectly open to the possibility that I’ve missed some better alternative account. I will re-don my libertarian hat this far though: If this account does ring true, then to the extent progressives see themselves as continuing the liberal tradition, I assume they’re more comfortable with the social justice strand of the argument than the paternalist strand. With the market egalitarian model at one pole and a fully government-run health system at the other, I think it would be interesting to talk about what the intermediate systems might look like for different assignments of weight to each strand. Of course, even if I’m not waiting to jump out from behind a bush, presumably others are, so I won’t take it too personally if folks are loath to take up the frame.

[T]his sort of ban seems extremely unlikely to actually help anyone who’s genuinely in need of help. A woman whose husband and/or other male relations have enough power over her to force her into a burqa against her will is only going to be forced by those same men further underground by this sort of rule. The only kind of person who would be genuinely unveiled by this kind of legal measure would be someone with enough autonomy to be in a position to choose compliance with the law over compliance with tradition.

That reminds me that here, as with most forms of paternalistic legislation, there’s that tricky question of penalties. If the premise is that women who wear the burqa are being robbed of their agency and dignity—and that even those who protest that they wish to wear it are victims false consciousness—how is the ban supposed to be enforced? By fining or detaining or otherwise harassing the very women who, on this theory, are the most oppressed? By barring them access to public places, government buildings, maybe even courts and police stations? I suppose you could direct the penalties toward their male relations, but that hardly seems like a good way to reinforce the concept of the equal agency of women.  The only way this seems to actually work—and by “work” I mean “severely hamper religious freedom without still further harmful consequences”—is if it’s like smoking bans, where you see rapid norm changes and widespread compliance with very limited need for actual sanctions. Except there’s very little historical reason to expect it to go that way. After all, one of the reasons liberal democracies often carve out a special protected space for religous practice—and try to avoid burdening it even with facially neutral laws—is that serious believers often won’t comply even in the face of sever sanctions, and it’s bad for the legitimacy and stability of the secular state to set up an irreconcilable tension between civic and religious obligations. As a little thought experiment, picture the streets of the banlieues after the uploading of the first YouTube clip showing some overzealous official roughly unveiling a woman in violation of the ban.

Many people are completely in the dark that their partner likes porn, much less has a serious relationship with it. Ignorant as to any issue, they trust their lover unconditionally. They assume their partner understands that using porn, at least beyond a magazine like Playboy, is the equivalent of having an actual affair. This ignorance, combined with the great lengths to which a porn enthusiast will go to hide erotica, can leave a partner in the dark for months or even years.

This is tossed off as though it ought to be obvious  to the ordinary reader. It strikes me as obviously insane. I can think of any number of valid concerns one might have about what sort of porn one’s partner is consuming, or the extent of it. But the proposition that one of them is any similarity between porn viewing and “having an actual affair” would not have occured to me. Is this view held by any significant number of sane people?

The Dutch cabinet has proposed a ban on the sale of all hallucinogenic “magic” mushrooms because they could induce life-threatening behaviour. A bill will now pass to the Dutch parliament, where a majority of lawmakers are expected to back a ban after a teenage French girl who had eaten mushrooms died jumping from a bridge in 2007.

That is, of course, tragic, but I’m not sure why the answer is a ban, as opposed to more stringent enforcement of age restrictions; nor is it clear to me that this sort of awful occurrence is more likely with mushrooms than, say, alcohol.

On the other hand, I can testify that mushrooms may prompt stupid, risky behavior. I took a trip there (uh, a vacation, that is) some years back and figured I may as well give them a shot where they were legal. I then got the bright idea to go play some blackjack at the Holland Casino. Fortunately, I had the presence of mind to cash in my chips when the pips on the cards began floating about.  I left $50 up, but would not, in general, recommend them as a performance enhancer for gambling. Or, really, almost anything else.

That said, I think Will makes the best case I’ve yet seen against the idea—at least to the extent that the authors are calling for an enforcable public policy, rather than simply recommending a practice for private firms. He writes:

Sunstein and Thaler may wish to design the presentation of choices to bias decisions in favor of, say, happiness. But other choice architects may be more interested in biasing our choices toward virtue or toward participation in great collective projects. Obviously everyone is a “choice architect” to some degree in his or her daily intercourse with others. And some people, like marketers and salespeople, try to shape choices for a living. The thing is, we often rightly resent their attempts to manipulate us, but at least we are more or less in control of our exposure to such people. But when choice architecture is implemented politically, we cannot opt out of these attempts at manipulation, attempts which may or may not be benign. That’s a big problem because political choice architecture may do a great deal to shape us, even if, in its “libertarian paternalist” incarnation, it makes a show of leaving the ultimate choice open to individuals.

For example, I would object if President John McCain implemented a policy of opt-out national service because such a policy would communicate all-too-clearly that individuals need some kind of special justification or rationale not to serve the state. The default rule itself contains meaningful content. If allowed to stand, such a policy could shape norms and individual preferences in a direction antagonistic to the value of autonomy. Soon enough we might find ourselves asking, “Why should you be able to opt out at all?” The paternalistic nudge may “leave the choice open” but accepting the legitimacy of the certain nudges may imperil liberty.

And, of course, there are varying degrees of “nudges,” as Manzi points out. You can make the “opt-out” procedures so burdensome or costly that it’s functionally indistinguishable from a ban. (From a certain perspective, after all, fines and prison terms are just very high opt-out costs.) The only thing that restrains me from joining in a full-throated rejection of the notion is that given our growing tolerance of all sorts of paternalism, I worry that in many cases the alternative is just full-blown old-fashioned paternalism. In other words, I’m pretty sure there’s a slippery slope here, but I’m not sure which direction it tilts in.

I would very much rather see the national conversation shift in such a way that the self-appointed guardians of public health and welfare feel themselves compelled to talk about ways to encourage people to make “better” choices while respecting their autonomy, instead of plowing ahead on the assumption that once we know the “right’ decision, we should mandate it. I would obviously be dismayed if the upshot of this was to concede that it’s valid to “shape” people’s decisions, with the only remaining debate concerning the strength of the “nudge”. There’s always the possibility that, precisely to the extent that people exercise their autonomy by opting out, our soi-disant guardians will infer that we need yet more vigorous “shaping”. At this point, the new paternalism bleeds into the old sort because the appropriate “nudge” is one just strong enough to yield only trivial noncompliance with the guardians’ notion of what’s best. The key, for this to be made attractive to actual libertarians, would be to precommit to the idea of low, fixed opt-out costs, rather than allowing the optimal cost to be a function of the level of compliance produced.

All this reminiscing dredged up an interesting memory from my debate geek days. You see, in the Parli format, the teams debate a totally new topic each round, chosen by whichever team is randomly assigned to the “government” role, and disclosed to the opposition only once the round has begun. This is one of the things that made the Parli style attractive to me, but naturally, it requires certain restrictions on the sorts of cases that may be run. A team may not offer a “spec knowledge” case that cannot reasonably be opposed by a well-educated student who is attentive to the news and familiar with basic history, economics, philosophy, and so on. (The classic example would be a case involving a military procurement decision between helicopters with different thrust-to-torque ratios.) And more broadly, a team may not offer a case that is considered “tight”—one where all or nearly all of the good arguments were clearly on the side of the controversy chosen by the government team.

Normally, a government team would be quite be safe from any charges of “tightness” if they were arguing against an existing public policy with relatively broad approval. But there was one exception: While certainly a team could argue that all drugs should be legalized, it was considered “APDA tight” to propose that marijuana be legalized or decriminalized. “APDA tight” here was a sort of sui generis category that I don’t think I ever heard applied to any other issue. It meant that while, of course, in the broader world, and certainly among elected officials, this would be considered a controversial proposal, there was a consensus among the debaters that no really good case could be made against it.

It would be easy to smirk and put this down to their being college students, of course. But I do think it’s telling that when you gathered together a bunch of well-informed, terrifyingly smart folks, free of political pressures, who had made arguing a way of life, and who happily took up controversies of every sort, they agreed that this was really beyond the scope of reasonable dispute.