It is probably unnecessary to rehearse the ways in which Cass Sunstein, President Obama’s former regulatory czar and the author of “Nudge,” has managed to make himself a controversial figure among libertarians, nor is there any evidence that he necessarily wants to downplay that controversy. However, if Sunstein does care to refute the notion (propagated by commentators like Glenn Beck) that he wants to pull strings of peoples’ lives like a puppet master, then his most recent book review in the New York Review of Books certainly doesn’t show it.

In fact, the book Sunstein is reviewing — and his take on its core philosophical proposition — suggest that he almost enjoys the accusation that he is a would-be puppet master.

Ironically, Sunstein’s own instincts for paternalism, however great they are, initially come off as easy to miss in the review. Why? Because the book Sunstein is reviewing practically makes him look like a libertarian. Titled “Against Autonomy: Justifying Coercive Paternalism,” the book takes aim squarely at the idea that individual freedom is important, or even relevant to policy discussions at all, in the deepest philosophical terms. Sunstein describes the book’s project this way [Emphasis added]:

Many Americans abhor paternalism. They think that people should be able to go their own way, even if they end up in a ditch. When they run risks, even foolish ones, it isn’t anybody’s business that they do. In this respect, a significant strand in American culture appears to endorse the central argument of John Stuart Mill’s On Liberty. In his great essay, Mill insisted that as a general rule, government cannot legitimately coerce people if its only goal is to protect people from themselves. Mill contended 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. His own good, either physical or mental, is not a sufficient warrant. 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.

A lot of Americans agree.[...]

Until now, we have lacked a serious philosophical discussion of whether and how recent behavioral findings undermine Mill’s harm principle and thus open the way toward paternalism. Sarah Conly’s illuminating book Against Autonomy provides such a discussion. Her starting point is that in light of the recent findings, we should be able to agree that Mill was quite wrong about the competence of human beings as choosers. “We are too fat, we are too much in debt, and we save too little for the future.” With that claim in mind, Conly insists that coercion should not be ruled out of bounds. She wants to go far beyond nudges. In her view, the appropriate government response to human errors depends not on high-level abstractions about the value of choice, but on pragmatic judgments about the costs and benefits of paternalistic interventions. Even when there is only harm to self, she thinks that government may and indeed must act paternalistically so long as the benefits justify the costs.

Not that Conly’s book is simply an apologia for government control for its own sake. To hear Sunstein tell it, Conly is only interested in a very specific brand of paternalism – a “paternalism of means,” as he puts it.

For instance, Conly would argue for a government that stops people who want to head from Washington to Boston from inadvertently going to Charleston, since it’s in the opposite direction. The actual question of whether one should want to get to Boston or Charleston would theoretically be considered irrelevant. However, there is a problem: to hear Sunstein tell it, Conly frequently endorses policies that do follow a paternalism of ends, for instance by endorsing smoking bans. Ironically enough, this is something even Sunstein opposes:

Conly is quite aware of the many difficulties that would be associated with efforts to prohibit the manufacture and sale of alcohol and cigarettes, but here the problems seem to me more significant than she allows. True, smoking produces extremely serious public health problems—over 400,000 deaths annually—and it is important to take further steps to reduce those problems.¹⁶ But any ban would raise exceedingly serious difficulties, not least because it would be hard to enforce. A full analysis would have to consider such difficulties, as well as the claims of free choice. Black markets in cigarettes are not exactly what the United States most needs now.

More to the point, in one of the most ironic passages of the review, Sunstein actually admits, “Freedom of choice is an important safeguard against the potential mistakes of even the most well-motivated officials.” Unfortunately, there is no acknowledgement that this category includes even him, but it still is one of the more libertarian admissions in the review. And indeed, Sunstein seems broadly uncomfortable with Conly’s practical ideas (bans on smoking, bans on particular types of food). On the one hand, this is comforting. On the other, given Sunstein’s preferred method for applying paternalism (IE in such a way that people barely notice its presence), he arguably takes issue with Conly’s approach because it is too honest, not because it is too paternalistic.

When it comes to Conly’s philosophy, however, Sunstein’s words are substantially warmer, and in a way that may raise concerns among his critics. However, before explaining why, it is necessary to assess what Conly is actually trying to do, and that means understanding the person she’s trying to refute: the British philosopher John Stuart Mill.

John Stuart Mill

John Stuart Mill (Photo Credit: Thefamouspeople.com)

For political philosophers in general, and conservatives in particular, John Stuart Mill is a problematic and at times confusing figure. A radical libertarian individualist who later became a radical socialist, seemingly without so much as a trace of intellectual reconfiguring, Mill has been the intellectual Godfather of social libertarianism pretty much since he published his essay “On Liberty” in 1859. The book itself is notable for its absolute, ironclad insistence on freedom not just from government interference, but from social interference.

In fact, Mill spends more of the book arguing that social norms are a threat to individual autonomy than he does arguing that government intervention is, while defending eccentricity to the hilt and pushing for freedom to indulge in lifestyle experimentation. Understandably, this approach has made both conservatives and liberals (and even some libertarians) nervous, as in this quote from libertarian Ralph Raico:

But worst of all was Mill’s deformation of the concept of liberty itself.  Liberty, it seems, is a condition that is threatened, not only by physical aggression on the part of the state or other institutions or individuals.  Rather, society often poses even graver dangers to individual freedom.  This it achieves through what he called the ”tyranny of the prevailing opinion and feeling”.  He says the tendency to impose by other ways than civil penalties its own ideas and practices as rules of conduct on those who dissent from them.  What society does is compel all characters to fashion themselves upon a model of its own.  True liberty requires what Mill called “autonomy”, because if you adopt the traditions and customs of other people, you’re simply engaging in ape-like imitation.  Where we would say that men and women choosing goals laid out for them by institutions whose authority over them they freely accept, Mill perceives the extinction of freedom.  In a striking and utterly preposterous illustration, the “saint of rationalism” says, “An individual Jesuit is, to the utmost degree of abasement, a slave of his order.”  One wonders what is supposed to follow from this.  Must we form abolitionist societies to emancipate the willing slaves of the Society of Jesus?  How should we go about selecting our John Browns to lead the storming of the slave pits of Fordham University and Georgetown? You have to ask yourself by what right Mill and his alter ego, his girlfriend Harriet Taylor, could ever have imagined themselves entitled to pass judgment on the status of members of Catholic and Eastern Orthodox religious orders, on Orthodox Jews and devout Muslims, or any other religious believers.

Perhaps the most enduring part of Mill’s “On Liberty,” however, is the part Sunstein cites – the so-called “Harm Principle,” which states in effect that government should only intervene to stop people from doing something if it will directly hurt someone else. Intervention “for their own good” is strictly off limits. It is this part that Conly, and to an extent Sunstein, seem to want to chip away at. Here’s the Harm Principle restated, from Sunstein’s essay:

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. His own good, either physical or mental, is not a sufficient warrant. 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.

Arguing Against the Harm Principle

Sunstein is not the first commentator to take issue with this doctrine. Social conservatives especially have attacked it for being insufficient, and for not taking into account all forms of harm possible, including harm to the community. Yet unlike these broad philosophical arguments. Sunstein’s criticism is arguably more troubling, because he not only argues that such a degree of freedom is undesirable, but that people are actively incapable of managing this degree of freedom:

Mill’s claim has a great deal of intuitive appeal. But is it right? That is largely an empirical question, and it cannot be adequately answered by introspection and intuition. In recent decades, some of the most important research in social science, coming from psychologists and behavioral economists, has been trying to answer it. That research is having a significant influence on public officials throughout the world. Many believe that behavioral findings are cutting away at some of the foundations of Mill’s harm principle, because they show that people make a lot of mistakes, and that those mistakes can prove extremely damaging.[...]

People also have a lot of trouble dealing with probability. In some of the most influential work in the last half-century of social science, Daniel Kahneman and Amos Tversky showed that in assessing probabilities, human beings tend to use mental shortcuts, or “heuristics,” that generally work well, but that can also get us into trouble. An example is the “availability heuristic.” When people use it, their judgments about probability—of a terrorist attack, an environmental disaster, a hurricane, a crime—are affected by whether a recent event comes readily to mind. If an event is cognitively “available”—for example, if people have recently suffered damage from a hurricane—they might well overestimate the risk. If they can recall few or no examples of harm, they might well underestimate the risk.

The problem should be obvious, of course. Sunstein wants government to take on the role of disinterested paternal figure toward inefficient, unwise, biased human beings. Yet those same inefficient, unwise human beings are precisely the people who will be running the government in the first place. Of course, Sunstein does not ignore this problem. In fact, he points it out as an argument against Conly’s harder edged form of paternalism:

Conly favors a paternalism of means, but the line between means and ends can be fuzzy, and there is a risk that well-motivated efforts to promote people’s ends will end up mischaracterizing them. Sure, some of our decisions fail to promote our ends; if we neglect to rebalance our retirement accounts, we may end up with less money than we want. But some people who often rebalance their accounts end up doing poorly. In some cases, moreover, means-focused paternalists may be badly mistaken about people’s goals. Those who delay dieting may not be failing to promote their ends; they might simply care more about good meals than about losing weight.

Nevertheless, he concludes that while paternalistically micromanaging peoples’ lives might be impractical, it is something that is philosophically attractive, and that practical means of regulating other people are therefore philosophically desirable (emphasis added):

Notwithstanding these objections, Conly convincingly argues that behavioral findings raise significant questions about Mill’s harm principle. When people are imposing serious risks on themselves, it is not enough to celebrate freedom of choice and ignore the consequences. What is needed is a better understanding of the causes and magnitude of those risks, and a careful assessment of what kind of response would do more good than harm.

Who is to say what constitutes a “serious risk?” How are we to know a response would do good rather than harm? Who defines “good” and “harm?” Sunstein doesn’t say. To be fair, Mill barely defines how his harm principle is supposed to be applied either, but the great thing about liberty is that it works itself out, whereas trying to apply paternalistic laws to other people practically demands definition. As a result, the absence of an explanation for his brand of paternalism on Sunstein’s part is arguably more worrisome than the bald-faced attempt to defend it that the book he is reviewing offers.