This introductory chapter discusses some of the key aspects of the present-day discussion of paternalism. Interest in paternalism has been heightened recently by the publication of Richard Thaler and Cass Sunstein's Nudge. They tout an approach to policy-making that is at once paternalistic but will not offend its traditional (libertarian) critics. At the heart of Thaler and Sunstein's defense of libertarian paternalism is a body of psychological research showing that people's choices are influenced by small and apparently insignificant aspects of the choice environment, or what they call the choice architecture. There is a well-known objection to utilitarianism: insofar as it aims to maximize good in the aggregate, individuals can be sacrificed for the greater good. Paternalistic nudges risk harming a portion of the population. Thaler and Sunstein would presumably object to stacking nudges because collectively they might constitute a shove.

This chapter begins by canvassing a wide variety of definitions of paternalism which may have been developed in quite different contexts for quite different purposes. It is helpful both to see how wide the variety is and to see the various dimensions along which the definitions vary. A paternalistic act may be defined in terms of the outcomes it produces. The alternative view is that the reasons which count in determining whether an act is paternalistic are the hypothetical reasons which could motivate or justify the act. The first thing to note is that the entire discussion of paternalism takes place in the larger context of a discussion of the Unconscionability Doctrine (UD) in contract law. There is a normative dispute about the use of the doctrine. Liberals tend to favor it as a way of enabling poor people who are taken advantage of to get out of contractual obligations.

This chapter discusses the special problems that pertain to penal paternalism. The author's theory of criminalization consists in six constraints that must be satisfied before a penal law, any penal law, may be enacted and enforced. First, all criminal laws must be designed to prevent harm. Second, the conduct proscribed by the criminal law must be wrongful. Third, persons must deserve punishment for violating the criminal law. Fourth, the state must have a substantial interest in proscribing the conduct banned by a criminal law. Fifth, the law must actually promote that state interest. Sixth, the law must be no more extensive than necessary to accomplish its purpose. The chapter describes several problems in efforts to show that a given instance of penal paternalism satisfies them. The problem facing paternalists is to decide whether the wrongs involved in failures to take care of oneself are public or private.

Mill's aim in using the metaphor of sovereignty was presumably to suggest that the government ought to respect the autonomy of each individual unless he poses a threat to others, just as a nation ought to respect the sovereignty of another nation unless it poses a threat to another nation. The choice to use illicit drugs involves important forms of discretionary control over one's own mind and body. Non-legalization might still violate the opportunity principle because the choice to use drugs involves important forms of control over mind and body, and this policy reduces the opportunities to make this choice. It is possible to respect self-sovereignty and to give a plausible theory of its boundaries without endorsing a general principle of anti-paternalism like Mill's harm principle. So, the importance of self-sovereignty provides no reason to think that paternalism is always wrong.

This chapter critically examines some different views about the content, strength, and justification of a right to autonomy. It explains some background assumptions about the right to autonomy, the concept of paternalism, and the soft/hard distinction. There are two basic approaches to spelling out the content of the right: choice-based and preference-based. Joel Feinberg's view that the right protects only self-regarding choices that are voluntary enough is one example of the former. The claim that the right is absolute vis-à-vis moralistic reasons mean that when moralistic interference infringes the right to autonomy, it is always wrong. If the right to autonomy is cashed out in terms of a hybrid current preferences account (CP) test, then an example of soft moralism might be one orthodox Jew's forcing a second to wait to eat till his craving for a delicious but non-kosher food passes.

This chapter characterizes the moral environmentalism and presents a presumptive case for it. The autonomy objection to moral environmentalism is then outlined. Moral environmentalism is also an instance of legal paternalism. The moral environmentalist proposes to use the law, including its coercive apparatus, to create or preserve an emotional and cultural climate that favors some forms of life over others. Moral environmentalism aims to bring about a moral environment that will best enable the members of a society, in general, to lead morally valuable lives. The author concerns with one influential objection to moral environmentalism. This objection appeals directly to the value of personal autonomy. The appeal to autonomy is the most influential line of resistance to moral environmentalism at the level of moral principle, but other lines of resistance may prove to be more promising than the author has realized.

Kantian paternalism (KP) allows for paternalistic interference in order to help agents achieve the rationally chosen ends that constitute their conception of the good. It offers a necessary condition on paternalistic interference because it recognizes that the moral and non-moral costs of such interference can sometimes outweigh its benefits. Central to KP is the notion that paternalism is warranted when agents exhibit a certain form of instrumental irrationality. Intuitively, there is a difference between an agent irrationally choosing inadequate means to her chosen end and an irrational agent choosing inadequate means to her chosen end. The main normative power is the power of instrumental rationality, the power to determine the most effective means to the ends that constitute the conception of the good. Characterizations of rational suicide treat an individual's interests in a realist manner, as if what constitutes an individual's interests is wholly independent of her actual attitudes.

This chapter has defended the Hart-Rawls principles of fairness as justifying the duty to obey the law, in a broad range of cases. It contributes towards the development of the most promising non-consequentialist moral theory. Robert Nozick's examples include some in which a non-excludable good is provided to a group of people. He imagines a neighborhood public address system, with individuals taking turns entertaining their neighbors through loudspeakers that blare sound throughout the neighborhood day and night. The Hart-Rawls principle of fairness has attracted still an objection. This claims the principle is objectionably paternalist. The paternalism objection directly attacks the principle of fairness, and a fortiori attacks any attempt to deploy the principle of fairness to show how people come to be obligated to contribute to the support of the state in which they reside and to obey the laws of a tolerably decent state.

Economists are notoriously averse to paternalism. Happiness-driven economics (HDE) has been widely accused of paternalism, particularly by friends of minimalism. The question of paternalism in HDE raises broader questions about the potential for paternalism in economic policy analysis. This chapter begins with a characterization of minimalism. Then, using a broad definition of paternalism, the chapter examines the anti-paternalist credentials of minimalism and find them wanting. It considers how policy-makers might avoid, or at least minimize, paternalism, arguing that HDE should be part of a less paternalistic approach to policy analysis. Minimalist cost-benefit analysis (MCBA)-based policy threatens paternalism not just for farmers and fishermen, but for those subject to any policy with highly disruptive effects on people's lives. The central charge against minimalist economics is moral incoherence, specifically where that framework extends to the policy realm for weighing the costs and benefits of policy options.

Ethical arguments for creating choice environments that lead people to make better choices revolve around two claims: it makes people better off, and it does so in a way that is entirely compatible with individual liberty. This chapter examines these two claims. The first half of the chapter turns to the conceptual and normative concerns with the claim that choice architecture makes people better off. The second half of the chapter turns to the soundness of the claim that choice architecture is compatible with liberty. Decision-making or advising others often generates a critical attitude that is not always engendered when we decide for ourselves. One way to combat choice architecture hindering the exercise of autonomy is to make it transparent to those who encounter it. In order to fully preserve liberty choice architecture must not block off or significantly burden other choices.

Economists are traditionally hostile to paternalism; public policy-makers and legal academics tend to be as well. Traditional objections to paternalism center on individual autonomy and the freedom to choose, on individuals' ability to learn from their mistakes, and on knowledge problems to which central planners are subject. More recently, in response to empirical demonstrations that people are vulnerable to a variety of cognitive and emotional biases in decision-making, anti-paternalists suggest that such central planners or experts are just as vulnerable. Each of these objections, though superficially plausible, nevertheless is challenged by empirical findings in psychology and cognitive science. Part of the objection to paternalistic interventions stems from traditional assumptions about the evils of paternalistic intervention per se. The strongest traditional assumption is the libertarian perspective that individuals know their own preferences and are better than any third party at choosing among alternatives to obtain the appropriate outcome.

This chapter argues that the empirical evidence cited by the authors, Cass Sunstein and Richard Thaler is capable of supporting a number of competing approaches, including what the author calls libertarian utilitarianism and libertarian justice. Central to Sunstein and Thaler's proposal is their claim that evidence from the social sciences justifies a distinctively paternalistic approach to public policy. The chapter considers three different arguments purporting to justify the use of a paternalist approach to public policy. The first argument comes from a series of publications by Sunstein and Thaler written prior to Nudge. The second reconstructs the argument of Nudge, where the authors merely claim that nudges are inevitable. Finally, the third provides a friendly argument, intended to establish that nudges ought to be paternalistic. This chapter uses an empirical evidence of framing effects to construct nudges aimed at promoting Rawls' theory of justice.

Abel is a poor man in a Third- World country. He gets by, barely, by acting as an all-purpose guide for rich Westerners on vacation. Baker, a very rich American, hires Abel as a guide and is very impressed with the multitude of skills Abel displays over the several days of their relationship. This chapter provides an Abel-Baker scenario, which raises the issue of contracting into slavery. Anthony Kronman assimilates voluntary enslavement to all contracts that call for the performance of personal services as opposed to the delivery of goods or money. There are several types of voluntarily acquired legally enforceable affirmative duties to perform services. Disappointment can occur whenever performance of a contract fails to achieve what the contractors believed would be achieved. The possibility of disappointment is surely no bar to the enforcement of promises, for that possibility attends all promissory obligations.

This chapter argues that paternalism can be a reasonable component of certain social policies directed at adults, focusing on school choice as a key example. It suggests that contrary to the common depiction of paternalism as antithetical to choice, the two policy tools can sometimes supplement each other in productive ways. One key area that generates debates on paternalism, choice, and opportunities is the many policies lumped together under the heading "school choice". The discussion of the Philadelphia school-choice system focuses on the promise that choice would improve equality, and the discussion of the DC program focuses on the promise that school choice would allow families to freely express their preferences. One of the most significant findings arising from the evaluations of opportunity scholarships program (OSP) has to do with the importance of information.