Chapter 30

I think that the libertarian belief that one cannot legitimately be constrained to help others (in the absence of contracts, etc.) is quite false. However, I will argue that even if we accept that belief, libertarianism is consistent with more control over the individual, including government control of the individual, than its adherents might believe. While libertarians clearly do not want to accept paternalism, I will argue that paternalistic interference is consistent with basic libertarian beliefs: Since libertarianism can allow interference in order to protect us from harm from others, it can allow it in order to protect us from ourselves.

There are different forms of paternalism, some more plausible, to my mind, and some less plausible. All paternalists believe that it is permissible to intervene in people’s actions in some way so as to make those people better off. Some paternalists believe in objective accounts of welfare, where what makes a person better off is not merely a function of what that person herself wants but rather involves some particular way of life that they believe is appropriate for reasons other than that it is desired by the person living the life. For many, these objective standards derive from some distinctive feature of what it is to be a human; if humans are distinctively rational, for example, we are better off insofar as we exercise our distinctively human rational capacities instead of lying about all day in a drunken stupor, even if a drunken stupor is all we aspire to. Others believe that the successful life requires action in accordance with religious or moral codes, so that we make someone better off if we are able to get him to, for example, refrain from eating meat on Fridays or rein in his penchant for theft. I do not myself find objective standards of welfare convincing; more to the point, though, imposition of standards not a person’s own does seem to infringe on liberty. Insofar as libertarians (and others) want to protect the individual’s ability to live the life he chooses, this form of paternalism is incompatible with libertarian principles. To declare that a person’s own values may be set aside when we determine what sort of life that person should live seems to do many things we don’t approve of: to diminish individuality, to limit our freedom to determine our own life-plans, and to suggest an unhappy differentiation between those who can correctly see what is valuable and those that can’t.

However, other paternalists adopt a subjective standard of welfare. The appropriate standard for you is your own. You are living a life that is successful, in terms of welfare, if you are living accordance to your own values. One person might want a scholarly life, another might want life of public service, and a third might just want to devote themselves to family. A fourth might want to lie on the sofa and watch lots and lots of football. Different individuals value different things and want to live different sorts of lives, and I would agree that they make no error in wanting these different lives, even if, as we will see below, they do make errors in the means they choose to pursue these ends. It is this second form of paternalism that I argue is compatible with libertarianism. Interfering in someone’s choices when those choices are contrary to that person’s goals, even interfering coercively where the costs and benefits warrant that, is a practice that can be consistent with basic libertarian principles.1

This may seem surprising. After all, we think of libertarians as believing that the individual, “being sovereign over her own life, has an absolute, exceptionless right against such interference regardless of the benefit to herself that is part of the paternalistic package” (Arneson 2011: 23). At least some libertarians have seen government intrusions into the home and private life generally as particularly objectionable forms of regulation. Government control over the actual body is even worse; libertarians support the principle of self-ownership as a foundation for other claims about the illegitimacy of government intrusion, and self-ownership may be seen as located particularly in the ownership of one’s own body. The body, after all, is the way we interact with the world, the way Locke sees us as mixing our labor with unclaimed resources so that we may come to own them, and so on. Indeed, even non-libertarians may find the body central to many morally relevant functionings—it’s our means of experience, of self-expression, the way we make our desires felt in the world, and generally fundamental to who we are and the way we do things. For anyone, then, external control of the body needs justification, and for libertarians in particular, such justification may appear difficult to discover.

However, the argument for paternalistic intervention is straightforward. The same principles that allow us to stop one person from harming another allow us to stop a person from harming himself. We know now that decision-makers are not the rational, self-interested agents they might once have been thought to be. We suffer, all of us, from deep tendencies to be influenced in our decision-making by features that aren’t relevant and that a perfectly rational agent would ignore. We are affected by irrelevant features in descriptions (framing) and by an unwarranted belief that we are less likely than statistics would indicate to undergo injuries; we are inclined to accept the status quo more than its actual value would warrant, and so on and so on. Many of these behaviors, and strategies for avoiding them, have been discussed in great detail, and they indicate that we don’t make decisions in quite the way we might previously have imagined (Thaler and Sunstein 2008; Ubel 2009; Conly 2013; LeGrand and New 2015).

Let us say, for example, that in common with many others, I have deep, consistent, long-lasting desire to live a healthy life for as many years as that can be maintained. I desire health for its own sake—it feels better than illness—and because it allows me to engage in the other activities that make my life fulfilled. It’s a desire that I have voiced consistently and which furthermore has influenced my behavior in many ways. I eat five servings of fruit and vegetables a day; I drink no fewer than eight glasses of water and no more than one glass of (red, antioxidant-laden) wine; I watch my weight. However, tempted by a decadent high-school boyfriend years ago, I started to smoke, and by the time his manifest ill judgment had led him to move on to another, I was hooked. Now, of course, I try to quit occasionally, but I fail. When I am not in the throes of a desire for nicotine, I think reasonably that this is an unhealthy and expensive habit, that giving it up will get no easier later, that the health effects of smoking will only worsen with time, and that the time to quit is now. When I am in the throes of desire, though, I tell myself there will be a better time later; life at present is just too stressful because of college applications, because of college exams, because of the job hunt, because I need to work hard for a promotion, and so on. I think that since smoking hasn’t killed me yet, it’s not so likely to do so later, and I focus on stories of the great-aunt who reputedly smoked like a factory and lived to 90. I smoke the cigarette, even though as soon as I have finished it I see once again that a life in which I routinely crouch behind a windbreak in the winter chill 50 feet from the office door to do something that is expensive and unhealthy is not really the life I want. Indeed, even as I want the cigarette, I wish that I did not want it and that I could live in a way that is consistent with my overall goals.

This is a familiar scenario. One of my desires is at odds with my other desires. Having inconsistent desires is common and not necessarily a grave cause for concern, but in this case, the particular appetite is destructive; it prevents me from reaching my own goals. When I give continue to smoke, I do myself harm. Just as others should not be allowed to harm me, or at least not in significant ways, I should not be allowed to harm myself.

What matters is not just that I do something that endangers my health. There are people for whom health is not all that important, or at least not as important as other things. High-altitude climbing is quite dangerous, and the chances of accident are quite high over time, yet many people persist in climbing again and again despite their vivid knowledge of the risks, even after they have seen companions and even family members die on the heights. 2 Their psychology is different from that of most of us, but their desires, however unusual, seem consistent, and their reasoning (as far as one can tell from the numerous accounts) is sound: They know the dangers of their activity but find the rewards worth the risks. This not the same for the smoker I have described: She fundamentally opposes the activity in which she finds herself engaging, but a combination of physical craving and poor reasoning when in the grips of that desire subvert the decision-making process, and she chooses something that undercuts, rather than enhances, her ability to reach her own long-term goals. She acts voluntarily, but she acts in a way that is in opposition to her ongoing interests.

It is not, I would argue, that she literally is unable to withstand the craving for a cigarette, so that we might say she isn’t even making a decision in this case. If she believed that smoking the cigarette would cause her immediate death—if she knew it was laced with cyanide, so that after satisfying her craving for nicotine she would drop dead—I don’t doubt that she could resist it. Rather, the temptation to smoke allows her to accept, temporarily, poor reasoning as good; to discount the future unduly; to tell herself that since the first cigarettes haven’t harmed her perceptibly, the following lifetime’s worth of cigarettes won’t either; to succumb to unwarranted optimism (next time she’ll be able to quit); and so on. ³ She suffers from familiar cognitive biases: anchoring, future discounting, and the optimism bias, and she makes decisions that are at odds with what she herself believes to be her own best interests.

Smoking, on the part of someone who wants to be healthy more than she wants to smoke, is a relatively obvious case where poor reasoning interferes with the person doing what is in her own best interests. There are, of course, many others. Some people may make cognitive errors when tempted by appetite, as in the smoking example; they don’t eat to the point of obesity (and beyond) because they truly value the joys of eating more than they do good health and being thought attractive by others but because they do badly at calculating incremental effects when they are hungry. Or, poor decisions may not actually involve any positive appetite for the thing we choose; people eat too much because they “mindlessly” eat the portion put in front of them even when that is more than they actually want (Wansink 2010), or because they correctly calculate that larger portions cost less per ounce than do smaller portions and want the more economical deal even though that yields no more satisfaction,4 or perhaps for other reasons. Some, of course, eat more because they truly prefer eating more fatty foods to being healthier, but evidence shows that for many people, the decision is based on flawed reasoning rather than reflecting the greater desire. And so on: We understand that too often we fail to save money for our old age, to choose the best pension, to negotiate the best contract, to choose the surgery that is in our best interests, or to vote in the way that reflects our true desire.

Why, after all, do we find choice to be morally valuable? What makes it worthy of respect? Because choices express our desires, because they demonstrate our values, because they help us live the life we want to live, because they help us create an individual existence like no other, because they demonstrate our uniquely human capacity for the rational consideration of facts and our appreciation of those in determining what we decide to do—all of these are touted by those who value the integrity of personal choice. All these things may well be good reasons for respecting choices when those choices have these valuable properties. But while it may be said of some choices that they have these attributes, it is manifestly not true of others. On the contrary: Some choices are contrary to what we truly want, are destructive, incline us to accept influence by our peers rather than manifest individuality, and arise from unrecognized irrational bias. To say that such choices allow of no interference is foolish.

When we speak of ownership of the self, we must remember, after all, that the self is not unitary. On the one hand, I desire a cigarette. On the other, I wish I didn’t desire the cigarette and wish I would not smoke it. One aspect or other of the self will be the loser, here; we will act in service of one desire and at the expense of the other. Surely we seem to be more in charge of ourselves when we serve the longer-term desire, or the desire we have endorsed, rather than the intermittent desire whose existence we regret. If others need to help us to make that happen, the end can be more, rather than less, psychological integrity. Robert Nozick himself says that there is clear significance to the fact that one is

a being able to formulate long-term plans for its life, able to consider and decide on the basis of abstract principles or considerations it formulates to itself and hence not merely the plaything of immediate stimuli, a being that limits its own behavior in accordance with some principles or picture it has of what an appropriate life is for itself and others, and so on.... [a being with] the ability to regulate and guide its life in accordance with some overall conception it chooses to accept.

(1974: 49)

Indeed, for Nozick, much of the force of the libertarian argument for non-interference rests on this special evaluative feature of humans. Interference is destructive of our attempts to craft a life:

Why not interfere with someone else’s shaping of his own life?… I conjecture that the answer is connected with that elusive and difficult notion: the meaning of life. A person’s shaping his life in accordance with some overall plan is his way of giving meaning to his life; only a being with the capacity to so shape his life can have or strive for meaningful life. (1974, 50)

While Nozick elaborates on this power to shape one’s own life in light of one’s goals as a reason not to be required to help others, it clearly doesn’t provide the same rationale for protection against paternalistic measures. On the contrary: If we want to shape a life, to do what is needed to reach our goals despite our natural human tendency to make errors of reasoning that prevent us from doing that, paternalistic measures are called for.

Can libertarians argue that the two cases are significantly different? That there are some differences is clear. In the one case, a person is hurting someone else, and in in the other, she is hurting herself. (Some may believe that in undermining one’s future interests, one is essentially hurting a different person, one’s future self, and that one has no right to hurt that distinct person. While that is an intriguing thesis, I don’t find it convincing that one’s future self is [typically] a truly different person, and I will not rely on that argument here.) The question is what the significance of this difference is in the case of harm.

One might argue that in the case of self-harm, a person has necessarily consented, and this consent vitiates any grounds for intervention. If I go to hit a random passerby in the face, I intend to do something that infringes on his liberty, and it is permissible (or in some cases obligatory) for others to intervene. If I punch someone in the face in the course of a boxing match, though, I am taken to have his permission; we have agreed to partake in an activity that we know includes risk of intentional harm and, quite possibly, serious harm. The person I punch has no cause for complaint as long as I have followed the rules we’ve agreed to, even if the harm I inflict is considerably more serious than the harm I would have inflicted on the random passerby.

The situation where I inflict harm on myself may look considerably more like the boxing case than like the attack on the stranger. Even if I am in some sense struggling with myself in the face of temptation, the agency involved is my own. (This might not be the case with a truly irresistible compulsion, but not all cases of self-harm can be construed as irresistible compulsions.) I don’t feel that I have been overwhelmed by an alien force. Rather, I feel that I’ve engaged in some irrational thinking that appeared to justify my poor choice. In some cases, tendency is exacerbated by my being in a situation where I feel temptation or emotion. Other cases of self-harm may involve no feelings of conflict at all; many cognitive biases affect our actions in the absence of any occurrent desires. In these cases, there is no sense whatsoever of split agency—the decision-maker simply accepts, for example, the default option as the best, without reflection. I do what harms me without a moment of resistance.

So, whereas punching a random passerby is clearly a violation of his rights and clearly has an identifiable violator, self-harm may look like a case where I’ve agreed, in some sense, to do the thing that hurts me, and in that case, however harmful it may be, it does not constitute an injustice that others should prevent me from inflicting. When Nozick (1974: 161–2), for example, talks about fair transfers of property, the criterion for justice in the transaction is that everyone involved agrees to the transaction. It is only if the exchange is fully voluntary that we are bound to respect it, but if it is fully voluntary then, all things being equal, we are. In the case of voluntary self-harm, one may argue that it would be illegitimate for a second party to intervene when a person is doing something to himself voluntarily.

This isn’t so clear, though, when we look at the actual decision making involved. A person who takes up a cigarette and smokes it is, in a sense, acting fully voluntarily—no one else is making him do it, and I’ve stipulated that in this case we should not insist that the smoker is under some sort of compulsion. However, when we consider what counts as true consent, we generally include as a criterion that the consenting party has full knowledge of the relevant facts and is capable of reasoning appropriately in light of them. Thus, we don’t hold that children or the mentally disabled are capable of consent, because one or both of these factors is too likely to be absent. A child may, to be sure, understand the laws of physics well enough to know that if his parachute fails he will fall very hard and very fast, but we still think a child’s consent to parachuting isn’t valid, because we doubt that he truly appreciates the dangers. Even when knowledge or capacity is only temporarily missing, its absence invalidates consent; thus, a person who is drunk (even if conscious and generally aware of his or her situation) cannot consent to sexual relations, because the capacity for judgment is undermined by the alcohol. In medical contexts, too, the need for consent requires not merely that a person agree to what the doctor may suggest as to treatment but also that he actually understands what it is he is agreeing to. To say that someone acts without external compulsion and to say that he has given genuine consent are two different things, as we generally recognize.

So, to argue that we have consented to our own self-harm, and that therefore intervention is unjustified, takes some doing. The mere fact that we perform an action voluntarily doesn’t mean that we actually understand precisely what it is that we are doing. Biases influence us in ways we cannot identify as we make our decisions, so that often when we try to be objective and think clearly, we fail to do that. Knowing the facts in the sense that one may repeat them and actually having a vivid sense of what those facts mean in terms of one’s own life are very different things. Presumably this is why we can know, for example, that our chances of winning the lottery jackpot are 1 in 4,496,388, but at the same time we think this is a better way to prepare for solvency in old age than investing the cost of the tickets in a savings account.5 We don’t really get it.⁶

One may, of course, stipulate that agreement in such circumstances still constitutes consent, but in such a case, “consent” then loses what moral weight it might have had. The force of a choice’s being voluntary is undercut when you voluntarily agree to something that isn’t really what you want; say, the surgery that is framed in the most psychologically pleasing way rather than the surgery that best advances your ends. Nozick has said if we want to describe the correct principle of distribution through a maxim of the type “From each according to x, to each according to Y,” that the relevant factor in just distribution is choice: “From each according to what he chooses to do, to each according to what he makes for himself…and what others choose to do for him and choose to give him of what they’ve been given previously…and haven’t yet expended or transferred.” Thus, as he says, it may be summarized “From each as they choose, to each as they are chosen” (Nozick 1974: 160). Choice, however, doesn’t have this normative force if it is largely a function of the confluence of externalities.

Much of the libertarian opposition to laws that require us to help others seems to rest on the belief that such a requirement violates self-ownership, or autonomy, or some sort of inviolability of the person. They see such laws forcing us to expend our own efforts on others’ behalf when we have not agreed to do that, and libertarians see that as akin to involuntary slavery, where another controls one’s body and one’s labor. Not only would the requirement that we work for others appear unjust in itself on this interpretation, but it might also lead to the other person having an unfair advantage over ourselves, due, frustratingly, to our own efforts on his behalf. What we deserve for ourselves has gone to someone who has no just claim to it.

I don’t agree with this interpretation of regulations that force us (upon occasion, usually with no great sacrifice to ourselves) to help others. However, even if one did agree that being forced to help others was an illegitimate intrusion for these reasons, being forced to help ourselves is obviously very different. My body is not being pressed into service on behalf of someone else. No others will gain an advantage over me through my efforts. My own goals will be furthered by the acts that I am constrained to do. I will be better off by my own lights. The only element of coercion applies to the means I choose to my ends.

One might, perhaps, argue that a sufficient amount of interference, even to one’s own benefit, can still make a person feel like a slave: a slave to prudence, or a slave to duty, or just a slave in the sense of a person who feels he has no discretion in his personal choices. Diet, exercise, reading material, drinking habits, social interactions are all forced on him in line with, granted, his own goals and ideals. We can well imagine that a person would become alienated from even his own goals if he is forced to work in accordance with them when he doesn’t want to. Say I am one of these people who describes herself as a writer but who actually finds she never quite gets around to sitting down and writing anything other than the occasional story idea. Even if I really do want to become a novelist, and some well-meaning paternalist chains me to my desk until I churn out a given number of pages per day, I am not likely to rejoice at this fulfillment of my dream. (I might, perhaps, especially if the novel-writing turned out to be spectacularly amusing and successful. There is some attraction at least to so-called Ulysses contracts, where I voluntarily commit to being controlled by others in the future, for my own benefit. In the example given, such precommitment is not imagined—some other person merely decides to make you take the appropriate means to your goal.)

Such a picture ignores the fact that almost none of us is so monomaniacal in her goals, however. Even where we have one greatest goal, we have others as well; the most important goal need not be exclusive and very seldom is. We want to relax, to listen to the rain on the roof instead of getting to work, for example. We also do get some satisfaction from making ourselves make appropriate decisions, and where that is relevant, making ourselves do the work. This should not be overstated—for most of us, control of the self is important but not necessarily our greatest goal and, again, not an exclusive goal. And it is something we care about differently when it comes to different activities. (Most of us don’t seem to mind at all that the Food and Drug Administration prevents us from spending our money on fraudulent drugs or fruits polluted with E. coli.) Given all our goals in combination, it is not likely that being chained to our desk would be a boon by our own lights. Nor, given the fact that we do care to some extent and in some contexts about liberty of choice, are we likely to want all our decisions taken out of our hands, even if all the right means are then chosen for our (other) goals. This slippery-slope scenario, peddled so often by those who oppose paternalism, ignores the fact that paternalists aim to do what advances our interests, and a complete state of unfreedom would not do that inasmuch as we have an interest in freedom. So, the prospect of servitude to the self is not one we need to worry about.

Libertarians may, like anyone else, fear that paternalistic laws will be ill-crafted. That is fair enough. Those who are truly paternalistic (who indeed intend to benefit us by constraining our requiring some actions) may make mistakes about how best to do that. Others may pretend to be paternalistic when they are not, requiring us, say, to use lots of milk products as a calcium source only because they’ve been paid off by the dairy industry. Or, they may require that we pursue certain ends, like health, in which most of us do have an interest, but only for their own purposes. Nozick imagines a slave owner who forbids his slaves to participate in dangerous activities such as mountain climbing or smoking because these activities threaten his financial return. While this might be coincident with the slaves’ goals, the owner’s only concern is his own advantage (1974: 291). The concern that paternalistic regulations might be misused is reasonable, and we have had experience of all of these unfortunate types of legislation. This, however, is a very distinct sort of objection to paternalism. It is no longer a principled objection but a practical one, based on fears that the implementation of paternalistic laws may be difficult to accomplish effectively. It is an objection that has nothing peculiarly libertarian about it, since it is shared by public-policy theorists of all sorts. That we need to be careful when we allow others to make regulations that will affect what we can do is no argument for libertarianism and no argument against paternalism.7