Should We Be Free Not to Be Free to Ruin Ourselves? Gambling, Self-Exclusion Agreements and the Brain

Abstract

Willpower is bounded. In order to cope with bounded willpower, humans put up ‘self-paternalistic’ safeguards to shield themselves from diminished self-control when faced with temptations. Willpower is especially bounded where ‘addictions’ are concerned.

This paper focuses on the legal treatment of one specific class of safeguards against limited self-control: Self-exclusion agreements between casinos and problem gamblers, in which the gambler vows not to return to the casino.

The common denominator of all ‘self-paternalistic’ safeguards is that the actor tries to limit his or her future strategy space in order to maximise his or her perceived overall self-interest. The limitation of the future autonomy is itself autonomously chosen. This leads to the philosophical and legal question, to what degree (if at all) it is possible to limit one’s future autonomy.

The paper is divided into four parts. The first part will outline the dimensions of problem gambling and describe the mechanism of self-exclusion schemes (Chapter II).

The second part will deal with the questions whether the law should allow the effective limitation of one’s future autonomy, whether it does allow it, and – if the answer to the latter question is in the affirmative – to what extent actors can limit their future strategy space (Chapters III-IV).

The third part of the article addresses the question if there is a good reason to prefer the decision to self-exclude over the later decision to gamble (Chapter V). I will point to several studies which show that there are physiological dysfunctions suggesting that the gambler's decision to gamble is indeed arrived at by different neural processes than the decision to self-exclude.

The fourth and final part (Chapters VI-VII) discusses several regulatory options, and scrutinizes the self-exclusion arrangements proposed by the Gambling Commission in the United Kingdom against the background of the experience gained in Germany and the United States. I conclude that the enforcement of self-exclusion agreements by private litigation is preferable to the exclusively public enforcement envisaged by he Gambling Commission.

Keywords: Gambling, self-exclusion