A Third Theory of Paternalism

44 Pages Posted: 20 Jun 2014 Last revised: 14 Nov 2014

See all articles by Nicolas Cornell

Nicolas Cornell

University of Michigan Law School

Date Written: June 18, 2014

Abstract

This article examines the normative significance of paternalism. That an action, a law, or a policy is paternalist generally counts as a reason against it. This article considers three reasons why this might be so — that is, three theories about what gives paternalism its normative character.

This article’s negative claim is that the two most common ideas about why paternalism is generally wrong are mistaken. The first view, which underlies the recent work by Thaler and Sunstein, maintains that paternalism is bad because it involves coercive interference with people’s choices. This approach proves inadequate, however, because more coercive actions can be less objectionably paternalist, and vice versa. Paternalism’s impermissibility varies independently from its coerciveness. The alternative common theory of paternalism focuses on the distinctive intention behind paternalist interference. But this approach is ill-suited to explain the normative significance of paternalism because permissibility is not generally dependent on intention.

This article sketches a third conception of paternalism — one that locates its normative significance in neither coercion nor motives. This approach maintains that paternalism involves expressive content. Paternalism expresses the idea that the actor knows better than the person acted upon; it implies that the other party is not capable of making good judgments for him or herself. The normative significance of paternalism derives from the typical impermissibility of making such an expression. That is, paternalism is wrong in the same way that an insult is wrong. This understanding of paternalism’s normative significance provides the tools to make intelligible the charge of paternalism leveled against some policies and conversely to explain why other paternalist policies are permissible.

Keywords: paternalism, paternalist, nudge, behavioral economics, expressive

JEL Classification: H00, K00

Suggested Citation

Cornell, Nicolas, A Third Theory of Paternalism (June 18, 2014). Michigan Law Review, Vol. 113, 2015, Forthcoming. Available at SSRN: https://ssrn.com/abstract=2456419

Nicolas Cornell (Contact Author)

University of Michigan Law School ( email )

625 South State Street
Ann Arbor, MI 48109-1215
United States

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