Libertarian Paternalism And Susan Hurley's political philosophy

ABSTRACT

As the use of nudges by governmental agencies becomes more common, the need for normative guidelines regarding the processes by which decisions about the implementation of specific nudges are taken becomes more acute. In order to find a justified set of such guidelines one must meet several theoretical challenges to Libertarian Paternalism that arise at the foundational level. In this paper, I identify three central challenges to Libertarian Paternalism, and suggest that Susan Hurley's political philosophy as presented in her Natural Reasons (1989) can be viewed as offering powerful responses to them.

KEYWORDS:

• Libertarian Paternalism
• nudge
• Susan Hurley
• personal autonomy

Acknowledgements

I thank Hadrian Mamou and an anonymous referee for their helpful comments on previous versions of this paper. My research was supported by the Israeli Science Foundation, Grant Number 327/18.

Disclosure statement

No potential conflict of interest was reported by the author(s).

Notes

1 See for example Bovens 2009; Hausman and Welch 2010; Wilkinson 2013; Saghai 2013a and 2013b; Mills 2013 and 2015 and Lepenies and Malecka 2015; Sunstein 2016; Engelen 2017; Schmidt 2017 and 2020.

2 Most, but not all. Schmidt 2017 is one notable exception. Schmidt’s conclusions regarding policy recommendations are very close to the ones I draw here. However, the justificatory basis I use here and the conception of liberal democracy on which it is based are very different from the ones he is committed to.

3 As will be explained, this feature of Hurley’s account, i.e. the possibility of one being mistaken about which features of reality one values, makes it especially fit for the purpose at hand. It gives Hurley’s account of personal autonomy a flexibility that another important and highly influential cohertanist account of personal autonomy, that of Ekstrom (1993), lacks (although the two accounts are close in many respects). Space limitations do not allow me to discuss Ekstrom’s account (and other important accounts of personal autonomy) in detail here.

4 But not necessarily "would". This is an important difference. A rational agent does not have to care about whether or not signing the prenuptial agreement is the default option, and she certainly does not have to care about that so much that whether or not it is the default option changes the way she chooses. However, it should be rationally permitted for her to do so.

5 For discussions other than Hurley's, see Broome (1991, 1999), Bhattacharyya, Pattanaik, and Xu (2011), and Fumagalli (2020).

6 Whatever is the criteria for the "appropriateness" of the process of deliberation Amal goes through (as long as they do not include the trivial criterion according to which a process of deliberation is appropriate iff it leads to the correct judgement).

7 Although in some cases it can. This seems to be the case, for example, when it comes to “clinical nudges” in healthcare (i.e. nudges that health practitioners use to influence the decisions of specific patients). See for example the discussion in Avitzour et al. (2019).

8 Schmidt (2020) adopts a more radical line of defense according to which all (or at least most) nudges do not interfere with autonomy. However, in order to support this claim, he adopts a very pluralistic conception of rationality, ecological rationality. I think Schmidt’s argument work for those who adopt his conception of rationality. Furthermore, in her latter work (Hurley 2003 and 2005) Hurley herself adopted a similar notion of rationality. However, I also think that Hurley’s analysis in Natural Reasons has the resources to offer a more general response to the challenge from autonomy, a response that holds also for stricter notions of rationality.

9 The use of all nudges, not only those which are specifically designed to trigger deliberative faculties, such as "the cooling down" nudge, but also those nudges which are system 2 based.

10 Thus, argues Hurley, they are vulnerable to similar objections to the ones directed at the claim that just any action in light of one's preferences is autonomous. I will not present Hurley's argument against such approaches here – it can be found in Hurley 1989, chapter 6.

11 This is so, it is important to emphasis, irrespectively of one’s notion of rationality. As explained in the previous section, as long as one’s notion of rationality is not the trivial one that put no restrictions on rational behavior, questions about the eligibility of distinctions will arise.

12 However, the same is true with respect to other concepts that play a central role in most political ideologies, such as welfare, responsibility and so forth. My discussion in this essay touches mainly on autonomy and rationality. However, Hurley's political theory is much wider and cover these other concepts as well.