A Third Theory of Paternalism

This Article examines the normative significance of paternalism. That an action, a law, or a policy is paternalistic generally counts 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 claim is that the two most common explanations for paternalism's negative character are mistaken. The first view, which underlies the recent work by Professors Thaler and Sunstein, maintains that paternalism is negatively charged because it involves coercive interference with people's choices. This approach proves inadequate, however, because more coercive actions can be a less objectionable form of paternalism, and vice versa. Paternalism's impermissibility varies independently from its coerciveness. The second common theory of paternalism focuses on the distinctive intention behind paternalistic 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 motive. 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 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 the charge of paternalism leveled against some policies intelligible, and conversely to explain why other paternalistic policies are permissible.IntroductionPaternalism is widely understood to have a negative connotation. Proposed laws - on topics ranging from seat belts1 to sodas2 to health insurance3 -are frequently criticized on the grounds that they are paternalistic. Those defending criticized laws or policies often respond by developing nonpaternalistic justifications for the proposed policies.4 Both sides of the political aisle routinely characterize the other side as paternalistic.5 In short, paternalism carries a very negative connotation in legal and public policy discourse.This Article attempts to answer the question: What's wrong with paternalism? This isn't a rhetorical question meant to prompt reconsideration of whether paternalism is wrong. This Article takes as a starting point the assumption that paternalism is, at least generally, something to be avoided. This is not to say that paternalism is always wrong. But the fact that an action, law, or policy would count as paternalistic is at least a prima facie reason against adopting it- if a paternalistic action, law, or policy is permissible, it is permissible only in spite of its paternalism. The aim of this Article is to explore why paternalism is, in general, a bad thing. The answer to this question is important because it will inform when and to what extent a law or policy's paternalism should count against its adoption.This Article considers three answers to this question -that is, three theories about what makes something paternalistic and what gives paternalism its normative character. The central thesis is that the two most common explanations for paternalism's character are mistaken. While philosophers and legal scholars have devoted a great deal of thought to the topic of paternalism, they have almost always focused on two elements: coercion and intent. What is wrong with paternalism, the common wisdom says, is either its use of coercion or the impermissible intentions behind it. According to these theories, paternalism is wrong because it prevents us from making our own choices, or because it intends to prevent us from making our own choices. …