Let me begin by saying that I’m far more unimpressed by the contribution of behavioral economists than even Wright and Ginsburg. The perception that people aren’t hardwired, so to speak, to always act — in their own interests has only been challenged by those who have made the error of imagining that all human behavior either is or should be all about rational choice on the level of interests. Similarly, Simon’s alleged breakthrough that people are content to “satisfice” rather than maximize when it comes to choice is little more than common sense. Most people, most of the time, don’t have either the time or the inclination to do the calculating required to achieve maximizing. Economists have given a lot of thought, for example, to calculating about how much to tip, but most people barely give it a thought.
A gentleman or a generous man appears not to care—and really doesn’t care—about being precise when it comes to such trivialities. Is his disinclination to calculate contrary to his self-interest? That question can be answered only by someone who knows what his true interests are. That answer, it seems to me, is obviously beyond the competence of the economist. The economist does have the inclination to believe that the person moved by honor or glory is a sucker, while the “entrepreneur” oriented around wealth and power is the model of human excellence. But we might say the economist as economist has no right to make that distinction. Economists do have to acknowledge that General George Washington and General Nathan Bedford Forrest were much greater risk takers than Bill Gates. And people who put their lives, fortunes, and sacred honor on the line (I don’t mean Newt Gingrich) have laughed at the thought that the point of life is autonomy, at least as understood by John Stuart Mill.
The economist has no way of knowing if the artist or statesman or philosopher (such as Thomas Jefferson) who was so lacking in prudence that he took in huge amounts of money but still died poor was happier than, say, the Steve Jobs who died really, really rich. Nobody knows whether Blaise Pascal or Friedrich Nietzsche or Charley Parker would have been happier had they calculated—in the manner of one of today’s “risk taking” bourgeois bohemian innovative entrepreneurs—more about their health and wealth. We wish they could have displayed their excellence while being more sensible, but it’s not for us to say that they could have successfully “satisficed” had they had better guidance. Pascal and Parker were nothing if not risk takers, but economists at are a loss when it comes to explaining their behavior. And the behavioral economist would have nudged the heck out of them against their true inclinations—allegedly for their own good.
So I agree with Wright and Ginsburg that libertarian paternalism is, in principle, an oxymoron. Policies that nudge people in the direction of giving greater attention to their health and wealth, it seems to me, don’t really have the interests of the nudged most in mind. The impulse to nudge originates with members of our bourgeois bohemian elite who just happen to be economists. Our country, as Charles Murray, David Brooks, and others have described, is now divided into what Brooks calls two tribes. There is the “upper tribe” or meritocratic elite that’s smarter, more productive, more bourgeois (or only bohemian—or intellectually/emotionally libertarian—on the level of talk), and more thin and fit than ever. And there’s the increasingly nonproductive, uneducated,, socially detached “lower tribe” that seem to be stupider and fatter than ever.
Nudging people to be healthier and wealthier is in the “upper tribe’s” self-interest and in accord with their relentlessly puritanical moralism when it comes to health and safety. We used to think only the good die young—that is, we used to think that high virtue was connected to a kind of reckless indifference to health and safety. Now we think only the stupid and self-indulgent die young—criticizing them for being too “risk taking” or not attending to all the “risk factors” obsessed over by the enlightened few who put health and safety first. The nudgers are more repulsed than error by the sheer stupidity of those who need to be nudged. After all, type-2 diabetes is almost completely avoidable disease that’s become an epidemic. We can’t outlaw refined carbs, but we can help people avoid the life-threatening inclination of eating too many of them. The impulse for nudging here comes from those inhabiting the truthful and moral world of “whole foods” reacting against the tribe that’s more attached, for a variety of reasons, to “fast foods.”
For the liberal economists of this upper tribe, Wright and Ginsburg’s defense of the risk-taker might seem perverse. It’s one thing to take risks in business. If things go sour you don’t actually die. You can, in America, declare bankruptcy and start over. That why it never seemed to me that the virtue of courage (despite Ayn Rand’s dramatic efforts) really applies to the “heroic” entrepreneur. And stuffing one’s face with the Twinkies or Whoppers may, in a way, be laughing in the face of death, but it’s not really courage—being devoid of noble purpose—either. Not only erroneous but pointless risk-taking surely is not worth defending. That’s not what Kant was thinking about when he praised autonomy!
It surely would be better if members of the lower tribe calculated more about the health consequences of their diets. It might not be better, however, if they obsessed as much about or were as afraid of food as so many members of the upper tribe. So Wright and Ginsburg remain on firm enough ground when they say that government experts just don’t know enough to know what balance would be best for human happiness. Too much and too little concern with health and safety, we might speculate, rob people of ordinary happiness or enjoyment. . It’s easy to add that we really are pretty clueless—even with our social science—about who’s happy. All we have to go on is self-reporting, which may be self-deception or bragging.
But the liberal economist (and many conservatives too) are actually worried about the burden the fat, stupid tribe impose on the rest of us. Imagine all the unnecessary health costs and loss of productive days of employment! The same sort of thinking applies when thinking about the lower tribe’s indifference to saving and providing for their economic futures. In a time when defined benefits are everywhere being replaced by defined contributions, if they don’t get smarter about their choices they’ll end up being impoverished burdens on us all. In both cases: We need to nudge them to take care of themselves so we don’t have to take responsibility for them. Their freedom to err—combined with their stupidity—are threats to the upper tribe’s inclination to be indifferent to their existence.
We can see here, if we look closely, the “liberal guilt” or compassion that was the foundation of welfare-state redistribution morphing into a kind of libertarian inclination to not be bothered by those less fortunate or gifted at all. So I have to disagree with Wright and Ginsburg that the behavioral nudgers don’t take autonomy seriously. They are, as rational choosers, concerned above all with their own autonomy. We could easily wish that our elites were less libertarian and more paternalistic in the manner of, say, Atticus Finch—or were less tribally segregated and displayed a genuine concern for every member of the whole community. We could even wish they were more attuned by the Christian insight that every human person is unique and irreplaceable and of infinite value as a being with a soul. One of my objections to behavioral economists is their lack of genuine class or sense of personal responsibility..
Someone might say that I’m asking behavioral economists to be more than economists. But anyone who makes public policy has to be more than an economist. Political science, as Aristotle says, is the comprehensive science of the human good, and one that requires considerable—if far from complete—knowledge of the human soul. An economist, to me, is a technician. He or she shows us how to maximize our wealth and power. It’s up to us to use that knowledge as we think best. Maximizing wealth and power may not be in our true interests, and the economist as economist should have no opinion on whether or not it is. I, for one, want economists to know their place.
Wright and Ginsburg understand being an economist quite differently or more comprehensively. It’s the economist who teaches the relationship between liberty and responsibility or the intrinsic value of freedom or autonomy. It’s the economist who resists the popular demand for institutions that insulate individuals from responsibility. It’s the role of the economist “to remedy” the “widespread failure to understand” that the independence offered by the market should be the model for all of society and maybe for all human relationships. The more freedom to fail the better. The more we understand ourselves as “sovereign individuals” in the manner of the free market the better. The logic of the market should be the calculation that informs human life as a whole. It’s easy to ask what in the training of the economist equips them to engage in comprehensive reflections on the human good. Certainly Wright and Ginsburg could be accused of mining the philosophers for quotes to support for what they already believed to be true about who we are. They might read Tocqueville (in the fabulous Liberty Fund edition) for political and religious evidence of the emptiness—not to mention impossibility—of autonomy so radically understood.
There’s no denying that when that comprehensive claim of the libertarian economist, when applied politically, displays, surely against its principles, its own form of paternalism. Libertarians consistently fail to convince people that they should abandon every social safety net that insulates them from individual responsibility. Many libertarians actually don’t like democracy or popular choice much. They prefer an interpretation of the Constitution that has a huge role for judges who, applying the “presumption of liberty,” declare unconstitutional all sorts of democratically enacted laws. As Randy Barnett has explained, a consistently libertarian interpretation of the Constitution is both pro-Roe and pro-Lochner or minimizes democratic choice in favor of what’s basically an elitist view of individual choice. So we can say that the economist as comprehensive thinker has, in either the libertarian or behavioral mode, an ambivalent relationship to claims for self-government. The least we can say is that the whole autonomy issue is much more complicated than libertarians think. I’m tempted to add that, thank God, libertarian economists with philosophical pretensions or behavioral economists in the same mode don’t actually rule. That’s why I’m closer to Justice Scalia—or judicial restraint—than Judge Ginsburg on many issues of constitutional interpretation.
From a more political view, it’s obvious that we’re already engaging in soft forms of behavioral economics with the intention of influencing individual behavior in somewhat non-individualist directions. The tax deduction for charity is one foundation of a kind of American distinctiveness that quite effectively limits government. All sorts of American social, educational, religious, and local institutions are sustained by personal and corporate donations, and the ability of individuals to rely on these singularly strong social institutions makes them less dependent on government. The goal here is not quite autonomy in the sense defended by John Stuart Mill or Wright and Ginsburg. It’s assumed that radical autonomy is impossible, that promiscuous distrust of all authority makes free and responsible thinking and action impossible. The best way to limit the political dimension of human life is to support the social dimension, and the best kind of political support for those “intermediary institutions” is indirect. Elimination of the charitable deduction might, from a consistently libertarian view, serve individual autonomy, or it might, from an Aristotelian view, undermine the conditions that sustain autonomy in our country.
Another form of behavioral economics in the service of a political end are the family-friendly features of the so-called “Bush tax cut.” Rick Santorum, of course, has taken a lot of libertarian heat with his suggestion to triple the deduction per child. The thought here is our individualistic behavior (which includes obsession with one’s own health and safety) has produced a nation with a lot of old and unproductive people and fewer young and productive ones. And there’s at least some connection, we now see clearly, between economic growth and at least a certain level of fertility. So the Santorum approach might be justified with the claim that some people contribute to our nation’s future primarily through money, others through children. We need both. It goes without saying that this approach—which regards thinking of people not only as autonomous individuals (with rights) but as parents (with duties)—is contrary to the libertarianism shared by both the fashionable version of behavioral economics and more consistently libertarian economics. Arguably our Supreme Court can be understood to have said, in Planned Parenthood v. Casey and Lawrence v. Texas, that our Constitution’s view of liberty commands that we must think of each of us as a free and equal individual and not as a biological man or women. But that may be only on the level of coercion, not on the level of nudging. According to Santorum’s book It Takes a Family, thinking politically about what’s required to sustain families is indispensable for sustaining the inculcation of moral virtue required to exercise one’s one virtue responsibility. On that point: Both Aristotle and Locke agree.
Let me close by mentioning that both forms—paternalistic and nonpaternalistic—of libertarian economics are simply blind to the criticism found in philosophers from Leo Strauss to Martin Heidegger that too absolute or empty a view of autonomy can’t sustain the free individual from the imperatives of productivity or technology these days. Consider the example of surgical enhancements—nipping, tucking, Botoxing, enlarging, reducing, and so forth. According to a literal reading of the Hippocratic Oath, they should be illegal. They turn a person into a patient for reasons having nothing to do with his or her health. That’s why health insurance generally doesn’t cover such procedures. But out of a concern for autonomy, we allow individuals to choose them. They most often choose to look younger and more pretty and pleasing. They choose them, in other words, to be more productive, more marketable. When some choose them, others are pretty much compelled to do the same to remain competitive.
So radical or undefined autonomy is readily trumped by productivity. I could go on, of course, to show how this rule applies and will apply more reliably to mood control and various cognitive enhancements. Individuals will remain free to choose against them, but not if they want to be successful in their chosen professions or avoid loneliness. We can see that even autonomy-freak professors are succumbing, gradually but steadily, to the imperatives of productivity. One big reason: They are unable to give autonomy any more content than one’s own subjective preferences.
Joshua Wright and Judge Ginsburg offer a powerful critique of the Behavioral Law and Economics (BLE) movement on several fronts, but primarily based on the threat BLE poses to individual liberty. They provide a helpful and straightforward history of the rise of Behavioral Economics, which applies a simple premise that runs contrary to neoclassical economics:…
Joshua Wright and Douglas Ginsburg have given us a very good analysis of many of the problems inherent in normative behavioral law and economics (especially in the form of “libertarian” or soft paternalism) from the perspective of liberty. I am in basic agreement with them. Thus I shall simply elaborate some further criticisms of this…
In this essay I will begin by disagreeing with the authors on two counts. First, I will argue that defenders of liberty might want to think long and hard about specific issues, such as retirement accounts, where liberty and the free society might be enhanced through nudging. Put another way, short of a libertarian winning…