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The New Paternalism, Technologies of Conformity, and Virtue by Default
By: David Matheson


July 4, 2006

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In his classic essay On Liberty, John Stuart Mill famously argued that state restrictions on an individual’s freedom are justifiable only to the extent that they are aimed at preventing harm to others. When it comes to the state’s limitation of a citizen’s liberty, the appeal to what is in her own best interest or for her own good, Mill insisted, “is not a sufficient warrant.”

With various qualifications, something like this principle of liberty is near and dear to the heart of every political liberal, and it is usually thought to stand at odds with state paternalism. Yet, according to a recent special report from The Economist (“The Avuncular State,” 8 April 2006), there is a growing endorsement in academic circles of a kind of paternalism thought to be consistent with the liberal premium on individual liberty. The idea of the new, “soft” paternalism is that citizens’ behavior can be given the right shape by the state – for the sake of their own good – with no significant restrictions on their liberty. A central way of accomplishing this is through a restructuring of the default frameworks for citizens’ behavior.

The Economist asks us to consider, by way of illustration,

[one] example of soft paternalism [that has] has already attracted the interest of governments and the backing of this newspaper: employees should be signed up for company pension schemes by default. Such schemes, which typically attract tax breaks from governments and matching contributions from employers, are usually in the best interest of workers. You might say that joining is a ‘no-brainer’, except that what little brainwork and paperwork is required defeats a surprising number of people. A soft paternalist would presume that people want to join, leaving them free to opt out if they choose. In one case study […] changing the default rule in this way raised the enrolment rate from 49% to 86%.

Since the default policies and mechanisms favored by the new paternalism (which range far beyond restructured pension scheme defaults) include opt-out features, so the thought goes, they can’t be charged with forcing or compelling citizens to act in their own best interests. And this in turn means that the policies and mechanisms avoid the sorts of external restrictions that the principle of liberty proscribes.

Interestingly, the Economist article ends on a less than entirely enthusiastic note. In encouraging citizens to act in the right sorts of ways by default, it suggests, the new paternalism may end up discouraging them from developing the sorts of character traits and intellectual skills that we typically deem praiseworthy:

Reasoning, judgment, discrimination and self-control – all of these the soft paternalists see as burdens the state can and should lighten. Mill, by contrast, saw them as opportunities for citizens to exercise their humanity. Soft paternalism may improve people’s choices, rescuing them from their own worst tendencies, but it does nothing to improve those tendencies. The nephews of the avuncular state have no reason to grow up.

We might capture the force of the Economist’s skepticism here by considering a distinction drawn from Aristotle between the mere conformist to right behavior and the virtuous individual. The mere conformist acts in the right sorts of ways, but is not praiseworthy for so doing, because his actions are not properly motivated. The virtuous individual, by contrast, not only acts in the right sorts of ways but is further deserving of praise for her behavior because it is properly motivated. To illustrate with a rather low-key example, consider a new dog-owner who begins feeding his dog a type of food that is in fact optimally conducive to the dog’s health. The dog-owner didn’t choose the food for that reason, however. His motivation was one of convenience: he simply went to the nearest pet store and picked up a bag of whatever food happened to be the most well-stocked. Contrast this first dog-owner with a second, who ends up feeding her new canine companion the very same type of dog food, but does so because, having taken the time to look into the relative merits of different types of dog food, she decided that food was in fact the best for her dog. There’s an intuitively clear sense in which the second dog owner is praiseworthy in her dog-care behavior but the first is not: despite the fact that both dog owners end up doing the right thing vis-à-vis their dog’s nutritional needs, the second has the right motivation for doing it whereas the first does not. The first dog owner is a mere conformist when it comes to his dog’s nutritional care; the second is virtuous.

In effect, then, the point of the Economist’s skepticism is that even if the default policies and mechanisms of the new paternalism end up promoting conformity to right behavior, there is no reason to suppose that they will promote virtue, for those policies and mechanisms are quite consistent with citizens doing the right sorts of things without the right sorts of motivations. Worse, the new paternalism may end up demoting virtue by promoting conformity in the way it does: the more common it is that citizens do the right thing with the wrong motivation (or perhaps, depending on the nature of the default framework, with no particular motivation at all), the less common it will be that they do the right thing with the right motivation. And the less common it is that citizens do the right thing with the right motivation, the less likely it is that they will develop those stable traits of character and intellect that we call virtues (good reason, sound judgment, apt discrimination, and self-control, just to name a few). This is because, as Aristotle emphasized, the development of virtue requires the practice of virtue: in order to acquire the traits we call virtues, we must repeatedly do the right sorts of things with the right sorts of motivations. The danger of the new paternalism is that its efforts to promote conformity to right behavior by default threaten to undermine this practice condition on citizens’ development of virtue. Simply put, there is no such thing as virtue by default. And, arguably, a central mistake of the new paternalism is to assume that there is (or worse, that we really don’t need virtue at all).

My suspicion is that this very same mistake is made by advocates of new technologies of conformity, i.e. new technologies aimed at the automated short-circuiting of problematic user behavior. Consider, for example, the escalating movement toward implanted radio frequency identification microchips. Vendors are no doubt quite right to claim that users’ self-identification activities become more convenient and more reliable with chip in arm. But this merely speaks to conformity to right identity management behavior. Does it speak at all to identity management virtue? Might it not speak against?

Or consider recent battles about the use of digital rights management technologies, prominent participants of which include many of our own project’s gifted members. (See, for example, here and here.) The main objection to the use of these technologies is not of course that they fail effectively to protect against real copyright infringements. The objection is that they overprotect. And perhaps the overprotection, at least in its more ubiquitous forms, is bound to do something to users much more troubling than whatever its absence might do to copyright holders. As means of securing users’ copyright conformity, the DRM technologies may well incapacitate users’ copyright virtue. It seems pretty clear to me, at any rate, that they won’t secure that virtue by default.
 
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