Cass Sunstein reviews Sarah Conly’s Justifying Coercive Paternalism in the latest New York Review of Books:
Her starting point is that in light of the recent findings, we should be able to agree that Mill was quite wrong about the competence of human beings as choosers. “We are too fat, we are too much in debt, and we save too little for the future.” With that claim in mind, Conly insists that coercion should not be ruled out of bounds. She wants to go far beyond nudges. In her view, the appropriate government response to human errors depends not on high-level abstractions about the value of choice, but on pragmatic judgments about the costs and benefits of paternalistic interventions. Even when there is only harm to self, she thinks that government may and indeed must act paternalistically so long as the benefits justify the costs.
Conly is quite aware that her view runs up against widespread intuitions and commitments. For many people, a benefit may consist precisely in their ability to choose freely even if the outcome is disappointing. She responds that autonomy is “not valuable enough to offset what we lose by leaving people to their own autonomous choices.”
Perhaps the book will earn her a title as “Bloomberg’s court philosopher,” (she defends New York’s trans-fat ban as a prime example of justifiable paternal coercion), for Conly is of course no religious conservative. The real reason to question libertarian freedom is not an overriding moral imperative—the good of anyone’s soul—but rather because “studies show” what’s good for people’s health and wellbeing. New neurological research, along with data analysis, suggests that things we already value could be attained more efficiently with the expedient of coercion.
Thus in her conclusion there’s a lingering attempt to honor the kinds of values liberals intuitively feel allegiance to. After making this striking argument in favor of paternalism, Conly still wants to insist that our freedom remains essentially unchanged. Indeed, she says, if we freely agree on the “ends” while varying the means to include coercion, we might actually enhance our autonomy. This strikes me as implausible, as it does the reviewer, and in a way actually seems more paternalistic than a simple assertion of knowing what’s best in a particular case. Regardless, as Sunstein says, this book is an important one in that it raises serious questions about Mill’s harm principle, from a liberal perspective, as the standard to which citizens pursuing authentic liberty ought to repair.