Abstract
This paper explores the extent to which behavioral public policies can be both efficient and democratic by reflecting on the conditions under which individuals could rationally consent to them. Consent refers to a moral requirement that a behavioral public policy should respect what I call a person’s value autonomy and conception of the good. Behavioral public policies can take many forms. Based on a social choice framework, I argue that fully paternalistic and prudential behavioral public policies are unlikely to trigger a hypothetical form of rational consent. Non-fully paternalistic behavioral public policies with partially non-prudential motivations are less problematic in this perspective. In any case, a public deliberative stage preceding the implementation of policies seems to be the best democratic way to justify them.
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Notes
Behavioral insights are ‘lessons derived from the behavioral social sciences, including decision making, psychology, cognitive science, neuroscience, organizational and group behavior’ (OECD 2017, p. 3).
It could be argued that ultimately all kinds of public policies rely on coercion. Arguably, taxes will affect behavior by modifying opportunity costs only if tax collection is actually enforced, eventually through coercive interventions. More generally, changes in relative prices are meaningful only if property rights are enforced. Compliance to a system of property rights–at least in modern societies–is likely to require the existence of a state authority credibly threatening the use of coercion otherwise. However, BPPs do not seem to rely on coercion, at least in its strongest meaning.
Thaler and Sunstein’s (2009) initial characterization of nudges was relatively restrictive and was essentially referring to two kinds of devices: choice architectures and default rules. A constitutive feature of nudges was then that they were supposed to work by exploiting cognitive biases. Subsequent writings by Sunstein and others have, however, adopted a broader definition according to which nudges are interventions that ‘steer people in particular directions but also allow them to go their own way’ (Sunstein 2016b, p. 20). As Sunstein explicitly indicates, the broad definition of nudges also encompasses boosts as discussed by Grüne-Yanoff and Hertwig (2016). It should be noted that the OECD report Behavioural Insights and Public Policy distinguishes nudges from boosts (OECD 2017, pp. 48–49).
The OECD report Behavioral Insights and Public Policy (OECD 2017) present case studies in the following areas: consumer protection, education, energy, environment, financial products, health and safety, labor market, public service delivery, tax, and telecommunications.
The usual classification of welfare theories can be applied here: preference-based accounts, mental state accounts (i.e. hedonism), and objective list accounts.
Setting the default rule for organ donations in case of accidental deaths such as this leads to an increase in the donation rate seems to be an instance of a non-prudential means-directed BPP. Thaler and Sunstein’s (2009) example of 401(k) plans is thought to be an obvious instance of prudential means-directed BPP (but see footnote 27 below). For reasons developed below, it is harder to find in the literature policies that are explicitly presented as ends-directed. But as noted by Scoccia (2019), whether a BPP is ends- or means–directed is person-dependent, i.e. the very same policy may be means-directed when it targets an individual who endorses the underlying values that are taken as granted by the policy-maker but ends-oriented if it is also addressed to another individual who–at least at first sight–does not give a significant weight to these values.
Obviously, a given BPP can both have a paternalistic component and be aimed at mitigating externality problems. The case of vaccination discussed in the text is a relevant example.
There are exceptions of course, especially among libertarians. See White (2011, Chap. 4) who uses a Kantian framework to argue for dissent from the received view.
See Dworkin (2010) for a survey.
Conly (2017) notes that ‘positive’ paternalistic policies which do not rely on coercion but on economic incentives, such as instituting admission–free Sundays to, do not generally arouse strong opposition. In spite of the fact that these policies also attempt to change people’s all-things-considered preferences, the coercive element which infringes on the individual’s negative liberty is the one that is regarded as problematical.
This definition of choice autonomy is similar to what Schmidt and Engelen (2020, p. 4) call ‘volitional autonomy’, ‘the ideal that one’s actions should reflect the preferences, desires or ends are truly one’s own’. As these authors indicate, many accounts of autonomy focus on this dimension of autonomy, e.g. Frankfurt’s (1971) account in terms of second-order desires. My definition, however, adds a feature regarding the fact that choice autonomy is the fact of being able to match one’s intentional states with one’s action at each moment in time. Choice autonomy is also superficially similar to the concept of ‘autocracy’ discussed by Engelen and Nys (2020). More on this below.
See OECD (2017, pp. 92–93). For instance, the use of large envelopes has been found to generate a tenfold increase in the rate of enrolment compared to a control group in an experiment conducted by the city of Philadelphia, U.S. The method has not been generalized, however, as it was found too expensive.
See Thaler and Shefrin (1981) for a canonic model of self-control problems. Thaler and Shefrin’s, like most subsequent game-theoretic models of self-control problems, assume that the individual is torn between two sets of preferences, a doer’s short-term preferences and a planner’s long-term preferences. Interpreted literally, that would imply that the individual’s actual choice matches the doer’s attitudes (provided that we interpret preferences as a form of intentional attitudes, not the most common reading in economics). However, I suggest that in such models the doer’s is essentially a metaphor that captures the individual’s impulsive intakes, rather than an authentic person forming intentional attitudes.
Engelen and Nys’s (2020) concept of autocracy as well as my concept of choice autonomy seem to have to rely on the problematic assumption that persons do have the kind of ‘inner’ preferences or desires discussed and criticized by Infante et al. (2016) and Sugden (2018). More generally, the whole conceptual distinction between means and ends can be met with the objection that there is no way to identify hypothetical authentic or ultimate ends, or even that such ends do not exist. The criticism could even be extended to the idea that persons have a well-identified conception of the good. As far as I can tell, if accepted, this criticism could actually put most prevailing accounts of autonomy in jeopardy as they rely one way or another on the premise that individuals do have (or should be able to adopt) such authentic ends. Infante et al.’s and Sugden’s argument seems to be particularly strong and decisive in the context of the normative behavioral economics literature that (most of the time tacitly) assume that individuals have rational preferences that fail to materialize in choices. In the same way, as I shall explain below, the distinction between means and ends should be taken with caution, for the same reason. However, if the argument were to be carried further and to disqualify all plausible notions of autonomous choices and persons, it would probably show too much. In particular, it should still make sense to say that persons can have conceptions of the good (not necessarily fully comprehensive doctrines in Rawls’s sense though) that account for their choices, even if imperfectly.
For a discussion of libertarian paternalism using the Kantian concept of consent, see White (2011, pp. 180–194). White relates the normative relevance of consent to a libertarian account of the right and emphasizes the importance of actual consent. These are two features which differ from my own account developed here.
Though this is not explicit in Parfit’s formulation, I am adding this precision to make it clear that following from the idea that value autonomy cannot be traded off the consent principle expresses a categorical requirement.
This claim of course clashes with defenses of paternalism, including strong forms, such as the one developed recently by Conly (2014, 2017). Conly makes it clear that, according to her, autonomy and (negative) liberty are only valuable as means to achieve valuable outcomes. It would take more than one paper to discuss this obvious point of disagreement between our respective accounts. What can be said here is that if one endorses Conly’s full-blown consequentialism, then the very issue stated at the beginning of this paper loses its meaning: the overarching criterion to evaluate a BPP is its efficiency, and the fulfillment of the democratic requirement becomes–at best–merely instrumental.
For instance, the utilitarian aggregation rule cannot be used if the utilities to be added up are ordinal and/or cannot be interpersonally compared.
Hence, it seems to me that the social choice perspective can acknowledge and answer Sugden’s (2011) criticism of the ‘view from nowhere’ approach that is constitutive of both standard and behavioral welfare economics.
Not rejecting the underlying collective choice rule is, however, only a necessary, but not a sufficient condition for consenting to a BPP. A person may have other sufficient reasons to withhold consent than the fact that she rejects the principles or values encapsulated in the collective choice rule. One of these reasons can be for instance that one denies the legitimacy of the political authorities which implement the policy. My view is thus closely related to Estlund’s (2009) account of democratic authority which builds on a dual conception of moral authority and legitimacy. An important difference, however, is that according to Estlund (hypothetical) consent is only relevant for ascertaining moral authority, not legitimacy. My consent principle is wider and covers also issues of legitimacy, though I do not need to commit to any particular account of legitimacy here.
Note that we know this is possible because I have assumed from the outset that there were no conflicting claims between individuals, i.e. if I judge a state x to be better than a state y, nobody judges y to be better than x.
Indeed, as Hausman argues, this is probably this very account of well-being that most nudge proponents such as Thaler and Sunstein (2009) endorse, or at least should endorse.
An instance of non-prudential justification of a BPP is the claim that nudges or (more convincingly) boosts can help to enhance individuals’ choice autonomy. This claim is repeatedly made by Sunstein (2016) and can also be found in the OECD report Behavioral Insights and Public Policy.
Of course, the previous section indicates that unless individuals have purely prudential conceptions of the good, means-directed BPPs cannot be purely prudential and fully paternalistic.
We can mention again the 401(k) plans example. The motivation for the implementation of this nudge is grounded on a theory of prudence that implicitly displays a relatively low intertemporal discount rate–at least lower than the rate many persons reveal to have through their choices. The issue is then whether these persons actually have (or would find justified) a lower discount rate, or if their choices indeed reveal their ‘true’ discount rate. This is difficult to answer empirically, and therefore it is impossible to get rid of the suspicion that such a BPP is actually ends-directed. This is important, given the claim made by Sunstein and behavioral economists that behaviorally informed paternalism must be only means-directed. See for instance Bernheim (2016).
As an anonymous referee has pointed out, public deliberation is also not without carrying its own pathologies in a democratic context (e.g. (Chambers 2004); (Kogelmann 2021)). I do not have the space to develop this point further, but it is obviously an important one for further considerations of the democratic legitimacy of behavioral public policies.
It might be argued that Western democracies are increasingly technocratic in the sense that while collective ends are still somehow determined by democratic mechanisms, the choice of the means to achieve them is now fully delegated to experts and independent bodies with no democratic mandate. There is no doubt that many proponents of the use of behavioral insights endorse this ‘technocratic turn’ of democracy. Whether it is acceptable on democratic terms is a complicated issue; for a critical view, see Friedman (2020). Anyway, the point is that the technocratic postulate of the rigid separation between means and ends is debatable, especially in the case of BPPs.
References
Bernheim, B., and Douglas. 2016. The good, the bad, and the ugly: A unified approach to behavioral welfare economics. Journal of Benefit-Cost Analysis 7 (1): 12–68.
Bovens, Luc. 2009. The ethics of nudge. In Preference change. Approaches from philosophy, economics and psychology, eds. T. Grüne-Yanoff, and S. O. Hansson, 207–219. Springer.
Bruns, Hendrik, Elena Kantorowicz-Reznichenko, Katharina Klement, Marijane Luistro Jonsson, and Bilel Rahali. 2018. Can nudges be transparent and yet effective? Journal of Economic Psychology 65 (April): 41–59.
Chambers, Simone. 2004. Behind closed doors: Publicity, secrecy, and the quality of deliberation. Journal of Political Philosophy 12 (4): 389–410.
Conly, S. 2014. Against autonomy: justifying coercive paternalism, Cambridge: Cambridge University Press.
Conly, S. 2017. Paternalism, coercion and the unimportance of (some) liberties, Behavioral Public Policy 1(2): 207–218.
Dworkin, Gerald. 1972. Paternalism. The Monist 56 (1): 64–84.
Dworkin, Gerald. 2010. Paternalism. In The Stanford encyclopedia of philosophy, ed. by N. Edward, and Zalta, Summer 2010. http://plato.stanford.edu/archives/sum2010/entries/paternalism/.
Elster, Jon. 2000. Ulysses unbound: Studies in rationality, precommitment, and constraints. Cambridge: Cambridge University Press.
Engelen, Bart, and Thomas Nys. 2020. Nudging and autonomy: Analyzing and alleviating the worries. Review of Philosophy and Psychology 11 (1): 137–156.
Enoch, David. 2017. Hypothetical consent and the value of autonomy. Ethics 128 (1): 6–36.
Estlund, David M. 2009. Democratic authority: A philosophical framework. Princeton, NJ: Princeton University Press.
Felsen, Gidon, Noah Castelo, and Peter B. Reiner. 2013. Decisional enhancement and autonomy: Public attitudes towards overt and covert nudges. Judgment and Decision Making 8 (3): 202–213.
Friedman, Jeffrey. 2020. Power without knowledge: A critique of technocracy. New York: OUP, USA.
Grüne-Yanoff, Till. 2012. Old wine in new casks: Libertarian paternalism still violates liberal principles. Social Choice and Welfare 38 (4): 635–645.
Grüne-Yanoff, Till. 2018. Boosts vs. Nudges from a welfarist perspective. Revue d’Economie Politique 128 (2): 209–224.
Grüne-Yanoff, Till, and Ralph Hertwig. 2016. Nudge versus boost: How coherent are policy and theory? Minds and Machines 26 (1–2): 149–183.
Hausman, Daniel M. 2012. Preferences, value, choice, and welfare. Cambridge: Cambridge University Press.
Hausman, Daniel M., and Brynn Welch. 2010. Debate: To nudge or not to nudge. Journal of Political Philosophy 18 (1): 123–136.
Infante, Gerardo, Guilhem Lecouteux, and Robert Sugden. 2016. Preference purification and the inner rational agent: A critique of the conventional wisdom of behavioural welfare economics. Journal of Economic Methodology 23 (1): 1–25.
Kogelmann, Brian. 2021. Secret government. The pathologies of publicity. Cambridge: Cambridge University Press.
OECD. 2017. Behavioural insights: Lessons from around the world. Paris: OECD Publishing.
Oliver, Adam. 2015. Nudging, shoving, and budging: Behavioural economic-informed policy. Public Administration 93 (3): 700–714.
Parfit, Derek. 2011. On what matters: Volume one. Oxford: Oxford University Press.
Rawls, John. 1980. Kantian constructivism in moral theory. The Journal of Philosophy 77 (9): 515–572.
Rawls, John. 1971. A theory of justice. Cambridge, Mass: Harvard University Press.
Rebonato, Riccardo. 2012. Taking liberties: A critical examination of libertarian paternalism. New York: Palgrave Macmillan.
Reisch, Lucia A., R. Cass, Sunstein, and Wencke Gwozdz. 2017. Viewpoint: Beyond carrots and sticks: Europeans support health nudges. Food Policy 69 (May): 1–10.
Saint-Paul, Gilles. 2011. The tyranny of utility: Behavioral social science and the rise of paternalism. Princeton, NJ: Princeton University Press.
Scanlon, T. M. 1998. What we owe to each other. Cambridge, MA: Harvard University Press.
Schmidt, Andreas T., and Bart Engelen. 2020. The ethics of nudging: An overview. Philosophy Compass 15 (4).
Scoccia, Danny. 2019. Paternalisms and nudges. Economics and Philosophy 35 (1): 79–102.
Sugden, Robert. 2011. The behavioural economist and the social planner: To whom should behavioural welfare economics be addressed? Inquiry: A Journal of Medical Care Organization, Provision and Financing 56 (5): 519–538.
Sugden, Robert. 2018. The community of advantage: A behavioural economist’s defence of the market. New York: Oxford University Press.
Sunstein, Cass. 2012. Storrs lectures: Behavioral economics and paternalism. The Yale Law Journal 122: 1826.
Sunstein, Cass. 2016a. Fifty shades of manipulation. Journal of Marketing Behavior 1 (3–4): 213–44.
Sunstein, Cass. 2016b. The ethics of influence: Government in the age of behavioral science. New York: Cambridge University Press.
Sunstein, Cass, and Richard Thaler. 2003. Libertarian paternalism is not an oxymoron. SSRN Scholarly Paper ID 405940. Rochester, NY: Social Science Research Network. http://papers.ssrn.com/abstract=405940.
Thaler, Richard H., and H. M. Shefrin. 1981. An economic theory of self-control. Journal of Political Economy 89 (2): 392–406.
Thaler, Richard H., and Cass R. Sunstein. 2009. Nudge: Improving decisions about health, wealth, and happiness. Revised & Expanded. Penguin Books.
Tiberius, Valerie. 2015. Prudential value. In The Oxford handbook of value theory, eds. I. Hirose, and J. Olson, 158–174. Oxford: Oxford University Press.
Vugts, Anastasia, Mariëtte Emely Van Den Hoven, De Vet, and Marcel Verweij. 2020. How autonomy is understood in discussions on the ethics of nudging. Behavioural Public Policy 4 (1): 108–23.
White, Mark. 2011. Kantian ethics and economics: Autonomy, dignity, and character. Stanford, CA: Stanford University Press.
Wilkinson, T. M. 2013. Nudging and manipulation. Political Studies 61 (2): 341–355.
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Hédoin, C. Consent and Behavioral Public Policies: A Social Choice Perspective. Res Publica 29, 141–163 (2023). https://doi.org/10.1007/s11158-022-09565-0
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DOI: https://doi.org/10.1007/s11158-022-09565-0