Abstract
Toleration is one of the fundamental principles that inform the design of a democratic and liberal society. Unfortunately, its adoption seems inconsistent with the adoption of paternalistically benevolent policies, which represent a valuable mechanism to improve individuals’ well-being. In this paper, I refer to this tension as the dilemma of toleration. The dilemma is not new. It arises when an agent A would like to be tolerant and respectful towards another agent B’s choices but, at the same time, A is altruistically concerned that a particular course of action would harm, or at least not improve, B’s well-being, so A would also like to be helpful and seeks to ensure that B does not pursue such course of action, for B’s sake and even against B’s consent. In the article, I clarify the specific nature of the dilemma and show that several forms of paternalism, including those based on ethics by design and structural nudging, may not be suitable to resolve it. I then argue that one form of paternalism, based on pro-ethical design, can be compatible with toleration and hence with the respect for B’s choices, by operating only at the informational and not at the structural level of a choice architecture. This provides a successful resolution of the dilemma, showing that tolerant paternalism is not an oxymoron but a viable approach to the design of a democratic and liberal society.
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Notes
I have dealt with it in (Floridi 2015). The two articles form a diptych, but they do not presuppose knowledge of each other.
In terms of justice, both papers endorse a Kantian–Rawlsian position, in terms of respect for others’ freedom, autonomy, and dignity and hence fairness and equal opportunity for all members of society. In the other paper on the paradox of toleration I have argued that toleration can ground justice.
I used the word “dilemma” here to refer to a situation in which a difficult choice has to be made between two or more un/desirable alternatives (cf. the Samaritan’s dilemma). I am not using it in the more specific sense in which the alternatives are logically related and their mutual interaction may lead to unacceptable or less acceptable results (cf. the Prisoner’s dilemma).
For a similar analysis in the context of public health see Cohen (2013): “Libertarian paternalism’s notion of ‘nudging’ refers to steering individual decision making so as to make choosers better off without breaching their free choice. If successful, this may offer an ideal synthesis between the duty to respect patient autonomy and that of beneficence, which at times favors paternalistic influence”, p. 3.
I am grateful to one of the anonymous reviewers for pointing out this scholarly perspective. As the reviewer argues, and I agree, Locke's Letter and the Treatises are forms of anti-paternalism (anti-patriarchalism), see Peter Laslett’s Introduction to Filmer (1949) p. 20 and p. 34. I also agree that Locke's theory of social justice and how the latter interacts with his ideal of toleration, are problematic issues see for example Euchner (1969), Dunn (1979), von Leyden (1982), and Leyden in Locke (2002).
I have reviewed the literature on toleration in (Floridi 2015). For a valuable review of our understanding of paternalism see Dworkin (2010). Although the format of Dworkin’s definition is different, its conceptual content overlaps with the one provided here and any difference is philosophically negligible in this context.
I avoid making things more complex by omitting any propositional attitude modalities, such as B’s intending to φ-ing, for this would add nothing to the analysis but only muddle it.
The assumption is that A and B are different. When A and B are the same agent there is no dilemma and other problems arise, e.g. self-indulgence, which are beyond the scope of this article.
By “is informed” I mean, throughout the article, “holds the truth” that, or about, p, not “receives the message” that or about p.
In this article I refer to B’s choice instead of B’s freedom, B’s autonomy, and B’s liberty to do something because such a more-finely grained analysis is unnecessary here. The reader interested in my position on this distinction may wish to see Floridi (2013b).
Renard (2012), p. 92.
Note that, in (ii), “not improving” is used to refer to both “decreasing” and “failing to increase” well-being, especially in terms of welfare, interests, good, and values.
This is weaker than if one were to specify “only because”. The weaker formulation seems preferable because the presence of further motivations in A’s ψ-ing do not make A’s ψ-ing any less paternalistic, if it is paternalistic in the first place. In our example, the fact that Alice forbids Bob from smoking in her house because she is also concerned about her own health as a passive smoker does not make her action any less paternalistic, if it is paternalistic, but only paternalistic and, say, self-interested. The advantage of a weaker reading is that, of course, the reader who disagrees may simply reinforce the definition by adding “only”.
As pointed out by one of the reviewers, A’s ethical assessment does not change in the two different situations: what really changes is the assessment of the special circumstances in which the ethical evaluation applies (where A has to grant or deny the practical consequences of the ethical evaluation). In both cases, A judges smoking negatively but sometimes—because of special circumstances - that assessment does not apply to its practical consequences (i.e., the fact of not smoking) but it still applies with regard to its normative dimension (i.e., to consider smoking negatively).
In Floridi (2013a) I discuss them as features of a society’s ethical infrastructure.
Unsurprisingly, the debate does not focus on the ethical and political issue of toleration. For a review of some main ethical issues related to nudging in health case see Blumenthal-Barby and Burroughs (2012). Cohen (2013) assess positively the merits of nudging in health care, with further support from Brooks (2013) and Saghai (2013). Their broad view is that nudging can be made compatible with respect for patients’ informed consent. Huang and Baum (2012), Bell et al. (2013), and Sagoff (2013) are much more critical. For a strong defence of paternalism in public health see Verweij and van den Hoven (2012).
I am aware that in some countries, e.g. Italy and (I am told) Australia, they are not, where they may be conceived more as invisible threats or even sources of revenue. This is not the point under discussion here, but, if pressed, I would argue that this is a mistake in choice architecture, hence the italicized “should” in the text.
There is a distinction here between information about harm—e.g. smoking causes cancer—and information about harm that is backed by a threat—e.g. a ticket.
The expression is introduced by Thaler and Sunstein (2008), but in their work it also covers what I have defined here as structural nudging, and this is problematic from the point of view of toleration and respect for freedom, as I argued above. Menard (2010) evaluates libertarian paternalism from an ethical point of view.
I owe this clarification to an enlightening conversation with Massimo Durante during a graduate seminar at the Faculty of Law of the University of Turin in which I presented an earlier version of this article.
For earlier evidence in the US see Spital (1995).
In the course of a discussion of this paper a critic argued that this is not “a posteriori” but “post hoc”. Since “a posteriori” may simply mean “epistemically post hoc” (as opposed to, for example, “causally post hoc), I remain unconvinced, for it seems to me that what is a stake here is both an epistemic state and a chronological order in its change. However, this is a subtle point and the reader should feel free to replace “a posteriori” with the more inclusive and generic “post hoc” if this seems preferable.
When Bob holds the question but the wrong answer then this is not a second kind of ignorance but rather a case of misinformation and it is not in question here.
I am grateful to Stephen Clarke for having called my attention to this important point. I intend to deal with the tension between mandate choice and informed consent in a separate paper because this is an issue too significant and rich in consequences to be treated in this context.
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Acknowledgments
I discussed several versions of this article on many occasions and I am deeply indebted for their feedback to many colleagues and members of the audiences. In particular, I wish to thank Andrew A. Adams, Pompeu Casanovas, Stephen Clarke, Ralph Schroeder and above all Massimo Durante and Ugo Pagallo, for their insightful comments and the opportunities they kindly provided to discuss the ideas presented in this article. The following meetings were especially useful for discussing and improving the final version: an invited talk at The Ethical and Legal Aspects of Digital Security Special Workshop on Digital Security and Data Protection (Paris, 29 November 2013); a presentation discussed during a Master Class Seminar at the Oxford Internet Institute (Oxford, 10 June 2014); an invited talk at the University of Turin, Faculty of Law, Ph.D. program (Turin, 26–27 June 2014); and a keynote at the Asian Privacy Scholars Network, 4th International Conference, Meiji University (Tokyo, 10–11 July 2014). Three anonymous reviewers offered remarkably detailed, long and insightful comments on a previous draft, and this version is much better thanks to them. I am very grateful for their time and scholarship. David Sutcliffe carefully copyedited and commented on the last draft of this paper, improving it substantially.
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Floridi, L. Tolerant Paternalism: Pro-ethical Design as a Resolution of the Dilemma of Toleration. Sci Eng Ethics 22, 1669–1688 (2016). https://doi.org/10.1007/s11948-015-9733-2
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DOI: https://doi.org/10.1007/s11948-015-9733-2