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13-07-2021 | Original Paper

John Stuart Mill, soft paternalist

Author: Ramzi Mabsout

Published in: Social Choice and Welfare | Issue 1/2022

Abstract

According to John Stuart Mill’s (1806–1873) Liberty Principle, when certain social and cognitive conditions are satisfied and as long as no one else is harmed, an individual’s self-regarding thoughts and actions ought to be protected from interference. The Liberty Principle forged the identity of Mill as a liberal and an anti-paternalist. Almost two centuries later, in fact, Mill is a figurehead for attacks by the new paternalists emerging from the behavioral sciences, in particular behavioral economics. The alleged discoveries of predictable errors in decision-making, and the ensuing corrective soft paternalistic policies, appear to clash with his Liberty Principle in so far as they allow interference with self-regrading acts even when no one else is harmed. This paper questions this narrative and posits that Mill saw favorably choice preserving interventions even when a self-regarding act harmed no one but the individual; he did not object to interference with liberty if individuals are deemed mentally incapacitated, if their self-regarding acts harmed others, or if their acts lead to abnegation of their own freedom. Finally, Mill’s Liberty Principle generates tensions with his doctrine of Free Trade and may not be employed without further qualifications in defense of free markets. I conclude by encouraging the soft paternalists to integrate Mill’s original thoughts on liberty in their work since, like them, he sought the best mix of policies that promote freedom and welfare.

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It has even been categorized as an antiliberal socialist tract (Braun 2010).

For Feinberg (1971, p. 110), “[o]ne assumes a risk in a fully voluntary way when one shoulders it while fully informed of the relevant facts and contingencies, with one´s eyes wide open, so to speak, and in the absence of all coercive pressure of compulsion. There must be calmness and deliberateness, no distracting or unsettling emotions, no neurotic compulsion, no misunderstanding. To whatever extent there is compulsion, misinformation, excitement or impetuousness, clouded judgment (as e.g. from alcohol), or immature defective faculties of reasoning, to that extent the choice falls short of perfect voluntariness”.

See statements in Le Grand (2020), Sunstein (2014, p. 63), Thaler (2015, p.325), or Thoma (2019).

Hausman (2018) provides additional nuances.

See the already cited Powers et al (2012) paper but also Donner’s (2009, p. 138) claim that Mill “is committed to a utilitarian and liberal theory of human nature and the good” and Wolff’s (2015, p. 124) contention that “Mill has presented liberty as instrumentally valuable: it is valuable as a way of achieving the greatest possible happiness for society”.

Thaler and Sunstein’s (2008) libertarian paternalism violates other definitions of paternalism. Scoccia (2018) claims paternalism consists in (1) limiting or interfering with a person’s decision-making; (2) interfering without consent or contrary to her preference; and (3) interfering for her own good. According to this definition, Mill’s bridge example (to be discussed below) is not paternalistic because this is what the person would have wanted (not falling in the river) and so condition (2) is not met. Scoccia (2018, p.15) explains: “For interference with someone’s choice to count as paternalism, the paternalist must override or ignore those goals or wishes”. This means that libertarian paternalism is not paternalistic because it violates condition (2) by requiring that targets of interventions be better-off as judged by themselves. Scoccia, like Sugden, also excludes rational persuasion from paternalism so that a warning given to someone about to do something dangerous would not count as paternalistic because it “facilitates rational persuasion” (Scoccia 2018, p. 19). This means that educative nudges or boosts cannot be paternalistic if one approves Scoccia’s definition of paternalism. Sugden (2018, p. 46) finds Thaler and Sunstein’s definition too broad given that it is not constrained by judgement failures and thus “fails to recognize how paternalism in general could ever be thought objectionable”.

For Sugden (2017, 2018), for interventions to be paternalistic, there has to be errors of judgments and since he does not interpret the deviations from the neoclassical model as errors of judgment, paternalistic interventions cannot be justified by the findings of behavioral economics. See also Whitman and Rizzo (2015).

Sunstein (2016) specifically labels some nudges educative in so far as they operate directly and exclusively on system 2. He considers such nudges to be “self-consciously educative” and include recommendations, calorie labels, and warnings for risks associated with certain products such as smoking and borrowing (Sunstein 2017, p. 1, 2018, p. 62).

There is an important literature articulating the interdependence between Utilitarianism and On Liberty. Gray (1989, p. 220) states that “it is in Liberty that Mill’s indirect utilitarian moral theory acquires its richest content”. Riley (1991, p. 32) points out that “the liberty principle is really a component of Mill´s complex principle of utility”. Gray and Smith (1991) argue that Mill has stressed his concern for seeing his work as one piece and was not torn between freedom and utility. Crisp (1997, p. 16) explains that On Liberty should be seen as an application of Mill´s utilitarian doctrine where the Liberty Principle is but one of its secondary ethical principles. Crisp (1997, pp. 174–5) also remarks that while Utilitarianism appears radically inconsistent with On Liberty, and many have considered it irreconcilable, the Liberty Principle is grounded in his act utilitarianism which forms “the largely submerged part of the iceberg of which On Liberty” stands. Other contributions supporting similar interpretations include Brink (1992), Hansson (2015), Riley (2009), Saint-Paul (2011, pp. 36–7), Turner (2014), West (2009), and Wolff (2015).

“It is hardly necessary to say that this doctrine is meant to apply only to human beings in the maturity of their faculties” (On Liberty, p. 14).

He writes that “no person is an entirely isolated being; it is impossible for a person to do anything seriously or permanently hurtful to himself, without mischief reaching at least to his near connections, and often far beyond them” (On Liberty, p. 88).

For example, Mill argues that “as soon as any part of a person´s conduct affects prejudicially the interest of others, society has jurisdiction over it” (On Liberty, p. 83, emphasis added) and that an “individual is not accountable to society for his actions, in so far as these concern the interests of no person but himself … that for such actions as are prejudicial to the interests of others, the individual is accountable” (On Liberty, p. 104, emphasis added).

For Mill, liberty is not just absence of interference but “also an atmosphere of openness to new directions of personal and social growth” (West 2009, p. 23).

Arneson (1980) has argued that Mill has three distinct characterizations of individuality, namely, as unique or idiosyncratic, as excellence in human function (to be contrasted with mediocrity), and authenticity or distinctiveness of character; these refinements shall not concern us here.

Some contemporary psychologists find this assumption highly questionable. See Wilson (2004).

Sunstein (2014, p. 7) criticizes this argument and refers to it as the “Epistemic Argument for the Harm Principle” (see also Conly 2013).

Based on Dworkin’s (2020) conceptual distinctions, one could describe such restrictions as cases of impure paternalism where the group protected is not the same as the target of the intervention. Protecting smokers by interfering with tobacco producers is an example of impure paternalism according to Dworkin.

Mill considers the masses are satisfied with mediocrity in thoughts and actions. What is required to raise them out of mediocrity are “exceptional individuals” which “instead of being deterred, should be encouraged in acting differently from the mass … In this age, the mere example of nonconformity, the mere refusal to bend the knee to custom, is itself a service” (On Liberty p. 74). He concludes that “if a person possesses any tolerable amount of common sense and experience, his own mode of laying his existence is the best, not because it is the best in itself, but because it is his own mode” (On Liberty, p. 75). Thus, rather than emphasize the idea that “left to their own devices, they will typically choose for themselves that course which is best for them” Mill contends that what is important is that they own their course of action. Whether it is really the best course of action is secondary.

Mill states “[n]evertheless, when there is not a certainty, but only a danger of mischief, no one but the person himself can judge of the sufficiency of the motive which may prompt him to incur the risk” (On Liberty, p. 107).

According to Crisp (1997, p. 181), “a customary morality grounded on utilitarianism will not permit societal interference with how people live their own lives, unless they are impinging seriously on the interests of others.” Crisp (1997, p. 199) concludes that while “Mill states the Liberty Principle is absolute, … his own arguments—concerning offence, slavery, and the deprivation of taste—show that he himself allows his utilitarianism to temper its application”.

“Of the two pleasures if there is one to which all or almost all who have experience of both give a decided preference, irrespective of any feeling of moral obligation to prefer it, that is the more desirable pleasure. If one of the two is by those who are completely acquainted with both, placed so far above the other that they prefer it, even though knowing it to be attended with a greater amount of discontent, and would not resign it for any quantity of the other pleasure which their nature is capable of, we are justified in ascribing to the preferred enjoyment a superiority in quality so far outweighing quantity as to render it in comparison of small account” (Utilitarianism, p. 139).

Crisp (1997, pp. 201–2), for example, argues that for Mill, justice is a moral custom that promotes overall utility whereas customary morality concerning the relations between the sexes is harmful and should be removed.

This is the third necessary element for human liberty according to Mill. It is the freedom for a group of individuals to unite and pursue their common interest as long as no harm to others is involved.

To prevent the sale of commodities that could be later used to commit crime Mill recommends the introduction of regulations (register the time and place of purchase, name and address of buyer, quality and quantity sold etc.) that would not constitute “a material impediments to obtaining the article” (On Liberty, p. 108). While this may constitute a (primitive) nudge it is not soft paternalistic.

I am grateful for the editor who pointed out to me the possible congruence of Mill´s views on gambling and actual policy in Great Britain.

Betting shops “were seedy and hidden away, located down side streets with blackedout windows, and at first were not allowed to broadcast sporting events or even to have toilets … The principle of unstimulated demand meant no advertising. Indeed, often casinos were not even allowed to put up a sign outside saying ‘Casino’” (Wolff 2020, p. 51).

The resulting growth in the advertising gambling market at any rate (6 years after the deregulation, Ofcom (2013) reported a seven-fold increase in gambling ads on TV whereas a recent documentary found that gambling logos can appear more than 700 times in a football match; see Davies 2021b) and the expansion of online gambling, led the Minister for Sport, Tourism and Heritage, in late 2020, to request a policy review (Department for Digital, Culture, Media, and Sport 2020). The review request notes that “gambling is a fun leisure activity for many people, with nearly half of adults gambling each month. We respect the freedom of adults to choose how they spend their money and the value of a responsible industry which protects players, provides jobs and pays taxes. But it is essential that we prevent exploitation of vulnerable people and protect individuals, families and communities from the potentially life ruining effects of gambling-related harm”.

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Title: John Stuart Mill, soft paternalist
Author: Ramzi Mabsout
Publication date: 13-07-2021
Publisher: Springer Berlin Heidelberg
Published in: Social Choice and Welfare / Issue 1/2022
Print ISSN: 0176-1714
Electronic ISSN: 1432-217X
DOI: https://doi.org/10.1007/s00355-021-01353-8

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