Paternalism at a Distance

Law and Philosophy (2024) 43: 269–302 https://doi.org/10.1007/s10982-023-09487-9  The Author(s) 2024 JONATHAN TURNER PATERNALISM AT A DISTANCE (Accepted 23 September 2023) ABSTRACT. I argue that the distance between state and citizen gives state paternalism a pro tanto advantage over paternalism between individuals. Pace Jonathan Quong, the state neither denies nor diminishes my moral status by acting on a justified negative judgment about my rational or volitional capacities. Nor does its failure to paternalize on the basis of detailed information about individuals constitute a source of disrespect. Rather, the less discriminating nature of general legislation both reduces the risk of social stigmatization and avoids a problematic dynamic with the paternalizee. But paternalistic policies may give us reason to be concerned about superiority or contempt in policy-makers towards the citizens at whom they are directed. Governments must remain ‘faceless’ enough for paternalism to operate at a distance, but they must reassure the governed that the judgment that they can do better for them does not conceal the attitude that they are better than them. I. INTRODUCTION Objections to paternalism often focus on paternalism by the state. Instrumental objections may target the likely effectiveness of the state’s interventions or focus on the reduction in citizens’ autonomy that they involve. Non-instrumental objections, by contrast, may claim that the state lacks standing to make the requisite judgments about a person’s good or to intervene on the basis of those judgments. I make no comment here on the strength of those arguments. In this paper I look at two different objections to paternalism, arising from the work of Jonathan Quong, and argue that their implications for state paternalism are in fact either equivocal or positive. I argue that, provided that those who govern have and demonstrate the right kind of attitudes towards the people they govern, the distance between state and citizen presents instead a pro tanto advantage for state over individual pater- 270 J. TURNER nalism. Although I present my view by contrast with Quong’s, the overall aim – which emerges from Section 4 onwards – is to put the case for a positive way of looking at state paternalism which transcends any particular disputes within the literature. In Section 2, I examine the argument from moral status. I argue that the negative judgments that motivate paternalistic actions do not impugn the paternalizee’s moral status. On Quong’s presentation, the argument from moral status has non-comparative and comparative versions. In its non-comparative form, it claims that paternalism diminishes the paternalizee’s moral status. As against this, I argue in Section 3 that such concerns about moral status are more plausibly regarded as concerns about social status; and that they can, given plausible empirical assumptions, ground a presumption of sorts against paternalistic policies. But they do not show that paternalism is wrong in itself. In its comparative form, the argument claims that a paternalizer usually denies the equal moral status of the paternalizee. In Section 4 I argue that this version is not even relevant to the state because the state is the wrong kind of comparator. Here, our concern should instead be with the contingently held attitudes of policymakers and implementers towards those who are subject to the policies. Acting paternalistically towards a person does not necessarily imply disrespect but may be accompanied by it. In Section 5, I introduce Quong’s second argument against state paternalism, the argument from non-differentiation. Here, the worry is that general paternalistic policies fail adequately to discriminate between people on the basis of their individual characteristics and are disrespectful as a result. On Quong’s view, individual paternalism – where more fine-grained distinctions are possible – is therefore more likely to be justified, all things considered. In response, I argue that there is some reason to think that the state is better placed than are individuals to justify its paternalistic interventions. Non-differentiation is in fact the more respectful approach, and the distance at which the state acts makes an important difference to the nature of its paternalistic interventions. In Section 6, I draw together the principal claims made here, concluding that the advantage for state over individual paternalism requires a delicate balance on the part of the government. Paternalism is not inherently disrespectful and in fact fits better into the distanced relationship between state and citizen than the close per- PATERNALISM AT A DISTANCE 271 sonal relationship between friends, but citizens will be disinclined to view state paternalism in its best light, and thus enable this advantage, unless governments communicate appropriate attitudes towards those whose lives they would seek to improve. II. THE ARGUMENT FROM MORAL STATUS Jonathan Quong claims that ‘paternalism is presumptively wrong because of the way it denies someone’s moral status as a free and equal citizen’.1 It does this, he thinks, because paternalistic action is characteristically motivated by a judgement that B lacks the ‘capacity to effectively advance his or her own interests’.2 The argument comes in two forms. According to the comparative version, setting oneself up as having superior judgment or willpower to another denies that the other has equal moral status. Even where this comparative element is absent, the non-comparative version claims that ‘treating an adult as if he or she (at least temporarily) lacks the ability to rationally pursue his or her own good’ ‘demean[s] or diminish[es]’ his or her moral status.3 The argument from moral status begins with the observation that a paternalizer necessarily makes a negative judgment about the paternalizee’s rational or volitional powers. The ‘core element of paternalism’, according to Quong, is A’s ‘holding a negative judgment about [B’s] capacity to effectively advance his or her own interests’.4 But, as several writers have pointed out, it is hard to see how acting on an epistemically justified judgment about a person’s capacities5 can be wrong simply in virtue of the content of that judgment.6 While a 1 Jonathan Quong, Liberalism Without Perfection (Oxford: Oxford University Press, 2011), 74. Quong, Liberalism Without Perfection, 83. Michael Cholbi has a similar view: ‘Paternalism and Our Rational Powers’, Mind 126, no. 501 (January 2017): 128. 3 Quong, Liberalism Without Perfection, 101 4 Quong, Liberalism Without Perfection, 83. 5 Quong includes a person’s ‘rationality, or willpower, or emotion management’: Liberalism Without Perfection, 83. 6 This point is made in Sarah Conly, Against Autonomy: Justifying Coercive Paternalism (Cambridge: Cambridge University Press, 2012), 40–42; Jason Hanna, In Our Best Interest: A Defense of Paternalism (Oxford: (...truncated)