Abstract: Elizabeth Ben-Ishai
The Power of Nudges: The Case of Infant Formula Marketing Bans
In order to promote breastfeeding, some advocates in the U.S. have launched campaigns to ban the common practice of commercial infant formula marketing in hospital maternity wards, a practice they suggest contributes to mothers deciding to formula feed their infants. Initiatives to ban formula marketing have been met with considerable pushback from a range of voices. In this paper, I use the case of these marketing bans as a lens through which to examine Sunstein and Thaler’s theory of “libertarian paternalism,” starting from the claim that the bans can be seen (and are often framed) as a “nudge” to breastfeed. I argue that the case brings to light the failure of libertarian paternalism to attend to the ways in which power relations shape the capacity to act autonomously. While Sunstein and Thaler pay ample attention to cognitive limitations that they see as impeding autonomy, they largely ignore the limitations imposed by asymmetrical power relations. As a result, the theory of “nudge” paternalism does not provide us with the tools to distinguish between interventions that foster autonomy and promote welfare, and those that replicate relations of oppression and domination.
Nudged into a Stronger Future? Income Management and Indigenous peoples
By Dr Shelley Bielefeld
This paper will address the theoretical issues that arise in relation to ‘nudge’ paternalism, developed by Thaler and Sunstein. This form of paternalistic intervention is aligned with the so called ‘new paternalism’ increasingly adopted by the Australian government in the context of social welfare policy. These developments have a particularly significant impact upon Indigenous Australians, as seen in the recent developments in income management. In its contemporary manifestation, compulsory income management was commenced in 2007, allegedly as an interim emergency measure under the Northern Territory Emergency Response (the Intervention). However, there has now been a broader extension of the income management laws and policies, both in 2010 and in 2012. The 2012 extensions were implemented as part of the Stronger Futures legislative package. The extensions mean that the paternalism embodied in income management laws and policies will now continue indefinitely, despite a lack of evidence as to their efficacy. Although these laws and policies now apply to non-Indigenous as well as Indigenous Australians, they still overwhelmingly affect Indigenous peoples. This paper evaluates the impact of these recent forms of paternalism, particularly as they affect the rights of Indigenous peoples to autonomy, self-determination, well-being, and social justice. It highlights that colonial authorities have long sought to construct a parent/child dynamic between the government and Indigenous citizens, and in this sense the phenomenon of paternalism is not genuinely ‘new’, but has a tragic history with continuing consequences. This paper will explore the Eurocentric values that can be embedded within laws and policies that implement nudge paternalism. It will also consider the government’s ethical responsibility to ensure that laws and policies do not adversely affect Indigenous peoples. This ethical responsibility extends beyond having benevolent intentions, and includes attending carefully to any adverse consequences of laws and policies for those who are affected by them. Finally, the paper will explore possible alternatives that could be implemented in order to deal with the problems of economic disadvantage faced by Indigenous welfare recipients in a more culturally appropriate manner.
Margaret Meek Lange
What relational autonomy can tell us about Sunstein and Thaler’s “nudge” paternalism
A “doctrine of paternalism” describes and justifies when the state can direct the choices of individual citizens in the name of their own good. Justification of such a doctrine tends to call on variety of values and considerations. This paper will focus on the value of autonomy, understood broadly as self-governance. Generally speaking, autonomy has two roles to play in shaping a doctrine of paternalism and its justification. First (and this argument is the most familiar from liberal theory) a state’s commitment to respecting the autonomy of its citizens gives it a reason to limit its activity or to withdraw from certain spheres of activity. Second, a commitment to respecting autonomy can serve as a justification for the state’s directing and shaping choice in particular contexts. This second group of arguments rely on making a distinction between choice and autonomy, with autonomy serving as the more important consideration. Finally, once we admit into a doctrine of paternalism the notion of an autonomy-fostering state, we face the related question of what further steps the state can take to support the autonomy of its citizens through activity rather than withdrawal.
This paper takes up these questions in the context of examining and critiquing a recent and influential doctrine of paternalism, Cass Sunstein and Richard Thaler’s nudge paternalism. In Nudge and its follow-up, Simpler, Sunstein and Thaler describe and justify a class of mild state interventions they refer to as “nudges.” In the first section, we will describe nudge paternalism and the types of policies it recommends. We will discuss the body of empirical research Sunstein draws on to justify his claims about human cognition and behavior. We will also consider the justification given for nudge paternalism, which is less well-developed than the empirical sections but is reflected in a number of passages. The justification appeals, roughly speaking, to a conception of autonomy on the one hand and to the welfare of citizens on the other. We will show that, although Sunstein does not offer a developed account of autonomy in these works, such a conception is implicit in his reasoning. Sunstein suggests that individual choices are autonomous when they are instrumentally rational and when the same individual would endorse them after sufficient reflection, experience, and information. Choices that are made with insufficient information and opportunity for feedback, learning, and reflection are not autonomous. Paternalistic policies are justified if they focus on this class of choices. Sunstein thinks that the case for nudges is stronger than the case for more robust policies such as bans, fines, or taxes.
In the second section, we will compare and contrast Sunstein's conception of autonomy to a relational conception of autonomy situated in the feminist literature. We will compare and contrast the autonomy-based reasons for regulation that Sunstein offers with the autonomy-based reasons suggested by this second, relational conception of autonomy. The relational conception overlaps with Sunstein’s in its focus on the vulnerability of individual choosers to internal and external distortions, and its separation of mere choice and truly autonomous action. Both conceptions argue against the pure libertarian imperative to maximize autonomy by maximizing the number of options, and to maximize options by minimizing the power of the state. However, we will show that the relational conception is richer than Sunstein’s, insofar as it looks at the way power relations in society and an individual’s history can render her choices more or less autonomous.
In the final section of the paper, we consider a concrete and policy-oriented example from Nudge, the regulation of retirement plans. We will focus on defined-contribution plans, in which working-age individuals set aside a portion of their paycheck that is then invested. Retirement is funded by the returns from those investments. Our goal in this section is twofold. First, we will compare and contrast the American and Australian contexts. Although in general Australia has already implemented a number of Sunstein’s recommendations for America, this area represents an exception. So-called self-managed super funds are under-regulated, given the vulnerability of individual investors to the kinds of biases and confusion described by Sunstein. Here Sunstein’s suggestions, adapted to the Australian context, would be an improvement. Second, we will consider what additional recommendations in this context are provided by a relational conception of autonomy.
Are social marketing campaigns about weight paternalistic, and does it matter?
Stacy M. Carter1, Miles Little1 and Vikki Entwistle2
1 Centre for Values, Ethics and the Law in Medicine, The University of Sydney
2 Health Services Research Unit, University of Aberdeen
In recent decades, the increasing average bodyweight of populations has stimulated government and non-government action. One prominent response has been the mass media communications incorporated in social marketing campaigns. These campaigns have deliberately broad reach in a range of media. They express authoritative positions, and provide a frame for public health problems. And they seek to change social norms, thus acting indirectly as well as directly on their ‘target’ audiences. Although critiques of these campaigns often focus on how much money they cost or save, or what health consequences they may or may not produce, their most significant normative implications may lie elsewhere: in their implications for citizens’ relationships with themselves and with one another.
The potential paternalism of public health interventions is a common concern. Interventions are traditionally considered paternalistic if they interfere with the recipient’s autonomy or liberty against their will, and if they are undertaken for the recipient’s own purported good. However this entails a traditional conceptualisation of autonomy, emphasising independence and maximisation of negative freedom. It would be difficult to mount an argument that social marketing campaigns constrain citizens’ negative freedom or independence: on traditional definitions, claims they are paternalistic would be equivocal and contestable.
In contrast, relational and recognitional conceptions of autonomy suggest ways in which these campaigns are paternalistic. To make this argument we will draw on writers including Elizabeth Ben-Ishai, Axel Honneth, Joel Anderson and Paul Benson. These writers’ conceptions of autonomy focus our attention on misrecognition of the embodied experience of intended audiences, and the limited and conditional way in which autonomy is ascribed to them. They also problematise the efforts of social marketers to undermine the self-relations central to autonomy competency (self-worth, self-respect and self-esteem), and to amplify this by changing social norms in ways that are likely to undermine some people’s social status as eligible participants in a moral dialogue about issues that affect them. From this perspective, social marketing is clearly paternalistic.
Whether these things matter depends on whether state and non-state actors should be considered responsible for fostering (or at least for not undermining) the relational and recognitional autonomy of citizens, and how such a responsibility should be weighed against other responsibilities. Our conclusion is not that social marketing about weight should stop, but that it can be altered to minimise paternalism, respect the autonomy of citizens, and better respond to public health concerns.
Aging, vulnerabilities and paternalism
University of Tasmania
In richer countries, baby boomers are aging: many are enjoying a large number of post-retirement years as healthy older people—actively engaged in rich social lives and planning so that they may have a high level of control over their later years. At the same time, it is clear that there are many older people who are living longer than their predecessors, with a higher level of dependency on their family members (spouses, children, nieces and nephews) or non-profit or state provided social services due to lack of financial resources, physical frailty or cognitive deterioration. Public policy, institutional practices and family relationships may serve to protect and promote the interests of older people and may also produce objectionably paternalistic impediments to older people’s capacity to age well—infantalising adults and generating pathogenic vulnerabilities.
In this paper I explore the potential for a vulnerabilities approach to assist in, first, identifying what is objectionable about paternalism directed to older people; secondly to show the importance of a relational understanding of autonomy in being able to understand the complexity of the significance of public policy, institutional practices and familial relationships in shaping (older) people’s vulnerabilities and their autonomy. Finally I indicate some of the ways in which aged care policy and institutional practices could be framed so as to avoid inappropriate paternalism.