Tough Choices

Structured Paternalism and the Landscape of Choice

Sigal R. Ben-Porath

• Publisher: Princeton University Press
• Year: 2010
• Print ISBN: 9780691171289, 9780691146416
• eBook ISBN: 9781400836864
• Topic: Politics & International Relations
• Subtopic: Political Philosophy
• Index: Politics & International Relations

To what extent should government be permitted to intervene in personal choices? In grappling with this question, liberal theory seeks to balance individual liberty with the advancement of collective goals such as equality. Too often, however, society's obligation to provide meaningful opportunities is overshadowed by its commitment to personal freedom. Tough Choices charts a middle course between freedom-oriented anti-interventionism and equality-oriented social welfare, presenting a way to structure choices that equalize opportunities while protecting the freedom of individuals to choose among them.


Drawing on insights from behavioral economics, psychology, and educational theory, Sigal Ben-Porath makes the case for structured paternalism, which is based on the understanding that state intervention is often inevitable, and that therefore theorists and policymakers must focus on the extent to which it can productively be applied, as well as on the forms it should take in different social domains. Ben-Porath explores how structured paternalism can play a role in providing equal opportunities for individual choice in an array of personal and social contexts, including the intimate lives of adults, parent-child relationships, school choice, and intercultural relations.



Tough Choices demonstrates how structured paternalism can inform more egalitarian social policies, ones that acknowledge personal, social, and cultural differences as well as the challenges all individuals may face when they make a choice.

1

TO CHOOSE OR NOT TO CHOOSE?

Choice in Social and Political Thought

For most of Western political history, a majority of individuals had little opportunity to make choices about critical aspects of their lives. Social structure was formal and rigid; one was born into a given social status, with a clear life plan and very limited opportunity to alter its course. Being a good member of one’s family, class, gender, and profession involved abiding by strict rules, following a course set by ancestors, social norms, and other dimensions of destiny. Think of Oliver Twist’s start in life in Charles Dickens’s description:

What an excellent example of the power of dress, young Oliver Twist was! Wrapped in the blanket which had hitherto formed his only covering, he might have been the child of a nobleman or a beggar; it would have been hard for the haughtiest stranger to have assigned him his proper station in society. But now that he was enveloped in the old calico robes which had grown yellow in the same service, he was badged and ticketed, and fell into his place at once—a parish child—the orphan of a workhouse—the humble, half-starved drudge—to be cuffed and buffeted through the world—despised by all, and pitied by none. (p. 4)

Oliver’s prospects for the future become even more apparent when we compare him to the station of Mr. Fitzwilliam Darcy, an other fictional young man (though not an infant) living outside of London in the early nineteenth century. Here is his first appearance in Jane austen’s Pride and Prejudice:

Mr. Darcy soon drew the attention of the room by his fine, tall person, handsome features, noble mien; and the report which was in general circulation within five minutes after his entrance, of his having ten thousand a year. The gentlemen pronounced him to be a fine figure of a man, the ladies declared he was much handsomer than Mr. Bingley, and he was looked at with great admiration for about half the evening, till his manners gave a disgust which turned the tide of his popularity; for he was discovered to be proud, to be above his company, and above being pleased; and not all his large estate in Derbyshire could then save him from having a most forbidding, disagreeable countenance. (p. 7)

In these times, as in many other times and places, an individual’s life was largely determined by external circumstances. Of course, one could decide to be “agreeable” to a greater or lesser extent, inasmuch as such traits are within one’s control. But these traits account for relatively minor variations within an allotted future. Among other things, one’s place of residence, her health, her employment, and other conditions and decisions that create the contours of one’s life were often strictly pre-charted before birth. Parental knowledge and social conventions were considered to be better directives than one’s own judgment. Traditional groups and societies today impose similar limitations on personal choice, preferring social stability, continuity, and personal submission over self-expression, personal authenticity, ingenuity, and choice.

Strong arguments can be made for either sociopolitical system, and my intention here is not to compare them or to make the case for one over the other. Rather I take as my starting point the contemporary democratic, Western sociopolitical structure and ethos that favors choice over destiny. Freedom, exercised through the choice of a life plan, is the tool for overcoming the social vision of inherent inequality or structural stratification, such as the one evident from comparing Oliver Twist with Mr. Darcy. In contemporary democracies, social mobility is embraced as a manifestation of both liberty and equality. A person is not supposed to be confined to her birthplace and to a life plan sketched for her before birth. In addition to the endorsement of a diversity of aims, democratic discourse tends to assume (even if implicitly) a revisability of ends, accepting the possibility that individuals would at some point(s) in their lives rethink their affiliations, goals, values, and visions of the good life. The combination of value pluralism and the revisability of ends sets the foundation for a social structure in which significant space is provided for individual choice. In the American public sphere, and in much of Western philosophy and politics, the notion of choice serves as a panacea to a host of policy challenges, and as a conclusive response to the predetermined life such as that of the Victorian era or of traditional cultures. Choice offers equality of status, which stands in opposition to premodern and aristocratic visions of destined roles. Allowing individuals to develop a life plan, to chart their own paths, to be the authors of their lives, seems to offer an appropriate way to implement the values of equal standing and equal dignity.

But does choice as constructed in contemporary theory and policy truly provide such a comprehensive response? This book is an attempt to critically examine some of the ways in which choice is framed in contemporary theory and policy, and to suggest an alternative framework that balances choice and intervention in order to better achieve the twin goals of equality and freedom. The critical appraisal of choice developed here is to be understood as a constructive effort to enhance the social and political setting of choice, rather than as a traditionalist (or other) attempt to justify a social order that gives little room for choice. I look at the landscape of choice in search of ways to more fully achieve the promise of choice, namely, equal standing and freedom for all members of society regardless of their contingent, or morally arbitrary, characteristics and circumstances.

At first glance, choice does seem like an appropriate, straightforward solution to the shortcomings of the alternative, choice-less vision of the predestined life. The rationale for choice and its realization are enticingly simple and direct: the state should respect individuals by letting them develop and realize their preferences through making choices, thereby expressing and implementing equal dignity and opportunity. Their dignity as individuals and their equal status as citizens are expressed in their responsibility for their decisions and their consequences. The state should not limit choices; it should not intervene in the personal process of preference development and expression. It should keep its proverbial hands, or policies, out of the private business of pursuing what each individual sets as her goals, aspirations, and values.

But another look reveals that the state can grant various forms of freedom to choose, and it can frame and shape them in a variety of ways through social policies. The state’s (or government’s) decision to regulate or avoid regulating a particular realm—like marriage, for example, or mortgage lending—organizes that realm, providing individuals, groups, and institutions with a particular landscape in which to make their choices. Regulating marriage means that only certain people can marry (those who meet the criteria of that state at that time, possibly including race, age, and sexual identity) while keeping others outside that institution. The state can decide to avoid regulating the institution of marriage, and allow anyone to form relationships and families as they see fit. It can still forbid pedophilia, thus maintaining the age limitation on marriage, or it can ban homosexuality, thus maintaining the sexuality barrier to relationship. Any one of these actions by the state, including the deregulation or the decision to not regulate personal-social institutions like marriage, has significant consequences in shaping the landscape of options individuals face in this realm, thus shaping their identity, their preferences, and their actions. Similarly, in realms like banking or mortgage lending, the decision of whether and how the state regulates the conduct of private institutions affects the landscape of choices that both these institutions and the individuals they serve face. The ubiquity of sub-prime and insolvent mortgages is to a large extent the result of a decision to deregulate this field, or to lift previously existing regulations on mortgage lending institutions. The landscape of choice is thus significantly controlled by the state, through its legislative and regulatory systems, and its decisions, including decisions to not regulate or not to take action, form this landscape in which individuals and organizations make their choices. The next questions to grapple with, thus, are: how is individual choice shaped by social policies? how do social policies limit or expand the landscape of individual choice, and how can such limitations and expansions be justified? To begin answering this question, which is at the heart of this book, I consider the role of choice in the liberal-democratic project.

The place of choice in contemporary political philosophy was etched by one of its most ardent proponents, John Stuart Mill. In On Liberty, Mill focuses on the view that liberty is of value as it facilitates individuality, which is to be understood centrally as self-creation, or as the opportunity to make one’s own life. (Mill is also an advocate of the state’s role in the flourishing and well-being of individuals, a point that he does not fully argue, and which will receive attention here.) Contemporary liberalism focuses on his harm principle, or the suggestion that one can make any choice about one’s actions so long as others are not harmed by those choices and actions. The promise of this principle is that of self-authorship, the epitomized consequence of liberty and autonomy. Liberal democracies develop a host of policies on the basis of these values.

Implicit in the democratic ideal is the suggestion that citizens should be self-ruling both as a group and as individuals. This self-rule is often translated into, or equated with, an ability to choose. Respect for individuals is thus expressed by a refrain from intervention in the processes and outcomes of their choices. Decisions made through proper choosing processes are deemed justified and legitimate. Institutions that leave room for choice are perceived as more desirable, a priori, than ones that direct individuals toward a specified outcome. In the American public debate, groups that favor making abortion available frame their position as “pro-choice”; school voucher supporters describe their position as allowing for “school choice”; attempts to reform health care falter time and again over the concern that reform would limit or eliminate individuals’ opportunity to choose among health plans or doctors. The repeated reference to choice expresses an appeal to a shared value, echoing a valorization of the act of choosing. It reverberates in the public sphere in ways that intensify and further centralize the place of choice in the public consciousness. Hence, it is important to clarify the way this value functions in contemporary democracies, to sketch its advantages and limitations, or what it can do for us, and to examine ways in which it can better fulfill its promise.

Autonomy, Freedom, Opportunity

Most theoretical and empirical studies on choice focus on two related conditions for its implementation, namely, autonomy and freedom. The mainstream scholarly and political view on choice sees it as derivative of conditions of freedom and as based on the capabilities of individuals to autonomously express and execute their preferences.

A more elaborate account of the conditions of choice would suggest that for choice to be properly available in a democratic society, three types of conditions need to be satisfied. First, philosophically (and psychologically), autonomy needs to be developed and exercised. The basic properties of autonomy would include the development of an ability to discern and consider options, and the capability to act according to one’s preferences. The second condition of choice is political: freedom must be part of the institutional ethos, allowing for the realization of rights, which in turn have to be engraved in the political structure. A third and less often considered condition for choice is the social one. Socially, opportunity must exist, or the availability of multiple relevant options for the individual to choose from (this third point is historically related to what T. H. Marshal terms “social rights”). To define opportunity in this context of choice-related policies, I consider X to have an opportunity to Y if Y is part of a choice set that is available and accessible to X.²

Absent one of these conditions—autonomy, freedom, and opportunity—choice is hampered, or becomes unavailable as a practice. These three aspects of choice are not independent, but neither can they be described as derivative of each other. For choice to be feasible and accessible, all three components need to be present, and moreover, they must augment each other. In other words, the fulfillment of all three conditions—autonomy, freedom, and opportunity—is necessary for the achievement of choice. The main challenge in conceptualizing the conditions for choice is the balance among the three, as well as the priorities set among them. Most liberal theorists suggest that ethical individualism, or the primacy of the individual over the group (including the state), justifies a prioritizing to autonomy as a manifestation of liberty and an expression of respect; in fact, many regard the legitimacy of the state to be conditioned upon the autonomy of its citizens. Counter to this widely held argument, I suggest that preferring opportunity, and prioritizing it (for the purpose of social policy making) over autonomy, can advance both equal respect to individuals and freedom. Autonomy in its minimal form is sufficiently available to individuals in democratic society; opportunity, on the other hand, is necessary for utilizing many forms of decision making that result from autonomous thinking. Consequently, facilitating opportunity can better implement both freedom and equality in a democratic society, and thus strengthen the legitimacy of the democratic state. As a result, civic equality should be understood as tied not only to autonomy and freedom but also to the conditions for well-being that are satisfied when appropriate opportunities are present in the individual’s landscape of choice.

This book explores the impact of this restructured view of choice on policies, and the role that these policies in turn have on the landscape in which individuals make decisions and choices. In examining justifications for choice-related policies, the following chapters consider the merits of a change of focus from an emphasis on freedom and autonomy to an emphasis on the facilitation of opportunity as part of the conditions of civic equality. While freedom and autonomy are clearly valuable goals, prioritizing them when constructing a theory of choice that could serve as a framework for policy making can obscure some crucial aspects of choice, including those tied to identity, belonging, and affiliation. Prioritizing autonomy creates further risks, such as elitism and discrimination, if autonomy is understood as a condition for acquiring the policy’s benefits. It can also undermine diversity by failing to appreciate those who do not espouse autonomy as a value. Logically speaking, autonomy is not a necessary condition for opportunity. While autonomy is commonly understood as a desirable personal trait or skill, opportunity is a condition offered through institutional structure and policy decisions. Such policies can assume the existence of autonomy or aspire to establish it, but they are not required to do either (and as I suggest later on, it is sometimes better if they do not). Therefore, the current discussion focuses on the expansion of opportunities that choice policies can provide when properly constructed, and considers autonomy as well as freedom either as background conditions for opportunities or as potential results, but not as preconditions or ultimate aims.

What difference does priority make in endorsing and expressing freedom, autonomy, and opportunity? The order of priority among these sometimes competing, sometimes complementing, values is expressed through policies that support the facilitation and protection of autonomy or the provision of opportunities according to perceived needs and specified circumstances. A policy that prioritizes autonomy would generally take one of two possible forms. First, it could be based on the assumption that individuals are already autonomous, and thus focus on nonintervention and liberty. Alternatively, it could express a perfectionist view that aspires to facilitate or develop autonomy in individuals. In this case, it would be more interventionist and would perceive of freedom as a positive value rather than as a state of nonintervention.

A policy that prioritizes opportunity would be based on a more robust responsibility of society toward the individual and on an active attempt to achieve civic equality, understood to include well-being. The suggestion that the state and society have an obligation to provide opportunities is an expansion of, rather than a substitution for, the state’s obligation to support freedom and the facilitation of autonomy. Focusing on choice, with its normative and practical dimensions, requires greater emphasis on the state’s responsibility to provide equal standing, choice sets, and opportunities to choose for all members.

These ideals are facilitated and pursued through the regulation of opportunities and choices, or, metaphorically, through cultivating a fruitful landscape of choice. At the center of the current investigation are policies and state-sanctioned regulations of choice; however, a fuller understanding of the conditions of choice would require an examination of the ways choices are made by individuals. Because many instances of choice boil down to the individual decision maker, the personal process of choosing merits a closer look. I therefore look beyond policy making and regulation, and consider cognitive, cultural, and intimate factors that affect the choices individuals make.

The two domains making up the landscape of choice—the political and the personal—converge in the realm of education, where individuals learn the skills and attitudes necessary for informed choice, and where policies that reflect society’s priorities among the conditions of choice are negotiated and expressed. In the following chapters, I look at those instances of choice in which the tension between personal makeup and regulation is most significant; these cases seem to me to be most revealing when considering the proper balance between regulation and freedom, autonomy and equality, individuality and affiliation. Looking at decisions in which parenthood, culture, or religious belief are at stake can reveal the complex landscape of choice with its theoretical, personal, and policy dimensions. Moreover, these areas of choice require the most attention to individual differences. Individuals face choices in many other areas of their lives—which insurance policy to choose, for example, which car to buy, or which candidate or party to vote for. Some of these decisions will bear important consequences for their lives and the lives of others. However, decisions of this type do not require policy makers to devote as much attention to individual identities. They require less information about personal background, preferences, and connection. The tension between regulation and freedom in these cases is thus not as pronounced as in the cases of choosing how to educate one’s children, or whether to leave an abusive relationship. These latter cases can thus tell us more about how personal desires and individual well-being are affected by social policies, and how social policies should be responsive to these personal differences, through being cognizant of their impact on the landscape of choice.

Motivation, Intervention, Regulation

Individual differences are most pronounced in circumstances of choice through variations in motivation. The reasons we have for choosing one option over another are broadly referred to as motivation, with the understanding that reasons can be influenced and shaped by external forces. The discussion of paternalism in the next chapter considers ways in which regulatory procedures, or forms of intervention, can shape individual preferences and thus motivation for action. Motivation is often not a proper target for regulatory policies, because directly affecting individuals’ motivation...

Table of contents

• Cover Page
• Title Page
• Copyright Page
• Dedication Page
• Contents
• Acknowledgments
• 1: To Choose or Not to Choose?
• 2: Why Paternalism Is Good for You
• 3: The Regulation of Intimacy
• 4: Paternalism toward Children
• 5: Exit with Caution: On Culture and Choice
• 6: School Choice as a Bounded Ideal
• Conclusion: Structured Paternalism and the Landscape of Choice
• Notes
• Index