By Jamie Kelly – Vassar College
At one level, the question at the heart of Sarah Conly’s article requires us to settle whether liberty is intrinsically (as opposed to merely instrumentally) valuable. That is because the question “why are some liberties unimportant?” forces us to confront the question of whether any liberties are important in a way that is separable from the good consequences they enable. Ethicists and political philosophers will recognize this as part of a deep and perhaps intractable debate between utilitarians and deontologists about the existence of non-consequentialist values. Central to that debate is a concern for individual rights and the worry that utilitarians (and consequentialists more generally) are unable to really understand the nature and importance of rights. Conly’s skepticism about the importance of (some) liberties, thus derives from her adoption of a broadly welfarist standard for evaluating paternalism and coercion. I don’t think my response here is the proper venue for settling that debate, so I will instead advance two proposals that might help welfarists answer Conly’s challenge, and also indicate why it is so hard to separate these issues from broader debates about utilitarianism and deontology.
My first proposal concerns the role of punishment in Conly’s account. In order for an intervention to count as coercive, I take it that it must involve the infliction of harm on at least some of those who do not comply, and the threat of such harm against many more. In order to understand why some liberties are more important than others, we need to recognize that that foreclosing some of our options requires that the state intervene in order to impose punitive harms on those who insist on choosing those options. For this reason Conly’s cost-benefit analysis must take into consideration not only the paternalistic benefits of a given policy, but also the punitive harms necessitated by its coercive enforcement.
Here we begin to see why political liberties are more important than other kinds of liberty: being able to vote is more important than being able to eat transfats, because the costs of the state punishing those who demand the vote is so much higher than the costs of the state punishing those who demand highly processed pastries. Crushing political dissent via death or imprisonment is much worse than eliminating transfat consumption via taxation or fines, because of the kinds and extent of harms that must be meted out by the state as punishment.
My second proposal stems from Conly’s endorsement of a form of paternalism that incorporates a subjective view of welfare. Following thinkers like Sunstein and Thaler, Conly claims that the “paternalist’s goal is not to substitute his own judgment for your own, but to help you to do what you yourself most want to do” (p.5). While this may indeed be the paternalist’s goal, the actual practice of paternalism via public policy rarely admits of this kind of personalization of interventions to the welfare needs of individuals. Instead, paternalistic interventions make generalizations about the characteristics of individuals, their circumstances, and their goals and attempt to deploy policies that maximize the welfare of the majority of people. As a result, Conly’s cost-benefit analysis seems to miss the effect of paternalism on people with atypical welfare needs.
Seat-belt laws negatively affect a tiny number of people who find themselves stuck in a car that is currently sinking, and laws requiring the posting of calorie-counts may negatively affect those with certain eating disorders. In these cases the downsides to atypical individuals seem to be outweighed by the overwhelming benefits of these interventions. The same cannot be said, however, of paternalism in the political realm because having political power is so important to individuals with atypical welfare needs. This can help us to see why political liberties are generally more important than other kinds of liberty: they protect minority groups in ways that are difficult to do in any other way.
It should be obvious, however, why some will be dissatisfied by the proposals sketched above: factoring-in the harms of punishment and protecting marginalized groups might make for a more compelling cost-benefit analysis, but many will object that they miss a more fundamental point. Deontologists will insist that the harms wrought by the intentional action of the state are intrinsically worse than those effected by our own foolishness, and that political liberties must be guaranteed not just to promote welfare but to protect the rights of individuals. As a result, we see reproduced here a familiar gambit: utilitarians can precisify their calculations in ways that attempt to address our intuitive concerns, but deontologists are likely to remain unsatisfied.