The introduction to Harvard lawprof and public intellectual, Cass Sunstein’s new book, On Freedom, opens with a question and non-responsive response:
Does freedom of choice promote human well-being? Many people think so.
The problem is that this putative question isn’t a question at all, but an assumption framed as a question, which serves as the lead in to his thesis that people struggle with navigating the “right” choices, and thus his solution, that “choice architecture,” unavoidable no matter what, should serve to nudge people toward the choices that best promote human well-being while allowing them the freedom to ignore the nudges and do as they please.
But note the leap over the huge chasm at the outset, that purpose of freedom of choice is to promote human well-being. In reviewing the book, David was able to get beyond that and consider the “nudge” aspect in lieu of compelled choices. After all, if smoking is bad for you, then doing everything possible to make smoking, and smokers, miserable is merely a nudge, while you can still smoke, provided you do it outdoors and have enough wealth to sustain the habit.
Unlike David, I couldn’t get past the initial assumption, that well-being is the point of freedom. There are a great many things I do, and you likely do as well, that we know to be bad for us, but we like it and do it anyway. Or it’s bad for us but good for someone we love, so we do it anyway. Or it’s bad for us but good for society, so we do it anyway. The point is that our own well-being may be a primary directive in our choices, but it may not. In fact, it may very well play no significant role in our choices.
It would seem obvious that Sunstein would shrug at my challenge to his assumption and reply, “Well, that’s why it’s only nudges and not compulsion, so you can reject them for good reason or no reason.” Except that’s a facile reply, because most of our choices are a product of inertia, taking the path of least resistance, unless they’re really important choices. And then we’re victims of the nudges, great and small, that our betters tell us are good for us and promote our well-being.
First, who are you, whether government, academic, scientist or do-gooder, to decide what promotes my well-being? So you tell me kale is good for me, but my well-being is more about dying happy than living miserable, and until they can make a great tasting kale sundae, I reject your view of what promotes my well-being.
Second, having lived through a great many iterations of “what’s good for you,” I’ve read articles in JAMA that say I would drink wine, not drink wine, drink one glass of wine, drink all the wine I want and never let wine touch my lips, all for my health. Whatever answer is in vogue at the moment is the “right” answer, and you build your nudges around it. I may not know better, but neither do you. No matter how great your expertise, there is often someone even greater down the road who will authoritatively determine that you were completely wrong.
But even if we take a very expansive view of well-being, beyond health or longevity, does well-being not also cover quality of life? Having a 93-year-old father, who informed me a while back that he’s already lived beyond his expiration date, the value of enjoyment of life to any person is exceptionally important. Was that included in Sunstein’s “well-being,” for if so, how could any government bureaucrat, no matter how well-intended, possibly know what makes any individual’s life more pleasant?
And then there are the conflicts, when your desire to climb a tree conflicts with their concern that you don’t fall and break your head. How do you navigate between those choice to decide which deserves that “nudge”? And what is the cost to be paid to disregard the nudge? When the question at hand isn’t life-threatening or life-enhancing, but just the ordinary enjoyment of an ordinary activity that an ordinary person might want to do, does the government really have any business nudging us in any direction?
Much as I appreciate the fact that Sunstein prefers the nudge to the shove, or more likely the headlock forcing our snouts into a steaming pile of kale, he recognizes that navigability requires a direction, for without it we sail in circles or crash on the rocky shoals of fun. And so we’re left with a universal assumption of what purpose freedom serves in order to guide those nudges on the right course.
But that’s not freedom. The option isn’t between a nudge for our own good and no freedom at all. The nudge presupposes that we make our choices for the purpose of promoting “human well-being,” but even if that’s a generally acceptable notion (which I don’t believe to be accurate), there is no universal agreement as to what best serves that cause. Nor should there be.
What we will end up with is a life decided by someone else’s value of well-being, and we will muddle along with it most of the time because it’s an easier path than fighting the nudges at every turn. Sure, we may reject the nudges on big things, the ones that truly matter to us and we’re willing to fight for them, but the vast majority of choices are small, banal and insignificant, and so we’ll just go with the nudge.
Is freedom of choice hard? All choices are hard and we will often make poor choices that lead to consequences we would have avoided had we either given it more thought or thought more deeply. And so we will suffer the unfortunate consequences of our free choice, but at least they won’t be the miserable consequences of someone else’s choice for us.
Much as I appreciate Sunstein giving us the ability to opt out of the nudge rather than act because we’re left with no choice, I prefer freedom to make whatever choice I want for whatever reason I want, or no reason, without regard to the assumption that my foremost value is human well-being. Now pass the hot fudge sundae and leave me alone while I climb that tree.
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SHG,
As you imply, Sunstein should have asked:
If individual freedom of choice does not promote human well-being writ large should we nevertheless honor individual freedom of choice as a foundational principle?
My answer would be “yes.” While I don’t believe in “natural rights,” I am no utilitarian either.
Thanks to you and David for these interesting and informative posts about a “public intellectual’s” thoughts.
All the best.
RGK
Had Sunstein asked that question, he wouldn’t have had a book to write. At best it would have been a “short take” blog post.
David did a great job with the review, being far more generous than I would, which is why he undertook the task (which he completed as soon as he was able to escape captivity at the hands of a svelte Canadian woman).
Thanks for reading, Judge. And you may not believe in natural rights, but they believe in you. 🙂
David,
What was it Bentham said about natural rights? Nonsense On Stilts!
Moreover, your beloved Locke was an Englishman, and not a German, you shitlord.*
All the best.
RGK
* For myself, and being a good Germain, I love the state of nature in the raw. Tooth and claw says it all!
Whether you’re being herded with the eye or with the tooth, you’re going to market all the same. That’s what’s considered a “good outcome” by those doing the herding.
Sunstein seems to be of the view that if people aren’t herded, they will just stumble about and bump into walls. He doesn’t think much of people.
I think that’s untrue. His observations about people making the “wrong” decisions are based on data showing that they do. Take as an example the retirement plan opt in/opt out problem discussed in Nudge (don’t know if it’s an issue here).
More generally, I think your criticism of Sunstein is off because it obviates the idea that choice architecture exists no matter what. Any way a decision is structured (by a government, store, restaurant, whatever) will involve architecture and thus create incentives to behave in x or y way. Given that, shouldn’t it be designed in a way that promotes more aggregate well-being?
Your first point merely shares Sunstein’s belief in there being right and wrong choices. If you believe so, then you believe so. Whether you would still believe so if someone with whom you are complete disagreement made the choices for you is another story, but since believers never believe they won’t wield control because they righteous, it never factors into their analysis.
As to your second point, that choice architecture exists no matter what, there’s a huge chasm between commercial puffery and a govt tax on cigarettes. They aren’t comparable, both because one “nudge” is Draconian and regressive and the other nudge is well-recognized to be merely puffery.
Worse still, once the nudge becomes accepted as the proper means to push people toward choices Benevolent Big Brother decides is best for you, the nudges will get stronger, more forceful, until they’re no longer nudges but strangleholds. If it’s accepted as the best choice, only a fool wouldn’t comply, and who needs to be forced more than a noncompliant fool?
No, my first point shares the belief that people make choices and then regret them – not that there are Right and Wrong choices (ie – choices always right and always wrong). If a person I disagree with a lot designs a nudge I can opt out.
Many nudges are in fact not about choosing for people but having people actively THINK about the choices. For example, in Mexico City they banned restaurants from putting salt shakers on tables by default because most ppl saw salt and put it on food by reflex, now studies show that people try it and put salt on food when it needs it, not automatically. Nudges like this I think are defensible in that they push people towards actually thinking about what they want.
Secondly, a tax is by definition NOT a nudge. In fact, I think that the issue with nudges is that for all the buzz they aren’t really applicable in most scenarios. They ARE mostly “commercial puffery.”
And well, on your last point, I think it comes down to believing whether or not government should interfere at all. The slippery-slope argument doesn’t really do it for me because it could be made about any gov policy. I think better than arguing about generally whether nudges are choice enhancing or limiting is best to look at the specific proposal and decide on what are the trade-offs in the nudge in question and decide. I realize this blawg is about principles, I just don’t think they get you very far in actually looking at the value of nudges and their impact/lack there of on freedom of choice.
A “ban” is a nudge? A “tax is by definition NOT (your CAPS) a nudge”? And slippery slope doesn’t cut it for you because it could be made any any gov policy, which I assume you mean like the 44,000 regulatory crimes now in existence? We really aren’t talking the same language.
You are ignoring the best argument against nudges, which is his point about who will be doing the nudging. I would think that at this moment in history liberals/progressives/everyone would finally be able to realize that they wont always be the ones sitting at the controls. With our current nudger in chief, the only approved nudges will be the ones convincing people to stay at Trump properties.
And yes, a tax is a nudge, saying it is NOT doesn’t change the fact that it is the governments favorite nudge and the one that is/will be used the most frequently, because it is so easy to do.
Also, that salt example is terrible. So now I have to eat bland food because I am too polite or hasty to wait for the waiter to come back so I can badger him for basic condiments? I might let that one slide, but try it with the ketchup and you will have an armed revolt on your hands.
I define my personal well-being as the freedom to make increasingly destructive personal choices that end with penury and ultimately, my annihilation. I would love to hear a definition of “aggregate well-being” that doesn’t end with a boot on my neck preventing me from douching mysefl over as much as I like.
What a relief it is, then, that the powers who will be decided which choices are “right” or “wrong” won’t be people, but government, and that there is no precedent for them making wrong choices.
The data shows that it is people saying they would rather x over y but do y. Go back to the retirement fund example. The nudge there helped people save more money for retirement without losing spending money at all (simply by signing up to a retirement fund that their employer contributed to). Seems like that is something people want. Not some nefarious thing that gvt is pushing.
Plus it seems to me that you don’t actually understand Sunstein’s point. Nudge involves people still being able to do whatever they want. It’s not about what the govt decides. That’s why he bends over backwards so much to fit his theory w/in something that would appeal to libertarians (at least those that recognize that it is possible for you to regret something). So if govt decides to push you to work out more, save more, sleep more or whatever – things its interested in you doing (and maybe you are to but you don’t) – and you choose not to, that’s great. The nudge after all is not that powerful as to prevent you from doing something.
Not to step on Dave’s toes, but there is no data behind every decision, and if left to “people saying,” we would all be eating Big Macs. Your example, the retirement fund, is not only a poor one, but a bit too facile (who doesn’t want more money rather than less), but even then it fails. Retirement fund isn’t a gift, but a trade-off of current income for future income. It’s value to a 59-year-old is very different than a 21-year-old. What’s good for one may be bad for the other.
And then there’s the salt ban. Ask any chef how food tastes without salt, but the govt says so, and many will assume if there’s no salt shaker on the table, there’s none to be had. Or inertia will kick in. So be healthy and eat flavorless food pretty much sums up my dystopian future. And is there data to prove people prefer flavorless food? I don’t think so.
The “data shows” my ass. We’re up to our eyeballs in nudges already. It has nothing to do with data but school marms and scolds who want to tell everyone how to live.
I can’t express enough how “but you can still do whatever you choose” fails to offer any reassurance, and in fact blatantly ignores the history of government using various pressure tactics to suppress the disfavored exercise of rights using exactly that rationale. You can still vote, you just need to pay a poll tax / pass a literacy test first. You can still own a gun, you just have to take a course, get three character references, show proof you own a safe, etc. You can still keep chickens in your backyard, you just need to have a property at least 500m on a side, submit an environmental impact study, etc. And if at any point you make the slightest misstep in any of these cases, we will destroy you. But we’re not stopping you from doing what you want. We wouldn’t do that.
Of all tyrannies, a tyranny sincerely exercised for the good of its victims may be the most oppressive. It would be better to live under robber barons than under omnipotent moral busybodies. The robber baron’s cruelty may sometimes sleep, his cupidity may at some point be satiated; but those who torment us for our own good will torment us without end for they do so with the approval of their own conscience. They may be more likely to go to Heaven yet at the same time likelier to make a Hell of earth. This very kindness stings with intolerable insult. To be “cured” against one’s will and cured of states which we may not regard as disease is to be put on a level of those who have not yet reached the age of reason or those who never will; to be classed with infants, imbeciles, and domestic animals.
Lewis, C.S., God in the Dock: Essays on Theology (Making of Modern Theology) (1979)
Fortunately, the moral busybodies are not as yet omnipotent, and given the stubbornness of most of mankind, I think we can be certain they never will be. But to say that people shouldn’t be guided in their choices is to say we should ignore the lessons of history and the lessons of science. Did you have Romaine in your Thanksgiving salad?
Not that I don’t trust you, but you’re going to need to put up a bond in case you turn out to be wrong. And I don’t think e coli warnings really make a strong analogy.
You mean the “lessons of history” like prohibition that created more alcoholics than existed before it went into effect and birthed organized crime in the US? Or perhaps the, still ongoing, war on drugs that has destroyed more lives than it could have ever hoped to save? Or perhaps, maybe, cops in schools for safety so they can use their tazer to wake up sleeping students?
Have you seen what they’re doing in China?
phv, you write, “But to say that people shouldn’t be guided in their choices is to say we should ignore the lessons of history and the lessons of science.” Sadly, I am not a member of the enlightened cadre to which you belong, who by the right of their superior understanding, deserve to, and are morally obligated to, “guide” the less fortunate. However, as was noted long ago:
“If the natural tendencies of mankind are so bad that it is not safe to permit people to be free, how is it that the tendencies of these organizers are always good? Do not the legislators and their appointed agents also belong to the human race? Or do they believe that they themselves are made of a finer clay than the rest of mankind?”
— Frédéric Bastiat, The Law
We are learning beings. We can learn how something is done. If we learn something new, we can change. Knowledge is guidance. To avoid guidance, we must do without knowledge.
In the US, we believe that one purpose of government is to promote the general welfare. How can government do that except by encouraging (or mandating) some choices and discouraging (or forbidding) others?
One purpose. There are others.
Nice unicorn you’re riding. Does it shoot rainbows from its eyes?
I’ve tried to work in the recipes for maple bacon donuts and everything flagels as being examples of the lessons of history, but reverted to my usual pedantic brevity. My usual rule on this blog is to comment rarely, and only once. Repeating an argument rarely makes it stronger.
It would have made a delicious argument.
“The business of philosophers is to make ideas *available,* and *not* to impose them on people.”
— Merlin the Sorcerer explaining the difference between Hitler and Jesus.
I dont like nudges to things tgat only hurt the one doing them. Do what you want to your own body. Want to much salt? Fat?wine? Want to cut your leg off? Go ahead.
Just dont ask the goverment (other taxpayers) to provide you with healthcare for what you did to yourself.