This article is written by Chandrasmita Priyadarshini, studying BA LLB from KIIT School of Law, Bhubaneshwar. This article takes us through the origin and functioning of Libertarian Paternalism along with its existing form in the current society. 

Introduction 

Libertarian paternalism is the view developed by Cass Sunstein and Richard Thaler (2003). Libertarian paternalism is the set of proceedings aimed at overcoming the unavoidable biases and decisional inadequacies of an individual by exploiting them in such a way as to influence his/her decisions towards choices that they themselves would make if they had unlimited time and information in their hands and the analytical abilities of a judicious decision-maker. These weaknesses of will and mind that the libertarian paternalist’s interference is motivated to protect the agent from including the bad effects of procrastination, framing effects, the status quo bias, among others.

“Paternalism” as a term is considered to be derogatory by many. Earlier paternalism has always accentuated the inability of an individual to choose what is instrumentally good either for herself or in terms of the society, or intrinsically good in the light of some idea of what the proper goals a society or an individual should pursue. People think that Libertarian paternalism is where if a choice is made by a person it will affect the choices to be made by another person. However, sometimes an individual makes a choice that he/she thinks will not affect the choices of others, which appears to be paternalistic behavior.

Somewhere there is always enforcement in paternalism. There are people who may prefer some choices for that matter like deciding orders, sequences, etc. to be fixed as a sense of regulation. And when this behavior has no coercion involved this is called libertarian paternalism which is generally accepted by many knowingly or unknowingly.

Evolution of Libertarian Paternalism

Originally, the liberal philosophy of government has ascertained that state involvement in the regulation of personal conduct is only lawful if it serves to preclude harm to citizens. While the present-day strategies followed by the government are commonly acknowledged under the now popular nomenclature of ‘nudge’ they are part of a broader range of libertarian paternalist policy proceedings, which range from fairly traditional advertising campaigns, sophisticated design initiatives that focus on spatial arrangements to administrative techniques that seek to ensure certain forms of optimal behavior. 

Libertarian paternalism is paternalistic to the degree that it tries to ‘influence people’s behavior so as to make their lives longer, healthier, and better’:they ‘argue for self-aware efforts, by institutions in the private sector and also by government, to wind people’s choices in directions that will improve their lives. Libertarian paternalism remains libertarian, yet, to the extent that ‘choices are not plugged, fenced off, or significantly burdened. If people want to smoke cigarettes, eat lots of candy, choose an unfit health care plan, or fail to save for retirement, libertarian paternalists will not compel them to do otherwise. 

Nudges thus support the principles of libertarian paternalism to the extent that they alter people’s behavior in an inevitable way without forbidding any options or significantly changing their economic inducements. At the same time, libertarian paternalism has come forth from a series of intellectual developments, especially with regard to the development of the new academic subject areas of behavioral economics and behavioral psychology. While the conception of libertarian paternalism was popularized first in the USA, later it has been emerging as an ad hoc principle of political practice for several years in the UK. The varied mechanisms of libertarian paternalism now evident in the UK share the aim of defining the contexts in which we make decisions and how to take such decisions.”

Perceiving Libertarian Paternalism as a dose of hard paternalism

Libertarian paternalism is hard paternalism as a paternalist instrument requires that the paternalist actor is driven to act in accordance with a positive epistemic standing that the action will or may improve the welfare of the agent who is the target of his/her action. Here, there is mostly intervention that successively affects human rationality. The libertarian paternalist must be content with this requirement. These acts of such paternalists target a large number of agents. As they are convinced that their action will unquestionably benefit the targeted people. Though this can be rejected by the targeted people if there is no good ground to so, which can help in improving the choices as the libertarian paternalist is not sure whether the choices made will actually benefit or not. Also, not many targets can benefit from the act. 

On the view of paternalism, or hard paternalism, as discussed earlier, the paternalist act needn’t violate the freedom or self-sufficiency of the object of the paternalist act.“Mostly The act of a paternalistic is what he/she believes to be in the best interests of the targeted community. This is what defines hard paternalism in its true sense. However, the action may not be justified to confirm the purpose and interests of the target as they perform for the outcome that they believe will definitely be in the interest of the target which says a lot about hard paternalism. A libertarian paternalist act does incredibly meet this paternalistic state, given the preventive nature of the libertarian paternalist act. Hard paternalism relates more with libertarian paternalism. Though it is an unacceptable form even if they are convinced that the target is incapable to choose, or due to inability to do so, hence, the reason for their conduct.

Criticisms surrounding Libertarian Paternalism

• Libertarian paternalists seem to disregard an impatient wave of the hand most of the justificative concerns like it matters a lot whether a program of interventions is paternalistic or not. 
• Definitely, they do not have a straight jacket formula which they usually quote as an alternative to paternalism. But they fail to address the most appropriate question as to how informed are the targeted people about their choices and how to choose among the possible choices of influencing options and whether they are being paternalistic or not. (Nudge) 
• “Paternalism failed because it was unsuccessful to justify as to these interventions will be reversible or not. So the libertarian paternalism must provide for easily reversible choices which also can be the test for the acceptability of libertarian paternalism. 
• The libertarian paternalists are not quite as libertarian as they would like to be. As their softer version of paternalism may be more agreeable than the ‘hard’ version which is not as liberal in its views.
•  The reason being first, the means employed by the libertarian paternalists to achieve their goals are not transparent, the accountability deficit of the libertarian paternalistic intervention can be particularly well-marked. 
• Second, there lurks behind the surface the assumption that the users of choice architecture will always employ this proficiency for the best sake of the nudged individuals. If human beings are indeed so bad at making choices as the libertarian paternalists claim, applying these shortcomings, even ‘for their own good’, can be dangerous as the more so, the more the nudges that work around our cognitive shortcomings are effective.”
• Libertarian paternalists present themselves as enhancers of free choice, But somewhere lack to sustain such freedom of choice which in most cases is seen to be affected. In some cases, it is seen that this decision to choose might be achieved by forcing the individuals to choose. 
• Mostly in case of decisional irrationality or inadequacies, the target is seen to be affected by the choices which seem best for them which should not be the case.
• Here, Human rationality gets heavily affected. This is usually followed by various interventions regarding the choices for the targets. Also, these choices are irreversible most of the time which leaves the target strained to settle for the choice. The absence of independent choices is the major criticism of all time. 

The rationale behind Libertarian Paternalism 

Libertarian paternalists emphasize that individuals sometimes make inferior choices, that is, they would change if they had complete information, knowledge, unlimited cognitive abilities, and no inadequacy of willpower. Also not always individuals often may be able to make choices that are in their best interests. They believe in steering an individual towards what his/her rational self would prefer can be seen as an example of the informed preferences perspective of utility.

However, this view of utility is usually associated with some sort of program of informed-choice formation, whereby the individual is encouraged, coaxed, or trained to reach her informed or rational preferences. However, Libertarian Paternalism must be stated clearly to the targeted individuals as in they must acknowledge that the choice given to them was what they wanted but they failed to figure that out. There is an inefficient means to justify paternalism which has come under attack from the impressive analytical model that has been built throughout the twentieth century. Libertarian paternalists would probably claim to be firmly at the ‘means’ end of the spectrum.

Whereas some economic liberals feel that the unaltered choices of individuals bring about outcomes that are good for the individual and are good for society. Libertarian paternalists claim that what individuals freely choose is mostly not good for society, or for themselves. “In most cases, people’s preferences are unclear and ill-formed, and their choices are inevitably influenced by default rules, framing effects, and starting points. In these circumstances, a form of paternalism cannot be avoided. 

This assumed uniqueness of rational, informed choices then comes to play a very important role in the libertarian paternalistic program. Libertarian paternalists then guess what an individual really wants or is rooting for and after these, people reach the same rationality and appropriate decision. “Libertarian Paternalism” is as if it is selected with the goal of influencing the choices of affected parties in a way that will make those parties better off. Libertarian paternalists attempt to direct people’s choices in welfare-promoting directions without putting an end to the freedom of choice. It is also possible to show how a libertarian paternalist might choose among the possible options and to evaluate how many choices to offer.”

Conclusion 

To conclude this Libertarian paternalism must be avoided if not furnished with reversible choices, along with rational decision making. Though there are people whose preferences are not well-defined and ill-formed, and their choices will be inevitably influenced by default rules, framing effects, and starting points. But somewhere this is what is most suitable for certain circumstances, in these conditions Libertarian paternalism should not be avoided. Libertarian paternalism is not designed to liberate individuals from their irrational tendencies but to capitalize on irrational tendencies, to move citizens in directions that the paternalistic planner deems best. Most times libertarian paternalism is hard paternalism which has its own set of criticisms. But if we reject this all together then those people in the society who are unaware and incapable to choose for themselves might suffer. 

Though it’s best if soft paternalism is more prevalent but without losing the essence of paternalism, that would give room for reversible choices and will be considered as per the time we live in. As libertarian paternalism is more inclined towards hard paternalism which may not allow reversal of choices, also any consideration for the targeted community. Usually, libertarian paternalism is advocated as a policy tool for government functions. But this must be done to defend people in both public and private fields that their welfare must be a priority and any sort of arbitrary or harmful circumstances must be avoided.

References

• https://link.springer.com/article/10.1007/s13164-015-0248-1#auth-Gerd-Gigerenzer
• https://link.springer.com/article/10.1007/s10603-014-9265-1
• https://www.aeaweb.org/articles?id=10.1257/000282803321947001
• https://dash.harvard.edu/bitstream/handle/1/12876718/LibPaternal.pdf?sequence=1
• https://academic.oup.com/analysis/article/78/1/65/4666423

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