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1 George Mason School of Law Contracts I Paternalism III F.H. Buckley [email protected]

1 George Mason School of Law Contracts I Paternalism III F.H. Buckley [email protected]

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George Mason School of Law

Contracts I

Paternalism III

F.H. Buckley

[email protected]

Next day

Fraud

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Does Akrasia argue for paternalism?

The akratic might wish for laws that address their weakness of will.

Can you think of examples?

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Does Akrasia argue for paternalism?

The akratic might wish for laws that address their weakness of will.

Can you think of examples? Restrictions on drugs and alcohol Tax laws that favor savings Tax laws that favor health plans

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The Counter-arguments1. Bad Faith

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The Counter-arguments2. The state’s informational problem

The State might easily get it wrong How do we know the subject’s deep

preferences?

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The Counter-arguments2. The state’s informational problem

The State might easily get it wrong The paternalist’s biases

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The Counter-arguments2. The state’s informational problem

The State might easily get it wrong A reversal of preferences does not imply

akrasia.

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The Counter-arguments2. The state’s informational problem

The State might easily get it wrong: Is addiction per se bad? Might it ever

make sense ex ante to become an addict?

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Gary Becker: Rational and irrational addiction

Utility

0 Time

Gary Becker, Accounting for Tastes (1996)

Preferences for commodities over time

Addiction: the more you consume,The more you want

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Gary Becker: Rational and irrational addiction

Utility

0 A

B

Time

Gary Becker, Accounting for Tastes (1996)

classical music

Over time the preferencefor classical music increases—but this is a benign addiction

Subject suffers from “withdrawal”if music taken away from him

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Gary Becker: Rational and irrational addiction

Utility

0 A

B

CTime

classical music

coffee

Unlike classical music, there comes a time when the subject would like to stop drinking coffee. Though he finds he cannot do so, his ex ante decision to start drinking coffee is still rational

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Gary Becker: Rational and irrational addiction

Utility

0A

D

B

CTime

classical music

coffee

hard drugs

Ex ante, the decision to start taking hard drugs is irrational

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The Counter-arguments

Can the state distinguish between rational and irrational addiction?

Just how would you categorize the taste for the following: Tobacco Ice cream Lotteries

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The Counter-arguments3. Self-help

If we might be weak-willed, can we address the problem without the help of legal barriers? Social sanctions Self-binding

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The Counter-arguments Self-binding as a response to akrasia

Jon Elster, Ulysses and the Sirens (1984)

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Examples of self-binding

Marriage

Home purchases

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The Counter-arguments4. The value of autonomy

Even if autonomy is merely a means, things can matter as means. The abstract value of freedom

Autonomy strengthens self-control

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Paternalism and Perfectionism

Paternalism: Interfere with personal choices to make subject better off

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Paternalism and Perfectionism

Paternalism: Interfere with personal choices to make subject better off

Perfectionism: Interfere with personal choices to promote a moral goal

Note how these might overlap

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PerfectionismPaternalism

Impugning Individual Choice

The Paternalist seeks to make the subject better off, while the Perfectionist would vindicate a moral goal.

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PerfectionismPaternalism

Impugning Individual Choice

These overlap when making a person better off vindicates a moral goal

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PerfectionismPaternalism

Impugning Individual Choice

And that will happen when the subject would not choose well for himself because his preferences are immoral.

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Impugning Individual ChoiceTwo kinds of paternalism

Soft Paternalism overrules personal choices in order to satisfy subject’s deepest preferences, without advancing a moral goal E.g. Morally neutral judgment biases

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Impugning Individual ChoiceTwo kinds of paternalism

Soft Paternalism overrules personal choices in order to satisfy subject’s deepest preferences, without advancing a moral goal E.g. Morally neutral judgment biases

Hard Paternalism overrules personal choices when the subject’s deepest preferences are immoral and “he doesn’t know what’s good for him”

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PerfectionismSoft Paternalism(neutral preferences)

Impugning Individual Choice:Varieties of Paternalism

Hard Paternalism(immoral preferences)

Varieties of Perfectionism

The Social Perfectionist does not seek to make the subject better off, but only those he might influence And thus is not a paternalist

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SocialPerfectionism

Soft Paternalism

Varieties of Perfectionism

Private Perfectionism(Hard Paternalism)

The private perfectionist is a paternalist, but not the social perfectionist

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George Mason School of Law

Contracts I

Duress

F.H. Buckley

[email protected]