Paternalism Is Justifiable on Civil Libertarian Grounds

In a footnote in The Limits Of Liberty, Buchanan argues that legitimate law exists to internalize externalities: to minimize harmful external effects, and promote beneficial external effects (i.e. provide public goods).

In technical terms, ‘‘law’’ which involves the elimination of general external diseconomies or the creation of general external economies is the subject of analysis, not ‘‘law’’ which attempts to regulate individual behavior that may be unrelated to the extent of external effects. For example, a law that requires me to vaccinate my dog against rabies clearly qualifies because, in so doing, I am exerting external economies on all others in the community. By contrast, a law that might prevent me from purchasing the services of a prostitute could hardly be brought within the ‘‘publicness’’ description.

This is fairly standard civil libertarian logic. Yes, the state should provide infrastructure, and yes, driving under the influence is a legitimate exercise of state authority because it impinges upon others. But what business is it of the state’s to regulate things like the private consumption of drugs, or pornography, or prostitution?

The rest of that chapter talks about the “publicness” of being a good citizen: law – and punishment for breaking it – exist because otherwise, it’s in everyone’s interest to unilaterally defect, to break the law and impose negative externalities on others. So law, for a civil libertarian, exists to solve social dilemmas.

But: time-inconsistency problems are prisoner’s dilemmas too, if you imagine the two players as one’s present self and one’s future self. If your present self cooperates, you know your future self might still defect, so you have an incentive to defect in the present too, lest your present self lose out on both the short-term and the long-term benefits.

The benefits of, say, refraining or not refraining from drugs. Taking drugs now imposes negative externalities on your future self. Not on another person, granted, but a negative externality all the same, and in exactly the same way.

Most “paternalistic” legislation is aimed precisely at these sorts of time-inconsistency problems, especially when they’re created by the availability of supernormal stimuli. Drugs, pornography, sugar. Beneath almost any popular paternalistic law you’ll find some kind of supernormal stimulus. This suggests that “folk wisdom” indeed sees the parallel between time inconsistency and multi-person social dilemmas, which civil libertarians mostly ignore. (Joseph Heath has made this point with the notion of paternalism as an “extended will”)

Now, this is not necessarily a defense of paternalistic legislation. One might respond in a few ways:

1. Time-inconsistency problems are two-player by construction – present self playing against future self – and there’s no need for legislation in the case of two-player dilemmas since they can be solved by repeated dealings, unlike many-person dilemmas, where the state might have a legitimate role. Your present and future self have a lot of opportunities both to constrain and punish each other. (But what if you model the time-inconsistency problem as your present self against a whole array of future selves?)
2. Time-inconsistency problems should be governed by informal norms, not by legislation. (Ideally yes, but in that respect it’s no different from public goods or negative externalities, which would also ideally be governed by internal motivation rather than external punishment. Civil libertarian logic doesn’t negotiate the boundary between law and norms.)
3. Exposure to the downside is the only way to actually get functional informal norms; i.e. law and norms are substitutes. (This does not generally seem to be the case: more often paternalistic legislation reflects existing norms, and their repeal does not strengthen these norms, but reflects their decay)
4. The costs of any given war on a supernormal stimulus might simply be too costly relative to the benefits. (This is a common and plausible argument against the drug war, but it is a pragmatic argument, not a principled one)
5. The Pandora’s box political economy problem: once you admit the desirability of paternalistic legislation, is there any principled limit to what the state can do in the name of its citizens’ own good? (I tend to agree that civil libertarianism is useful as a bright-line rule – an inside perspective on the legitimacy of state action – quite apart from its ontological validity.)

So, as Joseph Heath and Charles Murray have argued, while there are many good arguments for civil libertarianism, civil libertarians are predominantly drawn from those with the intelligence and self-control to navigate time-inconsistency problems without legal constraints. Whichever way the balance of the argument falls, we should not take lightly the fact that many do rely on such constraints for functional lives – especially since this reliance so closely parallels the case for legislation that civil libertarians do on the whole admit.