Bloody liberties

"Amazon’s puff for On Freedom says that Sunstein takes a “pathbreaking” approach to the subject. In fact, confounding ability with freedom is an old mistake"

Jamie Whyte
Last year I went jogging in the London neighbourhood I had just moved into. It ended up being a longer run than I had planned because I got lost. According to Cass Sunstein, this happened because I was unfree:

When life is hard to navigate, people are less free. They are unable to get where they want to go. The challenge arises not only when we are looking for literal destinations . . . but also when we are seeking some kind of outcome (good health, a visa, a decent place to live). Obstacles to navigability . . . create a kind of bondage.

All my disappointments are put in a new light. Never mind that jogging irritation. I wanted to get my school’s top mark in maths. But I didn’t because I couldn’t answer more questions correctly than Jacqui Thompson did. Bondage! And who bound me? It was Jacqui Thompson, who enslaved me by studying so hard. I am considering legal action against her.

I now seek the outcome of being very rich but, since I have been unable to find my way to that destination, it seems I have been denied a freedom enjoyed by Richard Branson. That’s unfair. Why should he be free to be rich while I live in bondage? The European Court of Human Rights will be hearing from me.

Amazon’s puff for On Freedom says that Sunstein takes a “pathbreaking” approach to the subject. In fact, confounding ability with freedom is an old mistake. It has been around so long that when Friedrich Hayek wrote The Constitution of Liberty in 1960, he devoted several pages to debunking the already familiar idea.

How could Sunstein, a distinguished professor of law at the University of Chicago, have come to embrace this tired old mistake, with its absurd implications?

Along with the 2017 Nobel prize winner Richard Thaler, Sunstein is the author of the best-selling Nudge, first published in 2009. The book recommends what Sunstein and Thaler sometimes call “libertarian paternalism”, whereby the “choice architecture” people face is designed to encourage them to do the right thing. Critics have doubted that paternalism can ever be libertarian. By conflating freedom with the ability to get what is good for you, Sunstein can reply that, in fact, nudging increases freedom.

Sunstein’s previous, more sensible position was that nudging does not decrease freedom.

Consider a UK policy much admired by Sunstein. Employers are legally obliged to enrol new employees in a pension scheme. Because people have a “status quo bias” which inclines them to go with the default option, this policy increases the number of people who enrol in pension schemes. But it does not reduce their liberty, because they are free to opt out. If the default were no enrolment, and employees needed to opt into a pension scheme, they would be no more free. But fewer people would enrol in pension schemes. Since there must be some default option — enrolling or not enrolling — you might as well apply the choice architecture (the default option) that encourages the right choice.

If you consider only employees, there is indeed no loss of freedom. But what about the employers, whom Sunstein never mentions? They are legally obliged, on threat of financial penalties, to auto-enrol employees in pension schemes. This restricts their liberty. And auto-enrolment is only one of many such obligations Sunstein wants governments to place on business owners. He apparently agrees with the view, now standard across the UK political spectrum, that private businesses should be compelled to act as agents of the government’s social agenda. This may or may not be a good idea; we can’t get into that here. But it isn’t any kind of libertarianism.

Nor is nudging paternalistic. Consider just one obvious problem. Saving for retirement isn’t the only thing that wise people claim the befuddled ordinary man does too little. For example, some say that people would benefit from reading more books. If employers auto-enrolled their employees in book clubs, deducting £10 from their weekly pay for the purpose, inertia would mean few opt out and people would read more.

Exercise too. Exercise is good for you. Many people have a behavioural bias (physical laziness) that prevents them from exercising. Employers should be forced to auto-enrol their employees in gyms. And lingerie. Expensive lingerie is exciting and improves people’s sex lives. Many people have a behavioural bias (embarrassment) that stops them from purchasing the correct amount of lingerie. Five per cent of employees’ pay should be received in the form of lingerie, unless they opt out.

And, and, and . . . I could easily allocate the entirety of anyone’s income in this way. It’s crazy, of course. I will never get the allocation right because I cannot know the preferences and circumstances of the people I am nudging. Choosing always involves trading off. If you save more, you can spend less now. If you eat only healthy food, you must forgo some tasty food. If you spend £500 on a suit, that’s £500 worth of other good stuff you cannot buy.

Governmental “choice architects” might know that it’s good to save or to be healthy, but they cannot know that they are better than living it up today or enjoying the great taste of Coke. Which is what they need to know before they start nudging anyone in any particular direction. It is astonishing that in a book about decision making, the expression “trade-off” makes not a single appearance.

The reason may be that Sunstein believes that his choice architects can know “directly” — that is, without any knowledge of an individual’s preference or circumstances — “what kind of life is best”. How they can know this is not explained, but never mind. Tristram and Chloe and their colleagues at Number 10’s Nudge Unit (it already exists!) will sit around and decide what is the best kind of life. Or perhaps they will receive a memo from the Prime Minister. And then they will force private businesses to provide choice architectures that promote this best life.

The means may be modest and gentle compared to the social engineering of the Soviet Union or Mao’s Cultural Revolution. But the conceit, the ethical arrogance, is just as appalling.

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