Addressing the Issue of Autonomy in Nudges

Addressing the Issue of Autonomy in Nudges I. On the Topic of Nudges The concept of the nudge, coined by Sunstein and Thaler in their eponymous bestseller Nudge, was a groundbreaking introduction to the application of psychology and behavioral economics insights to social governance. According to its authors, Nudge operates through “libertarian paternalism,” a form of paternalism that retains the libertarian ideals of freedom of choice by nudging, rather than mandating, individuals to make more rational decisions (Thaler & Sunstein, 2008, p. 4). Nudges can be applied in a variety of contexts, including the paradigm cases of Cafeteria, which involves strategic food placement in a cafeteria to promote healthy eating, and Save More Tomorrow, which allows employees to allocate a portion of their future salary to retirement savings (Bovens, 2008). Even the Obama administration has expressed its endorsement of nudging, manifest through initiatives such as the opt-out organ donor policy, in which citizens are nudged to make a decision about their organ donation status during driver’s license registration (Goldstein et al., 2008).

Despite the increasing popularity of nudges, a number of objections have been raised against using them as a widespread template for social policy design. The most deep-rooted of these concerns address the elements of intention and coercion – that nudges have illicit motives and that they involve coercive interference with people’s freedom (Cornell, 2015). To the first point, I will concede that it is impossible to ensure that the motives of legislators are completely unbiased, as measures of outcomes cannot reflect their original intentions. However, there also lacks proof that policymakers harbor more corrupt motives in the construction of nudges versus that of any other policy. Thus, the argument about intention in this scenario would rule out the legitimacy of government altogether, which is a highly improbable outcome and invites a

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discussion that is beyond the extent of this paper. To the second point, my initial response is that existing nudges are designed to align with the “determinate ends” of individuals on decisions that generally lack controversy: the desire to eat healthy (Cafeteria), for example, or the desire to be financially stable (Save More Tomorrow) (Conly, 2012, p. 12; Bovens, 2008). In these situations, nudges provide a framework in which individuals could more effectively exercise their rational power to enhance their personal welfare. However, further dissection of this objection reveals a more intricate argument that hinges on the importance of autonomy. Do policymakers have the right to override personal choice and liberty in order to benefit the individual? The epistemic argument suggests that no one can serve an individual’s welfare better than himself; thus, any government policy that attempts to to influence choice infringes on individual autonomy (Sunstein, 2014). In this paper, I will seek out concerns surrounding the coercive nature of libertarian paternalism and argue that nudging, as a social policy instrument, ultimately does not violate the autonomous free will of individuals.

II. On the Topic of Autonomy The effectiveness of nudges rests on the notion that they affect the means, rather than the ends, of individual choice and thereby do not contradict the ends that individuals seek for themselves (Conly, 2012). One can evoke the Aristotelian argument that the ultimate end constitutes the “good life,” which brings into question the identity of these intermediate ends (Osterfeld, 1994, p. 1). For instance, are ends defined by the immediate pleasure we derive from eating a candy bar or the long-term pleasure we derive from living a healthy lifestyle? It’s tempting to engage in this philosophical debate, but the validity of nudging as a social policy is not threatened by the circumstantial preference of any individual toward one choice or the other.

Indeed, perhaps there are some individuals who, in a rational state of mind, truly prefer the

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immediate utility of the candy bar. However, the majority of the population would choose the latter end; thus, the legitimacy of the nudge is justified under the rationale of maximizing welfare for the greatest number of people. But what about the minority who would still choose the alternative option? Would nudges be in violation of their liberty to pursue their own ends?

Fundamental Objections The above concern is most succinctly delineated in J.S. Mill’s harm principle, which states that “the only purpose for which power can be rightfully exercised over any member of a civilized community, against his will, is to prevent harm to others” (Mill, 1859, p. 18). Mill claims that even if an individual’s actions are generally perceived as harmful, in the event that there are no externalities, the government cannot and should not prohibit him from making that decision for himself. To do so would be to violate the ability of the individual to exercise his autonomous free will. This principle can be applied to the modern society through debates regarding smoking or suicide, in which the individual is intentionally harming himself despite full knowledge of the harmful effects. To Mill’s point, I raise two objections. First, the harm principle itself is rarely ever relevant because no harmful actions come without negative externalities – smoking creates secondhand smoke and suicide reduces the emotional welfare of friends and family. The second and more relevant argument, however, is that nudges fail to violate the harm principle by virtue of the fact that they are not coercive in nature (Sunstein, 2014). I would agree with Mill that the use of force to prohibit people from smoking or eating fatty foods, for instance, would violate autonomy. Unlike mandates, however, nudging itself never eliminates the range of choices that exist pre-nudge. Nudges, then, simply provide an easier and more viable means for individuals to reach their professed ends, without any imposition on whether individuals actually choose those

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ends. Because they are still left with the full spectrum of choice, individuals are free to exercise their rational power even under the paternalistic influence of the nudge.

Moving beyond the harm principle, some critics make a Kantian case for the objectionable nature of nudges. Kant’s second formulation of the Categorical Imperative, applied to the epistemic principle, would claim that to treat an individual as one who is incapable of exhibiting the rational features of a human being is to treat him as a means rather than an end in himself (Kant, 1785; Sunstein, 2014). In other words, the paternalistic nature of the nudge rests on the assumption that individuals require government intervention in instances of irrationality, and it is this very assumption (which precedes the coercion argument) that violates human autonomy. I concede that the purpose of the nudge is to intervene in instances where individuals exhibit moments of irrationality or instability in choice. However, I deny that this intervention reflects an intention to interfere with autonomous rationality; rather, I argue that because nudges recognize the status of individuals as rational decision makers, they attempt to create an environment in which these individuals are able to exercise their rationality to the highest degree. A number of behavioral economists have corroborated the idea that many perfectly rational decision makers often display lapses in perfect rationality, including ignorance, inertia, lack of self-control, representative bias, and overconfidence (Sunstein, 2014; Bovens, 2008). The existence of these “behavioral market failures” doesn’t detract from the status of individuals as autonomous and rational beings, but it does highlight the benefit of using framing and anchoring techniques to aid people in exercising rationality (Sunstein, 2014, p. 20). Daniel Gilbert, a prominent psychologist, demonstrates that human rationality is extremely bounded in instances where people must extrapolate or imagine certain outcomes; in these scenarios, they are much more likely to make decisions that align with their own personal interests when they consult a surrogate than when they

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consult their own imagination (2006). The detrimental effect of these cognitive biases have been proven time and time again, and because they do not accurately reflect the exercise of rational judgment, they cannot be the basis by which nudges are said to violate autonomous decisionmaking.

Up to this point, I have described nudging as the introduction of neutral influence in situations where little deliberation or irrational deliberation takes place (Alemanno & Sibony, 2015). However, the presence of neutrality (or lack thereof) in choice architecture itself remains controversial and begs the question of whether nudges inherit an element of coercion simply from their framing and anchoring effects. Indeed, forcing people to choose is itself coercive by withholding the choice of not choosing (Sunstein, 2015). However, the prevalence of inertia in people’s decision-making processes should not be a valid basis for establishing its legitimacy. It’s helpful to think of the act of not choosing as a type of default that is automatically set to the null: in the example of organ donations, it is setting the default to not donating, and in the example of retirement savings, it is setting the the savings rate to zero. From this vein of thought, it’s reasonable to conclude that choice architecture and framing effects are inevitable in both private and public policy. Too little information can be construed as information framing; too much information can be construed as cognitive overload. Autonomy is defined as the freedom to choose where all choices and alternatives are presented, not where all choices are presented in a completely neutral fashion. Although the latter concept is an idealistic portrayal of a free-market society, it can not realistically be achieved. Thus, the argument that nudges restrain autonomous thinking through biased choice architecture design can be rendered moot.

Extensions to the Fundamental Objections

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Moving beyond the fundamental objections about the violation of autonomy, I will now turn to some more nuanced critiques about the freedom-limiting nature of nudges. The first of these addresses the origin of cognitive irrationalities and suggests that they are not in fact lapses in judgment but, rather, genuine preference changes. Dismissing evidence from behavioral psychologists, this critique focuses on the categorical nature of rationality, claiming that preferences are circumstantial (Bovens, 2008). Thus, nudges don’t necessarily help people achieve their ends because people’s ends change quickly and drastically. An oft-cited example is based on the Aesop fable of the Sour Grapes: I am like the fox and the sour grapes. The fox loses his appetite for the grapes that he cannot reach. Even if he doesn’t want these grapes anymore, he remains the kind of fox who likes juicy summer fruits in general (Bovens, 2008, p. 214).

This parable, however, provides a weak argument for the circumstantial nature of preferences and fails to disprove the existence of cognitive lapses. Although the fox does indeed lose his appetite for the grapes, he does so not because his ends have changed but rather because his means have changed; in other words, he has no way of getting to the grapes. If, on the other hand, there were a ladder allowing him access to the grapes, the logical result would be that he would regain his appetite. Nudges work like ladders: they do not force citizens (the fox) to reach any certain goal (the grapes), but rather create a more efficient and salient method for doing so.

Another common extension of the autonomy argument concerns the transparency of nudges. This objection posits that nudges exploit the psychological mechanisms governing cognitive biases by withholding information about the intention behind the nudge. As Bovens puts it, nudges “typically work better in the dark” (2008, p. 209). He illustrates this behavior through the following example:

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People are prone to add an expensive car radio to their newly bought car. But if the car radio is not available on the day of the purchase and they are offered the very same car radio the very next day, then they would never dream of spending this kind of money on a car radio. Now once you point this out to them, they typically try to self-correct (Bovens, 2008, p. 210).

However, the example provided represents a free market transaction, in which the ends of the seller (to raise more profits) is wholly incongruous with the ends of the consumer (to gain the most welfare at the lowest cost). In the context of a nudge, however, the government aligns its ends with that of its citizens; thus, this example cannot be representative of the anticipated response to nudges. Furthermore, the claim that nudges work best in the dark lacks any evidence; in fact, one can make the counterargument that more transparency induces people to perceive the government as benevolent, encouraging them to more strongly embrace these nudge policies. In the absence of further empirical data to support either viewpoint, it is a futile exercise to ponder the effectiveness of nudges with respect to transparency.

III. Beyond Autonomy Although this paper focuses specifically on the question of autonomy, it’s important to address relevant objections that perhaps stem from a visceral response against nudges. This concern is best construed as a reaction to the paternalistic feature of nudges, whose very existence implies that individuals cannot be expected to make good and rational decisions for themselves (Cornell, 2015). Some may even venture to claim that paternalistic intervention is an attack on the dignity of individuals and that ideal ends achieved through an unideal means is nevertheless an inept template for social policy. However, the objection of paternalism on account of its “expressive content” is more of a provocative rhetorical point than one that should define the limits

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of social policy (Cornell, 2015, p. 1295). Due to the subjective nature of this visceral response, it’s impossible to characterize what aspect of autonomy is being violated, if any, and how this violation affects rationality. I would agree that certain versions of government intervention warrant such a reaction: for example, the use of traffic light signs to rank the quality of foods imposes paternalistic judgment on decisions. It’s important to note, however, that these actions are not objectionable on the basis of the response they elicit but because they attempt to influence the ends rather than the means of individual choice.

IV. Conclusion Despite the comprehensive arguments supporting nudging as a legitimate social policy instrument, there are nevertheless those who believe that “there is something less than fully autonomous about the patterns of decision-making that Nudge taps into” (Bovens, 2008, p. 210).

But what is meant by “full autonomy” anyways? The claims that A. Choice architecture can be devoid of framing and anchoring effects, and B. Individuals exhibit completely rational decision-making abilities at all times have been debunked throughout the course of this paper. Thus, although nudges have the intended effect of influencing people’s choices, they do so by operating on the means rather than the ends without imposing any judgment on the outcome. They preserve the full range of alternatives that exist pre-nudge and simply set the default to an outcome that aligns with individual preferences in the fully rational state. Criticizing the radical nature of the nudge and its deviation from the status quo of social policy, furthermore, is an inconclusive attempt to undermine the autonomypreserving goals of libertarian paternalism. In this paper, I aim to highlight the ways in which nudges recognize and address the libertarian concern with paternalistic coercion. Although I concede that my arguments do not conclude the discussions surrounding the ethics of nudges in

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general, I hope to give some insight into the nuances of why nudges, as a form of social policy, ultimately preserve the rational autonomy of the individuals they serve.

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Works Cited Alemanno, A. & Sibony, A-L. (2015). Nudge and the Law: A European Perspective. Hart Publishing.

Bovens, L. (2008). “The Ethics of Nudge,” in Preference Change: Approaches from Philosophy, Economics and Psychology, Till Grüne-Yanoof and Sven Ove Hansson, eds. Berlin: Springer, 207-220.

Conly, S. (2012). Against Autonomy: Justifying Coercive Paternalism, Cambridge: Cambridge University Press.

Cornell, N. (2015). “A Third Theory of Paternalism.” Mich Law Review, 113: 1295-36.

Gilbert, D. T. (2006). Stumbling on happiness. New York: Knopf Goldstein, D.G., Johnson, E.J., Herrmann, A., Heitmann, M. (2008). “Nudge your customers toward better choices,” Harvard Bus Rev, 86(12), 99-105.

Kant, I. (1785/1998). Groundwork of the Metaphysics of Morals (Cambridge Texts in the History of Philosophy). Gregor, M, ed. New York, NY: Cambridge University Press.

Mill, J.S. (1859). On Liberty. London: John W. Parker and Son. Osterfeld, E. (1994). “Aristotle on the good life and the quality of life,” in Concepts and Measurement of Quality of Life in Healthc Care, Nordenfelt L, ed. Amsterdam: Kluwer, 19-34.

Sunstein, C. (2014). Why Nudge? The Politics of Libertarian Paternalism. Yale University Press.

Sunstein, C. (2015). “Nudging and Choice Architecture: Ethical Considerations,” Yale Journal on Regulation, Forthcoming.

Thaler, R.H., & Sunstein, C.R. (2008). Nudge: Improving decisions about health, wealth, and happiness. New York: Penguin Books.

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