Paternalistic Justifications for Regulation – “Laws for Thee but not for Me”

“You don’t know what’s for your own good.” That, in essence, sums up the justification underlying a fair amount of command-and-control regulation. Individuals, on their own, are not capable of acting in their own true self-interest. Government, having the benefit of the collective wisdom of the masses, is in a better position to look out for individuals’ self-interest than they are. Or so the argument goes. It’s parens patriae taken to the extreme.

Here’s the rub: that is at the same time 1) a moral argument, and 2) an appeal to authority. First, the moral argument comes indirectly in the form of assumptions about what is an individual’s idealized self-interest. I.e., the statement “[y]ou don’t know what’s for your own good” assumes what the “good” is for that person. Second, the appeal to authority comes in the form of an assertion about the relative advantage of collective knowledge over individual knowledge.

The combination of “moral argument + appeal to authority” should sound familiar. That is because it is, at bottom, the basis for most religious propositions. “You should not do [x] because the Bible says that is sin.”

And this is where, to me, the paternalistic justification for regulation, standing alone, cannot justify the imposition of any given regulation. There is no coherent and objective distinguishing principle separating, e.g., paternalistic regulations about what consumer goods you can purchase and ingest as opposed to, say, paternalistic regulations about who you can sleep with. Both are rooted in the view that the individual may make poor and short-sighted decisions that are not in their long term self-interest, and thus government needs to step in and prevent the individual from making that poor and short-sighted decision. But it is telling that some object to the former, others object to the latter, and the Venn diagram of those two subsets trends non-overlapping. For example, is it not inconsistent to be offended by dietary regulations but not sexual regulations; or, vice versa, is it not inconsistent to be offended by sexual regulations but not dietary regulations? Is one really more invasive than the other? Is one really more protective of the public health than the other?

No. Each simply is more consistent with a particular view of the world, with a particular view of  what constitutes “public health,” with a particular view of what is “good,” and with a particular view of what is in an individual’s self-interest in the long run. Accordingly, the position consistent with one’s particular view is preferred, while the other is rejected.

To be sure, there may be other, police-power type justifications for regulation. All criminal laws, for example, are forms of regulating behavior. However, they have an independent justification apart from raw paternalism. As the old adage goes, “Your right to swing your arms ends just where the other man’s nose begins.”

What this is to say, however, is that the naked assertion of “you don’t know what’s for your own good” as a basis for regulation is, well, baseless. At the very least, we should leave that type of regulation to churches, mosques, synagogues, voluntary neighborhood associations, and the like. It’s not the government’s business dictating to you what is or is not for your own good, when your conception of the good may differ from the government’s (read: the majority’s in a democratic polity), and when your pursuit of that good does not exude negative externalities which would otherwise require policing. And, at the very least, if we are going to extrapolate out about potential externalities, let us do so consistently and impose regulations accordingly. At least that’s “fair.” It cannot be “Laws for Thee but not for Me.”

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