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Seat Belt Mandates and Paternalism

In: Journal of Moral Philosophy
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Jessica Flanigan University of Richmond, flanigan@richmond.edu

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Seat belt mandates seem like a paradigmatic case of justified paternalism. Even those who generally object to paternalism often concede that seat belt laws are justified. Against this near-consensus in favor of mandates, I argue that seat belt laws are unjust and public officials should not enforce them. The most plausible exceptions to a principle of anti-paternalism do not justify seat belt mandates. Some argue that seat belt mandates are not paternalistic because unbelted riders are not fully autonomous. Others claim that the decision to ride unbelted harms other people. Yet these attempts to defend seat belt mandates on non-paternalistic grounds cannot overcome the case against seat belt mandates. I therefore conclude that even seat belt mandates are unjust. With this comprehensive case against seat belt mandates, I demonstrate the more general difficulties in justifying any form of coercive paternalism.

Abstract

Seat belt mandates seem like a paradigmatic case of justified paternalism. Even those who generally object to paternalism often concede that seat belt laws are justified. Against this near-consensus in favor of mandates, I argue that seat belt laws are unjust and public officials should not enforce them. The most plausible exceptions to a principle of anti-paternalism do not justify seat belt mandates. Some argue that seat belt mandates are not paternalistic because unbelted riders are not fully autonomous. Others claim that the decision to ride unbelted harms other people. Yet these attempts to defend seat belt mandates on non-paternalistic grounds cannot overcome the case against seat belt mandates. I therefore conclude that even seat belt mandates are unjust. With this comprehensive case against seat belt mandates, I demonstrate the more general difficulties in justifying any form of coercive paternalism.

Seat belt mandates seem like a paradigmatic case of justified paternalism. Even those who generally object to paternalism often concede that seat belt laws are justified. Against this near-consensus in favor of mandates, I argue that seat belt laws are unjust and public officials should not enforce them. I begin by sketching the case against seat belt mandates. Seat belt mandates express offensive and inegalitarian judgments about citizens’ capacities to decide for themselves. Mandates unjustifiably subject vulnerable citizens to the discretionary power of the state, violate people’s rights, and may not even promote people’s well-being on balance. Public officials also lack the moral authority to enforce mandates.

Considered in light of all the unjust and unnecessary laws that states currently enforce, this may seem like a small point. Why focus on seat belt mandates, which are comparatively less burdensome and more beneficial to citizens? But it is just because seat belt mandates seem so innocuous that they merit further investigation. If we accept the permissibility of seat belt mandates, as Joel Feinberg once said, “the trick is stopping short once we undertake this path, unless we wish to ban whiskey, cigarettes, and fried foods.” 1 Feinberg’s slippery slope argument is not fallacious. Some people do not want to stop short. 2 The claim that seat belt mandates are justified is frequently mentioned in support of other more controversial, paternalistic policies. 3 My plan is to block this strategy by showing that even seat belt mandates cannot be justified.

Many of the arguments against seat belt mandates are familiar. Proponents of mandates may reply that while it is generally wrong to interfere with someone’s self-regarding, autonomous choices, this presumption can be overcome in exceptional circumstances. These exceptions may include cases where a choice is relatively trivial and the benefits of restricting that choice are substantial, where a choice seriously damages people’s autonomy, or where a person previously precommitted to limit a choice. Even if paternalism were justified in these cases though, these exceptions to a principle of anti-paternalism do not justify seat belt mandates.

I then consider two attempts to reframe seat belt mandates as policies that are not coercive or paternalistic after all. Some argue that unbelted riders are uninformed, lazy, or irrational, so their decision to ride unbelted is not fully autonomous. Others claim that the decision to ride unbelted harms other people either by imposing psychic costs on bystanders who witness accidents or because unbelted riders are more likely to require intensive medical care that is subsidized by other citizens. I show that these attempts to defend seat belt mandates cannot overcome the initial presumptive case against seat belt mandates.

I therefore conclude that even seat belt mandates are unjust. The case against seat belt mandates not only implies that public officials and citizens should rethink their support for these policies; it also highlights the weaknesses of any justification for coercive paternalism.

1 The Case against Seat Belt Mandates

The case against seat belt mandates goes like this:

  1. (1) If a person’s autonomous choice is not harmful to others, then public officials should not paternalistically use force or threats of force to prevent him from making that choice.
  2. (2) Riding unbelted is an autonomous choice that is not harmful to others.
  3. (3) Therefore, public officials should not paternalistically prevent people from riding unbelted. 4

There are reasons to endorse (1) on deontological and consequentialist grounds, and as we will see, challenges to paternalism are raised from within both frameworks as well. Deontologists will argue that people should respect the free and autonomous choices of others. Consequentialists argue that people are generally the experts about their own well-being so public officials should not substitute their judgment in place of others. Or consequentialists may endorse a presumption against paternalism in order to enable more experiments in living. Public choice scholars will point out that even if ordinary people are flawed decision makers, public officials are too, so government isn’t necessarily the solution to bad decision-making. Egalitarians are concerned that paternalism expresses condescending attitudes toward citizens who are entitled to be treated as equals. Paternalistic policies also expand the discretionary power of public officials, which can be a kind of domination that is disproportionately burdensome to marginalized groups. In this section I will explain these arguments in favor of (1) and show that the best reasons against paternalistic public policies are reasons against even seat belt mandates.

The most compelling reason against paternalistic public policies is that people are not generally entitled to interfere with other people’s autonomous self-regarding choices. By making decisions and plans, I recognize the authority of my own autonomous capacities in giving me reasons for how I should live my own life. Seeing that others are making decisions and plans as well, I should acknowledge that their choices have a similar authority to them. I should therefore respect their authority as decision makers in the same way that I make my own decisions to have authority for my life. This broadly Kantian justification for respecting people’s choices establishes a very strong presumption against interference, though it is not absolute. It would be permissible to interfere with someone’s choice to murder because he would forfeit his right against interference by doing something wrong. Yet it would be presumptively impermissible to interfere with self-harming behavior, such as riding unbelted, since each person is generally entitled to make decisions about their own life. Foremost, the value of an autonomous choice commands respect, not promotion. To paraphrase Kant, a person’s autonomy has full worth in itself, and should not be traded off for other values, even to promote more opportunities for autonomous choice in the long run.

A related argument against seat belt mandates is that people have especially strong rights to decide what happens to their own bodies. If we accept that people are entitled to kill themselves, or refuse life-saving medical treatment, base jump, drink to excess, and make other dangerous and deadly choices about their bodies, then the same justifications for bodily rights also support a right to risk one’s life by riding unbelted. 5 These rights needn’t appeal to a Kantian foundation. Philosophers who believe in self-ownership also conceive of seat belt mandates as a prima facie rights violation in this sense. 6

Furthermore, though it is imprudent, others are not wronged if a person rides in a car without wearing a seat belt. No one has a claim against the unbelted rider who endangers only his own life by failing to buckle up. Unbelted riding doesn’t violate anyone’s rights because the unbelted rider waives his rights against being harmed in an accident when he voluntarily foregoes a seat belt. The fact that seat belt mandates are in place also does not in itself render unbelted riding impermissible, since the mere presence of a law is insufficient to generate obligations that did not exist in the first place. So there should be a presumption against coercive mandates because unbelted riding is permissible.

Imagine that someone you knew took your money and threatened you because you refused to exercise. In this case, your acquaintance would act impermissibly because though a sedentary lifestyle is risky, it does not violate anyone’s rights. Even if close acquaintances, dependents, and loved ones were entitled to interfere on behalf of people who make dangerous choices, it would be in virtue of a special relationship that establishes distinctive permissions and obligations between people. But public officials do not stand in these relationships with citizens, so they should not use threats and coercion to prevent risky or self-harming behavior. Though seat belt requirements do not carry prison terms, they are enforced with threats of force and can lead to imprisonment if a person refuses to pay the fee associated with a citation. People who cannot or refuse to pay seat belt citations are then charged court fines, and then they are sent to jail if they do not pay their fines as part of a policy known as ‘pay or stay.’ 7 In one particularly egregious case, police in Illinois jailed a 72-year-old woman with dementia when they discovered she had failed to pay a seat belt citation five years beforehand. 8 Seat belt mandates are coercive because even small penalties like fines involve threats of physical force.

Another reason against paternalistic mandates is that paternalism is unlikely to effectively promote people’s well-being on balance. This claim may strike some consequentialists as surprising, given that seat belt mandates do reduce traffic fatalities by promoting widespread seat belt use. Auto accidents are 45 percent more likely to injure or kill riders who do not wear seat belts. 9 Assuming a linear relationship between mandates and lives saved, every one percent increase in rates of seat belt usage in the United States saves 136 lives per year. 10 Cohen and Einav find that mandatory seat belt laws with primary enforcement, meaning that people can be penalized for unbelted riding even if they did not commit any other traffic offenses, increases usage rates by 22 percent, and that if adopted nationally, primary enforcement seat belt policies would prevent 700–3,000 auto fatalities annually relative to the current set of mandates enforced in the United States. 11

However, consequentialists should not give absolute priority to saving lives because some policies that save lives would be more costly on balance when considered in light of other values. And while almost everyone can agree that safety is a value and that death is bad, people respond to those values differently. As Mill argued, each person is generally more knowledgeable than a public official about how risks weigh against other values in his life. 12 Though highway safety experts are more knowledgeable about the odds of surviving a crash, drivers and passengers are more knowledgeable about how to promote their overall well-being in light of those odds. A person who values his life and safety but also values the comfort and convenience of not wearing a seat belt may judge that, all things considered, it is worth it for him to take the risk of riding unbelted. Seat belt mandates prohibit an individual from acting on his judgment about what will promote his interest by raising the cost of acting against the judgment of safety experts. In this way, seat belt mandates effectively lower the total value of an unbelted rider’s set of options (no seat belt or seat belt) by imposing penalties on his first choice. People who value their lives and safety more than they value the benefits of riding unbelted can buckle up in the absence of a mandate. Yet in the presence of a mandate, those who value comfort and convenience more than buckling up cannot act in accordance with their judgment without penalty. Therefore, it is likely that those who acknowledge the value of buckling up are not burdened by the absence of a mandate as much as those who genuinely would prefer to take the risks for the sake of convenience are burdened by mandates that penalize unbelted riders.

One may reply that people would be objectively better off on balance if they were forced to wear a seat belt, even if they experience a mandate as burdensome. But seat belt mandates also have other bad consequences, aside from making unbelted riders’ options less attractive. Enforcement of seat belt mandates diverts law enforcement away from policing more serious crimes and preventing conduct that is actually wrong. Police enforce seat belt mandates by writing tickets, and while the cost of a ticket may be low, most states add administrative fees, such as court fees and processing charges, that can cost unbelted riders hundreds of dollars. If riders appeal the ticket, some states also charge hundreds in court fees. Seat belt mandates also make people more vulnerable to state interference. Police are permitted to arrest people who violate seat belt laws, even though the violation only carries a small fine. 13 Seat belt mandates give law enforcement a pretext to stop and search people who are suspected of other offenses, where a search would otherwise be unreasonable. 14 They also provide police with opportunities to enforce civil asset forfeiture, where police confiscate people’s property based on very low evidentiary standards and keep the revenue. 15

These hazards associated with seat belt mandates should give pause to anyone who is concerned with the relative costs and benefits of the policy. Furthermore, though unbelted riders may make bad choices when they refuse to wear seat belts, public officials are also vulnerable to biases that cloud their decision-making and can further destabilize the consequentialist case for a mandate. And egalitarians should be especially concerned about seat belt laws because they disproportionately affect economically and socially vulnerable people. Experts disagree about whether seat belt mandates increase racial profiling by police. 16 Mandates are widely perceived as discriminatory by members of minority communities though, and people attribute seat belt stops to racial bias. 17 Seat belt mandates also have a disparate negative impact on minority groups that are less likely to wear seat belts. 18 If a law particularly disadvantages marginalized groups, it ought to be held to higher standards of moral scrutiny.

Racial disparities in seat belt enforcement are especially concerning because interactions with police can escalate, and blacks are more likely to be victims of police brutality than whites. 19 Police killed Marlon Brown when he tried to evade a traffic stop for a seat belt violation. 20 Levar Jones was unarmed when he was shot by a police officer while reaching for his license after a seat belt stop. 21 Police shattered a window and tased Jamal Jones before they cited him for failing to wear a seat belt. 22 David S. Cunningham iii, a 59-year-old judge, was handcuffed, detained, and searched after being stopped for a seat belt citation while leaving a parking lot. 23 These men were all black, and their experiences reflect a more general pattern of racial bias in law enforcement. 24

Seat belt mandates also disproportionately burden poor people, if only because they cannot afford to pay the fees associated with a citation and they are more likely to face jail time or late penalties. This is especially troubling because poor people are already subject to greater domination from public officials and are more vulnerable relative to police, so seat belt mandates compound existing inequalities and patterns of domination. Even philosophers who otherwise defend state paternalism acknowledge that when disparate patterns of enforcement undermine distributive justice, state paternalism is more difficult to justify. 25

Paternalists can defend seat belt mandates without endorsing the excessive fees associated with citations, racially disparate patterns of enforcement, and the potential for police brutality or civil asset forfeiture. Expanding police powers is always perilous though. One of the most consistent lessons of public choice scholarship is that public officials do not necessarily enforce policies in the interest of citizens, even if those policies are ostensibly for citizens’ benefit. State and local governments depend on the revenue from traffic tickets including seat belt citations, and encourage officers to write seat belt citations through quotas. 26 The federal government also encourages states to adopt more aggressive seat belt enforcement policies by offering hundreds of millions of dollars in federal grants to states with primary enforcement of seat belt mandates. 27

Paternalistic public policies also express offensive or insulting views of citizens’ ability to make their own decisions, which should concern egalitarians and non-egalitarians alike. No one wants to be treated like a child, and paternalistic public policies treat citizens the way that parents treat their children. Seana Shiffrin and Jonathan Quong cite the expressive harm of paternalism as reasons to reject it in many cases. 28 On the other hand, Elizabeth Anderson claims that paternalism does not always express offensive views of citizens because, “it is no great insult for a state to pass laws requiring the use of seat belts, so long as the law is democratically passed.” 29 Similarly, Gerald Dworkin maintains that it is not insulting for public officials to paternalistically override a person’s judgment and force him to wear a seat belt just as it is not insulting to correct a person’s error in addition or to advise him to seek treatment if he is sick. 30 But even democratically passed laws can insult particular groups. If a state democratically passed an anti-sodomy law, enforcement of that law would be humiliating and insulting even if it were democratically passed. Dworkin’s examples also overlook the particular insult of coercive enforcement, which empowers public officials to override a person’s judgment as well as his will. Enforcement and penalties carry all the stigma and recrimination associated with legal sanctions because unlike taxes, penalties express the political community’s disapproval and condemnation. It would be humiliating for a teacher to force an unwilling student to correct an addition mistake. It would be degrading for physicians to use threats to compel sick patients to accept treatment. Merely pointing out a person’s error may not be a great insult, but coercing him to comply is. Moreover, coercive policies are especially stigmatizing and insulting if they are more often enforced against vulnerable and marginalized groups in ways that contribute to existing patterns of stigmatization.

Mandates can even be insulting to people who wear seat belts, since the mere threat of overriding a person’s judgment can be insulting by insinuating that public officials have the authority to decide what is best. Seat belt mandates are also offensive because they are hypocritical. Public officials routinely compromise safety for convenience or cost when making transportation decisions such as road maintenance and repair schedules and licensing requirements. In these cases, public officials risk passengers’ and motorists’ lives for the sake of other values. Officials also license people to operate motorcycles, which are much more dangerous than unbelted riding. And yet when it comes to seat belt use public officials claim the risks are unacceptable. Even if unbelted riding were unacceptably risky, in light of all the other transportation-related risks they impose, tolerate, and encourage, public officials lack the standing to criticize unbelted riders for taking undue risks. 31

Taken together, these considerations create a strong presumptive case against seat belt mandates. Even though many people believe that seat belt mandates are an easy case of justified paternalism, a closer look should complicate that intuition. Not only do seat belt mandates violate people’s rights, they are not necessarily the clear consequentialist winner they are made out to be, especially considering that they are disproportionately burdensome to socially and economically disadvantaged populations.

2 The Case for Seat Belt Mandates

The case in favor of paternalistic seat belt laws proceeds by denying that anti-paternalism (1) is an absolute constraint on the conduct of public officials. Even if public officials should generally avoid paternalistically limiting people’s self-regarding choices, paternalists will argue that paternalism can be justified if certain conditions are met. Here are three candidate conditions that may serve as exceptions to (1):

  1. (a) If the reasons in favor of allowing a risky choice are relatively trivial and the benefits of paternalism are substantial, then it is permissible to prohibit that choice.
  2. (b) If a risky choice would significantly damage a person’s autonomous capacities and prohibition would effectively protect people’s capacities, then it is permissible to prohibit that choice.
  3. (c) If prohibiting a risky choice would promote people’s preferences for their lives on balance then it is permissible to prohibit that choice.

I am skeptical that these conditions merit exceptions to a commitment to anti-paternalism, but even if these conditions did justify exceptions to (1) they would not justify seat belt mandates because unbelted riding does not meet these conditions.

Consider the first strategy (a), which begins by pointing out that the reasons on behalf of unbelted riding are trivial. Peter de Marneffe suggests that paternalistic mandates are permissible as long as they do not limit self-sovereignty or objectively important freedoms. 32 Danny Scoccia writes that the choice to not wear a seat belt is insignificant to most drivers, unlike other choices such as veganism or religious practices, which are closely tied to people’s conceptions of the good life. 33 Julian Savulescu also cites seat belt mandates as a “trivial example” of justified coercive paternalism. 34 Elizabeth Anderson agrees when she argues “seat belt laws are fine…because the liberty they limit is trifling.” 35

However, it answers the wrong question to say that riding unbelted is a trivial choice, or that people do not have good reason to ride unbelted. For the sake of argument, grant that the liberty to ride unbelted is trivial and people have good reason to buckle up. People still have good reason to reject paternalistic mandates even if they acknowledge that they have good reason to wear seat belts. Those who do wear seat belts have good reason to reject a costly policy that limits their options but does not benefit them, since they already buckle up. Those who do not wear seat belts have good reason to reject a policy that makes their decision to not wear a seat belt even more risky than it already is. And all citizens have reason to value the liberty to ride without being subjected to the domination, marginalization, surveillance, and the other harms of law enforcement. These are not trivial freedoms, and seat belt mandates impede those liberties as well.

Furthermore, the freedom to ride unbelted is not always a trivial choice. The charge of triviality could be interpreted to mean that riding unbelted is objectively or subjectively trivial. Subjectively, some people do value the freedom to ride unbelted, such as those who think seat belts are annoying and uncomfortable. Libertarians highly value the freedom to ride unbelted even if they choose to wear a seat belt every time. Some may have a conception of the good that requires that they exercise what William Glod calls “moral capacity at each moment,” including when they buckle up. 36 In the absence of mandates, even more people might value riding unbelted because seat belt mandates influence peoples’ attitudes about riding unbelted and the permissibility of mandates. 37 So even if few people do subjectively value riding unbelted, if this preference is an adaptive response to mandates then the absence of a strong subjective preference to ride unbelted cannot itself be used to justify mandates. 38 Alternatively, one may hold that riding unbelted is trivial because it is not objectively important. This argument encounters two challenges. First, one must explain why people who highly value their own comfort and those who endorse libertarian or ‘live for today’ conceptions of the good are objectively mistaken about their values. And if a proponent of paternalism did successfully defend this controversial axiological claim, he would also need to show that perfectionism was justifiable and that public officials could permissibly impose this theory of value on everyone in violation of liberal neutrality. 39

The second proposed exception to an absolute ban on paternalism (b) is that paternalism can be justified for the sake of autonomy. The argument goes like this. Paternalism is generally wrong because it is disrespectful to people’s autonomous capacities. But deadly choices are themselves disrespectful to people’s autonomous capacities because they destroy a person’s autonomy. In these cases, people cannot claim that they have a right, in virtue of their autonomy, to make a choice that would undermine the very autonomy that is the basis of their right. This argument has been deployed by David Velleman against the right to die. 40 And such an argument can also be deployed to justify seat belt mandates, as Michael Cholbi suggests. 41 Douglas Husak also considers this justification for seat belt policies, on the basis of an autonomy-maximizing principle or on the grounds that respect for freedom should not include the freedom to alienate one’s ability to make free choices. 42 Appealing to Rawls’ distinction between basic and non-basic liberties, some philosophers suggest that paternalistic limits on non-basic liberties are permissible in order to promote citizens’ capacities to participate autonomously in a fair society. 43

An autonomy-promoting justification for paternalism cannot straightforwardly justify seat belt mandates because unbelted riding does not intrinsically damage a person’s autonomous capacities. And if an argument that people should be prevented even from risking their autonomous capacities were to justify seat belt mandates, it would also rule out so many other comparable omissions, such as the failure to exercise, prepare healthy foods, visit the doctor, or take cholesterol-lowering medicine. But the threat of forced safety and healthiness would generally impair autonomy more than the threat of dangerous omissions and failures to avoid risk. 44 Mandates threaten autonomy even if it is in ways we cannot see. The mere threat of being stopped may change how drivers and passengers behave, not only by encouraging them to wear their seat belt but potentially by discouraging some motorists from traveling through certain areas where they fear that seat belt enforcement is used as a pretext for racially discriminatory traffic stops. 45 In this way, even if a person is never stopped and never receives a citation, seat belt mandates can limit his autonomy by making him more vulnerable to unwarranted stops and searches.

A third possible exception to anti-paternalism involves cases of precommitment (c). People can permissibly consent to a range of policies that are designed to promote their preferences for their lives on balance by limiting their ability to act on their immediate preferences. For example, someone who struggles with gambling may voluntarily place his name on a gambling addiction registry to prevent himself from going to a casino. Similarly, Christian Coons and Michael Weber ask, if a person previously supported a seat belt mandate, why should respect require deference to his current preference and not his previous considered judgment? 46

One reason to defer to a person’s current preference and not his previously considered judgment is that his circumstances may change in ways that give him new information. Thousands of people sign up for Weight Watchers and gym memberships every January, but it would be wrong to force them to continue to attend after they realize that diets and exercise make them miserable. A pregnant woman may write a birth plan that commits her to refusing pain medication, but when she learns what labor feels like, she might change her mind. In these cases, unlike other long-term commitments, people do not deceive or wrong anyone else when they stray from their original plan, so it is not wrong to abandon a precommitment contract. Whatever the proportion of unbelted riders for whom precommitment strategies would encourage seat belt use, people’s interest in precommitment cannot justify seat belt mandates. Even if an unbelted rider initially decides to commit to wearing a seat belt, it would be wrong to force him to stick to his original choice if he then learns that he actually hates seat belts, perhaps because he finds them inconvenient and uncomfortable.

Seat belt laws also differ from other forms of precommitment, such as gambling registries, because people who place their names on gambling registries consented to be there at some point. Passengers do not opt in to seat belt mandates. We can imagine a system of seat belt enforcement that is similar to other precommitment schemes. Drivers might place a sticker on the bumper of their cars to signal to police that they had committed to wearing a seat belt or paying a fine. One wonders though, how many drivers would request such a sticker. And while anti-paternalists may claim that states can permissibly enforce long-term contracts without offering an opportunity for exit, paternalists should balk at the prospect of a permanent, coercively enforced contract that is inescapable for one contracting party. Even if unbelted riders did recognize their own weakness of will with respect to seat belts and desire to precommit to a seat belt mandate, they should not choose to precommit via the state, which would enforce a one-size-fits-all mandate in all circumstances, but prefer privately enforced precommitment contracts instead. 47

Therefore, even if some exceptions to a general prohibition were justified for trivial or incapacitating choices or for choices that a person previously consented to limit, these exceptions cannot justify seat belt mandates. Even if the inconvenience of wearing a seat belt were relatively trivial compared to the risks, it is not trivial to people whether they are subject to seat belt mandates. And though auto accidents often damage unbelted riders’ autonomous capacities, this threat to autonomy does not clearly outweigh the threat of coercive public policies, which also threaten people’s privacy. Perhaps seat belt enforcement could be justified just as states enforce other long-term contracts, but such a justification would only justify mandates for those who consent to the contracts.

3 Soft Paternalism

One may accept (1) but nevertheless deny that seat belt mandates are unjust on the grounds that (2) is false either because the decision to ride unbelted is not autonomous or because it is harmful to others. I will consider these two strategies in the next two sections. The first strategy for denying (2) is to reframe seat belt mandates as a form of soft paternalism, which justifiably limits choices that are not fully autonomous. The argument for soft paternalism is that just as paternalism toward children is justifiable on the grounds that children are not fully autonomous, so too is paternalism toward adults justifiable with respect to particular choices that are not fully autonomous.

Unbelted riders have been deemed non-autonomous on the grounds that they are irrational, weak-willed, uninformed, and inconsistent. Consider first the claim that unbelted riders are so irrational that public officials should intervene. Failure to wear a seat belt can be explained by several cognitive biases. People are shortsighted; they think they are immune from low-probability events; they suspect that they are above-average drivers; and they also have trouble appreciating the badness of catastrophic harms. 48 People are also reluctant to change course from the status quo even if it would improve their well-being. Resistance to seat belt mandates can also be explained by people’s tendency to preserve one’s options even if those options are of little value—people like to keep doors open even if they will never walk through them. 49

Let us grant that the first set of biases regarding seat belt use are genuinely irrational, in that people are inconsistent in their judgments about the risks of injury and the value of the status quo in ways that cannot be justified by any principle. Even so, they may acknowledge their irrationality and nevertheless resist seat belt mandates out of a rational preference to avoid the possibility of legal penalties and to preserve the option to irrationally refrain from wearing a seat belt. It would be a mistake to characterize the preference to preserve options that are of little value as a bias, since a person can rationally value having options irrespective of the value of those options. This preference may be motivated by rational risk-aversion, for example, if a person values his future and doesn’t know whether those options will come to have value later on.

Those who defend paternalism on the grounds that people acknowledge their own irrationality in some circumstances must also establish that people then rationally choose to limit their opportunities to make irrational choices. But citizens who oppose seat belt mandates may also acknowledge their irrationality yet rationally reject seat belt mandates on the grounds that the mandate forecloses the opportunity to decide irrationally, which they value. Just because a choice is irrational doesn’t mean that people have reason to prevent themselves from making it. To make a much more serious choice, falling in love is often irrational and motivated by inconsistent and imprudent desires. Though some people may take steps to avoid finding themselves in this irrational state, many of us value the chance to make such an irrational decision even when we know it might have disastrous consequences. So it doesn’t follow from the fact that a particular choice is irrational that people have rational reasons to want to avoid it, all things considered.

Unbelted riders are also accused of mere laziness or weakness of will, on the grounds that no one would genuinely prefer to risk death for the sake of slightly more expediency, so riding unbelted must be a failure to act on the judgment that one should. 50 Dworkin writes that he experiences his own failure to wear a seat belt in this way, and not as a preference for convenience over safety. 51 Say that unbelted riders really are weak-willed in this sense. Is weakness of will the kind of volitional failure that calls into question whether a choice is autonomous? Consider other prominent examples of weakness of will. A smoker knows she should quit but buys another pack. A person judges that he should lose weight but he gives into temptation and eats an entire cheesecake. Someone judges that she should follow through with her resolution to go skydiving, but she fails in her resolve at the last minute. In these cases, as in the seat belt case, momentary failure to act in accordance with one’s all-things-considered judgment is nevertheless an autonomous choice. If you paid someone an extraordinary amount of money or provided some other strong incentive to wear a seat belt for a year, quit smoking, lose weight, or jump out of an airplane, she could do it and her decision would be an authentic choice. 52 The effectiveness of seat belt mandates provides further evidence that the decision to ride unbelted is autonomous. When people choose to stop riding unbelted because the government issues penalties, it suggests that they were able to choose to buckle up before the penalties as well. Therefore, even if unbelted riders are weak-willed, they are autonomous; so soft paternalistic mandates are unwarranted.

People also defend seat belt mandates on the grounds that unbelted riders are uninformed. Unbelted riders may not really understand just how bad car accidents are, and some think that seat belts might actually be harmful because they trap people in their cars. 53 Granting that some unbelted riders are ignorant, public officials could simply inform people about the dangers of unbelted riding without issuing citations to unbelted riders. Yet information campaigns do not significantly increase seat belt use, which indicates that unbelted riders are not merely choosing out of ignorance. 54

I have not discussed whether soft paternalism can ever justify intervention, but at least in the case of unbelted riders, their ignorance or irrationality cannot justify mandates. I grant that the unbelted have good reason to buckle up and that they should. But the choice to ride unbelted is a sufficiently autonomous choice, and insofar as unbelted riders’ failures are attributable to ignorance, they should be informed rather than coerced.

4 Harm to Others

Another way to deny (2) is to show that a person’s choice to ride unbelted is harmful to other people. First, in the event of a crash an unbelted rider’s body could become a projectile that injures or kills restrained passengers. Second, bystanders may suffer psychic costs from witnessing a deadly crash. Third, unbelted riders impose higher costs on taxpayers or members of an insurance pool, because they require more medical care. Public officials can permissibly prevent people from wrongfully injuring or imposing costs on innocent bystanders. On these three accounts, unbelted riding wrongfully puts others at risk. These arguments will only succeed however if innocent bystanders have rights against being injured in these ways.

Innocent bystanders certainly have an entitlement not to be hit with projectiles. One study suggests that restrained passengers are at a slightly but significantly increased risk of death in the event of a fatal crash when there is an unrestrained passenger in the car with them. 55 The authors of this study advise that people who are concerned about dying in a car crash should encourage their fellow passengers to buckle up, but this evidence may also provide a justification for seat belt mandates for unbelted riders who travel with other passengers.

On the other hand, even though unbelted riders put belted passengers at an increased risk of death, this risk only constitutes a morally significant harm if restrained passengers do not consent to the slightly higher risk of death when they get in a car with an unrestrained passenger. If passengers do not consent to the risk of traveling with unbelted riders and these risks are unacceptable, then we should also conclude that it is unacceptable to subject passengers to the heightened risks of riding with an inexperienced driver, or traveling at night, or riding in a car with other unsecured potential projectiles. Perhaps if the unbelted posed extreme risks to others, or if passengers (such as children) were incapable of consenting to them, this justification would support seat belt mandates. But riding unbelted should be held to the same standards as the other ways that drivers and passengers subject others to risks. Given that unrestrained passengers only increase restrained passengers’ risk of death in the rare event of a serious crash by 20 percent at most, the potential harm to others of being hit with a projectile body does not merit a costly coercive seat belt mandate. 56 These considerations do however tell in favor of wearing a seat belt, encouraging others to do the same, and promoting greater awareness of the dangers of riding with an unbelted passenger or other unsecured objects.

Unbelted riders who are gravely injured in accidents may also force others to experience distress when they witness a crash. Auto accidents impose psychic costs on family members who must either care for or mourn the loss of the victims of a crash too. 57 Feinberg is sympathetic to this reason in favor of seemingly paternalistic policies. 58 But this line of argument has counterintuitive extensions. Consider George Rainbolt’s example of a couple, Bob and Sue, who visit the beach. 59 Bob cannot swim. Sue decides to swim. If Sue were to drown as Bob helplessly watched, Bob would suffer great psychic costs. Nevertheless, it would be impermissible for someone to interfere with Sue’s freedom to swim on Bob’s behalf. Even if Sue had special obligations to consider Bob’s well-being, such obligations would not be enforceable and they would not justify a policy that penalized Sue for swimming. Or consider anti-abortion protesters who display images of dead fetuses in order to impose psychic costs on bystanders. Even though they deliberately expose pedestrians and passing motorists to upsetting imagery, they are within their rights to do so because bystanders are not entitled to not be made uncomfortable by other people’s public speech. The same arguments apply to seat belt mandates. Though it is enormously traumatic for loved ones and bystanders to witness the consequences of unbelted riding, the desire to avoid that kind of trauma is not a legitimate basis of public policy. Public officials are not entitled to coercively limit what people can do with their bodies or what they can say on the grounds that bystanders may experience some psychic costs.

Perhaps we are thinking of costs to others too narrowly. When an unbelted rider is injured in an auto accident, someone must pay for his care. In most developed countries either taxpayers or members of an insurance pool share the costs of medical care. Though members of an insurance pool can consent to join an insurance scheme that covers unbelted riders (or not), taxpayers cannot consent to pay for an unbelted rider’s bad choices. On the other hand, insofar as unbelted riding makes it more likely that a passenger will die in an auto accident, unbelted riders might save taxpayers’ money by dying earlier than they otherwise would, and thereby foregoing retirement and medical benefits in their old age. But suppose it is true that unbelted riders do cost taxpayers money relative to restrained riders. Do taxpayers therefore have a complaint against unbelted riders that would warrant seat belt mandates?

The social costs of unbelted riders cannot justify seat belt mandates, either because unbelted riders are not liable to be coerced on the grounds that they will subsequently exercise their right to healthcare or because unbelted riders are not entitled to healthcare so taxpayers have no duty to provide it. Consider the first possibility. Many egalitarians argue that every citizen has a right to a decent minimum of healthcare and that they do not waive their right by making bad choices. Some cite reckless car riders explicitly as an example of this principle. 60 If unbelted riders are entitled to healthcare regardless of their behavior, then they do not make themselves preemptively liable to coercive interference simply because they make it more likely that they will subsequently exercise their right. Consider an analogy. Assume that citizens are entitled to freedom of expression and police protection. Some people will exercise their freedom of expression in ways that require greater police protection, by expressing offensive views or wearing revealing clothing. Yet public officials would not be permitted to preemptively threaten a person with fines for expressing offensive views or wearing revealing clothing, on the grounds that exercising her rights of freedom of expression made it more costly for the state to protect her right to physical security. Similarly, if healthcare is a right, people do not waive their other rights when their choices make it more likely that they will exercise their right to healthcare.

One may reply that freedom of expression is a basic liberty whereas freedom to ride unbelted is not. Yet even freedom of expression is not absolute in protecting people’s rights to injure others. If exercising one’s right to say offensive things or to wear revealing clothing were genuinely an injustice to others in the way that threatening and fraudulent speech are unjust, then these forms of expression would not merit protection. Similarly, the right to ride unbelted is a species of a person’s freedom of movement or rights of bodily integrity. These rights are also very important, but they are not absolute. If an instantiation of these rights is an injustice to others, such as trespassing, then states can limit it. What is at issue is whether members of the political community have a legitimate complaint against people who exercise their negative rights in ways that make it more likely that they will subsequently exercise their positive rights to police protection or healthcare. In a recent discussion of immigration, Michael Blake argues that it is wrong for people to exercise their negative rights, such as freedom of movement, in ways that cause members of the political community to acquire obligations to protect their human rights. 61 But Blake’s claim that people have rights to avoid unwanted obligations has absurd implications, since it would seemingly entail that creating new people or animals violated existing people’s rights because existing people would then be required to assist or to refrain from harming them. 62 More generally, people are not entitled to veto acquiring moral obligations to others on the grounds that they would bear some costs in satisfying those obligations.

Another possibility is that healthcare is not a right or that unbelted riders waive their rights to healthcare by refusing to wear a seat belt. Some rights can be waived. Violent criminals waive their rights to freedom of movement when they commit crimes that merit a prison sentence. But if unbelted riders do not have rights to healthcare, then members of the political community are under no obligation to provide them with medical services in the event of an accident and providing medical services to unbelted riders in need would be a supererogatory act of beneficence. Assuming that people do not have entitlements to avoid psychic costs, taxpayers cannot complain that they feel compelled to altruistically provide benefits to unbelted riders when they are not obligated to do so. Such an argument would be akin to a person who complains about the social pressure to buy all her friends wedding gifts, when she could just as permissibly not do it. In such a case it would surely be wrong for her to sabotage the wedding so that she can avoid the stress of buying gifts. So too, if the unbelted have no right to healthcare then their compatriots do not have legitimate grounds to coerce unbelted riders in order to prevent themselves from later experiencing a desire to provide the injured unbelted with discretionary benefits.

When people die in auto accidents as a result of their own negligence, they do make other people worse off. But harms to others only justify seat belt mandates if those who are harmed by unbelted riders are wronged as well. If a person consents to the increased risk of being harmed by an unbelted rider, her consent at least mitigates the harm of being hit by his body. And while people may suffer substantial psychic costs from their loved one’s poor choice to ride unbelted, people are not entitled to coerce risk-takers so that they may avoid discomfort or emotional trauma. Nor are taxpayers entitled to coerce unbelted riders on the grounds that they will be required to pay for their healthcare, if unbelted riders have rights to healthcare that they cannot waive. If unbelted riders do not have rights to healthcare, or if they waive those rights, then taxpayers also cannot claim to be harmed by unbelted riders because they can permissibly avoid the cost of providing medical services to unbelted riders simply by refusing.

5 Conclusion

What would happen if a government repealed all coercive seat belt mandates for adult passengers and drivers? We don’t have to imagine such an anti-paternalist society. The state of New Hampshire does not enforce seat belt mandates for adults, but requires safety restraints for children. 63 If New Hampshire had a seat belt mandate, it would prevent approximately ten to 20 deaths each year and could save the state millions of dollars in medical expenses. 64 The state currently has one of the lowest rates of seat belt use in the country. But the people of New Hampshire also avoid the costs and potential rights violations that are associated with enforcing a mandate. And New Hampshire riders still buckle up to protect themselves on the road. In light of the foregoing arguments against seat belt mandates, I conclude that societies should follow New Hampshire’s lead. States that are concerned about road safety could compensate for the increased fatalities associated with unbelted riding in other ways. For example, states could also save lives by lowering speed limits and enforcing stricter licensing requirements that prevent reckless and incompetent drivers from putting other motorists’ lives at risk. 65

A second-best option would be to nudge people toward voluntary seat belt mandates by offering an opt-in enforcement program in exchange for reduced insurance rates or heightened legal protections in the event of an accident. In most states, a person’s failure to wear a seat belt does not mitigate his entitlement to collect damages in the event of an accident, but it does in some. These institutional incentives to wear a seat belt, in conjunction with public pressure, could encourage some people to opt into an enforcement program where they advertise that they wish to be subject to primary seat belt enforcement.

A third-best option would be to continue to enforce seat belt mandates but to allow citizens who strongly object to the requirement to opt out. Like the opt-in system, distributing bumper stickers to those who opt out and providing them with a designation on their state identification cards that grants them immunity from seat belt citations could achieve this. This solution would enable those members of the political community who wish to collectively commit to a seat belt mandate to do so, without imposing burdens on citizens who oppose mandates beyond the administrative difficulty of opting out.

The worst option is the system of mandates that is enforced in most us states, Canada, Australia, and the European Union. In these places, almost all citizens who ride in cars are subject to some form of a seat belt mandate, which violates their rights, subjects them to the discretionary power of the police, and expresses an offensive judgment about their ability to make decisions for themselves. Though it is the worst option, public officials and voters favor seat belt mandates because they think that mandates save money, because enforcement generates revenue, because the greatest costs are borne by marginalized people who lack political and social power, and because deaths from auto injuries are more salient than all the other costs combined, even if those other costs outweigh the benefit of saving lives in aggregate. These considerations explain the widespread adoption of seat belt mandates but they do not justify them.

More generally, this analysis of seat belt laws shows that though a person’s choice may seem dangerous and irrational, we must also consider the dangers and irrationalities of prohibiting a choice. Paternalism cannot be justified on the grounds that some people make terrible decisions. Public officials and voters must weigh their interest in public safety against the full costs of coercive paternalism, including the hazards of law enforcement. In the case of seat belt mandates, the risks cannot justify the benefits of enforcement. And if limitations on such a seemingly small choice are indefensible, we should be very skeptical about whether coercive paternalism is ever justified.

This essay was presented at the Georgetown Institute for the Study of Markets and Ethics and at Georgia State University. I am grateful to both audiences for helpful comments. I would also like to thank Javier Hidalgo, Bill Glod, and Jonny Anomaly for their comments on earlier drafts.

1

Joel Feinberg, “Legal Paternalism,” Canadian Journal of Philosophy 1, no. 1 (September 1, 1971): 105–24, p. 106.

2

Sarah Conly replies to Feinberg’s concerns about stopping short saying that, “It is one of the merits of good paternalistic arguments that they justify many sorts of interventions.” Sarah Conly, Against Autonomy: Justifying Coercive Paternalism (Cambridge: Cambridge University Press, 2012), p. 149.

3

For example, the cover of Sarah Conly’s book, which is a defense of coercive paternalism, is a seat belt being buckled. I will discuss many examples of this strategy in the next section. Ibid.

4

This argument begs the question in the way that all deductively valid arguments do. But as we will see, some people deny (3) because they disagree with (1) and others accept (1) but disagree with (2). So even though the argument is question-begging, it is not objectionably so, because each premise on its own is interestingly controversial and necessary to secure the conclusion.

5

Not everyone finds these arguments against paternalism persuasive. Some Kantians, who I will discuss in the next section, are reluctant to interpret a presumption against interference as an absolute rejection of paternalism.

6

Philippe Van Parijs, Real Freedom for All: What (If Anything) Can Justify Capitalism? (Oxford University Press, 1998), p. 26.

7

Joseph Shapiro, “As Court Fees Rise, The Poor Are Paying The Price,” npr , May 19, 2014, http://www.npr.org/2014/05/19/312158516/increasing-court-fees-punish-the-poor.

8

kmov, “Dementia Patient Jailed for 5-Year-Old Seat Belt Citation,” kmov News4, St. Louis, December 26, 2013, http://www.kmov.com/story/28466877/dementia-patient-jailed-for-5-year-old-seat-belt-citation.

9

Centers for Disease Control and Prevention, “Policy Impact: Seat Belts,” Brief (Centers for Disease Control and Prevention, January 2011), http://www.cdc.gov/motorvehiclesafety/seat beltbrief/.

10

This estimate assumes a linear relationship between seat belt usage and lives saved. Alma Cohen and Liran Einav, “The Effects of Mandatory Seat Belt Laws on Driving Behavior and Traffic Fatalities,” The Review of Economics and Statistics 85, no. 4 (November 1, 2003): 828–43, doi:10.1162/003465303772815754.

11

Ibid.

12

Another Millian argument against paternalistic public policies is that permissive policies enable self-development and experiments in living, which are valuable to society even if they are harmful to individuals. John Stuart Mill, On Liberty and Other Essays, ed. John Gray (Oxford ; New York: Oxford University Press, 2008), p. 93.

13

Richard S. Frase, “What Were They Thinking? Fourth Amendment Unreasonableness in Atwater v. City of Lago Vista,” Fordham Law Review 71, no. 2 (2002): 329.

14

See for example, state of North Carolina v. Malik Shaheem franklin, (North Carolina Court of Appeals, December 2012).

15

John L. Worrall, “Addicted to the Drug War: The Role of Civil Asset Forfeiture as a Budgetary Necessity in Contemporary Law Enforcement,” Journal of Criminal Justice 29, no. 3 (May-June 2001): 171–87, doi:10.1016/S0047–2352(01)00082–4.

16

See, for example, Julie Tison and Allan Williams, Neil Chaudhary and James Nichols, “Determining the Relationship of Primary Seat Belt Laws to Minority Ticketing,” Final Report (Washington dc: National Highway Traffic Safety Administration, September 2011); aclu, “Racial Profiling Concerns Cause the Minnesota House To Reject Seat Belt Law,” April10, 2008, https://www.aclu.org/news/racial-profiling-concerns-cause-minnesota-house-reject-seat-belt-law.

17

David A. Harris, “Driving While Black: Racial Profiling On Our Nation’s Highways,” Special Report (American Civil Liberties Union, June 1999), https://www.aclu.org/report/driving-while-black-racial-profiling-our-nations-highways.

18

Nathaniel C. Briggs et al., “Seat Belt Law Enforcement and Racial Disparities in Seat Belt Use,” American Journal of Preventive Medicine 31, no. 2 (August 2006): 135–41, doi:10.1016/j.amepre.2006.03.024.

19

Dara Lind, “The fbi Is Trying to Get Better Data on Police Killings. Here’s What We Know Now,” Vox, April 10, 2015, http://www.vox.com/2014/8/21/6051043/how-many-people-killed-police-statistics-homicide-official-black.

20

Patricio C. Balona, “Man Fleeing Police Run Over and Killed by DeLand Patrol Car,” The Daytona Beach News-Journal, May 8, 2013, http://www.news-journalonline.com/article/20130508/NEWS/130509801.

21

Jason Hanna, Martin Savidge, and John Murgatroyd, “Video Shows Trooper Shooting Unarmed Man, South Carolina Police Say,” cnn , September 26, 2014, http://www.cnn.com/2014/09/25/justice/south-carolina-trooper-shooting/.

22

Ben Mathis-Lilley, “Police Who Shattered Window, Tased Passenger in Viral Traffic-Stop Video Were Reinstated,” Slate, December 8, 2014, http://www.slate.com/blogs/the_slatest/2014/12/08/seat_belt_taser_police_reinstated_hammond_indiana_police_back_on_job.html.

23

Richard Winton, “Judge Accuses ucla Police of Brutality,” Los Angeles Times, ­November 25, 2013, http://articles.latimes.com/2013/nov/25/local/la-me-judge-ucla-20131126#axzz2lhF1Ae13.

24

Joshua Correll et al., “The Police Officer’s Dilemma: A Decade of Research on Racial Bias in the Decision to Shoot,” Social and Personality Psychology Compass 8, no. 5 (May 1, 2014): 201–13, doi:10.1111/spc3.12099; German Lopez, “Why Do Police so Often See Unarmed Black Men as Threats?,” Vox, April 10, 2015, http://www.vox.com/2014/8/28/6051971/police-implicit-bias-michael-brown-ferguson-missouri.

25

For example, Danny Scoccia writes, “[The] varied effects on different persons mean that state paternalism raises distributive justice concerns not raised by private paternalism.” Danny Scoccia, “Paternalism and Manipulation--Working Paper” (Department of Philosophy, nmsu, 2014), p. 22.

26

George Hunter, “Cops’ Jobs Tied to Ticket Totals,” The Detroit News, November 18, 2008, http://www.detroitnews.com/article/20081118/METRO/811180402.

27

Alan Ehrenhalt, “Big Bucks to Buckle Up,” governing the States and Localities, September 2005, accessed May 20, 2015, http://www.governing.com/columns/smart-mgmt/Big-Bucks-Buckle-Up.html.

28

Shiffrin writes, “The motive, I think, is what is central to accounting for why paternalism delivers a special sort of insult to competent, autonomous agents. Even when paternalist behavior does not violate a distinct, independent autonomy right, it still manifests an ­attitude of disrespect toward highly salient qualities of the autonomous agent” (p. 220). Similarly, Quong argues that paternalism conveys the offensive judgment that people cannot competently make their own decisions (pp. 104–105). Seana Valentine Shiffrin, “Paternalism, Unconscionability Doctrine, and Accommodation,” Philosophy & Public Affairs 29, no. 3 (July 2000): 205–50, doi:10.1111/j.1088–4963.2000.00205.x; Jonathan Quong, Liberalism without Perfection, 1 edition (Oxford; New York: Oxford University Press, 2011).

29

Elizabeth S. Anderson, “What Is the Point of Equality?,” Ethics 109, no. 2 (1999): 287–337, p. 301.

30

Gerald Dworkin, “Defining Paternalism,” in Paternalism: Theory and Practice, eds. Christian Coons and Michael Weber (Cambridge University Press, 2013), 25–38, p. 37.

31

See Jay Wallace’s recent discussion of hypocrisy for a further explanation of the relationship between hypocrisy and moral equality. R. Jay Wallace, “Hypocrisy, Moral Address, and the Equal Standing of Persons,” Philosophy & Public Affairs 38, no. 4 (September 1, 2010): 307–41, doi:10.1111/j.1088–4963.2010.01195.x.

32

Peter de Marneffe, “Vice Laws sand Self-Sovereignty,” Criminal Law and Philosophy 7, no. 1 (May 18, 2012): 29–41, doi:10.1007/s11572–012–9157-x; Peter de Marneffe, Liberalism and Prostitution, Reprint edition (New York; Oxford: Oxford University Press, 2012).

33

On the other hand, Scoccia acknowledges that there may be some people who do have genuine autonomy-based reasons to reject seat belt mandates. Scoccia, “Paternalism and Manipulation-- Working Paper”; Danny Scoccia, “The Right to Autonomy and the Justification of Hard Paternalism,” in Paternalism: Theory and Practice, ed. Christian Coons and Michael Weber (Cambridge University Press, 2013).

34

Julian Savulescu, “Bioethics: Why Philosophy Is Essential for Progress,” Journal of Medical Ethics 41, no. 1 (January 1, 2015): 28–33, p. 31.

35

Anderson, “What Is the Point of Equality?”, p. 302.

36

William Glod, “Against Two Modest Conceptions of Hard Paternalism,” Ethical Theory and Moral Practice 16, no. 2 (April 2013): 409–22, p. 410.

37

Jeremy A. Blumenthal, “A Psychological Defense of Paternalism,” in Paternalism: Theory and Practice, eds. Christian Coons and Michael Weber (Cambridge University Press, 2013), 197–215, p. 213.

38

For example, the assurance that a victim would subsequently endorse or appreciate being the victim of a crime cannot justify coercing or assaulting her. Sunstein disagrees. He argues that a law is easier to justify if people will predictably endorse it once it is in place. Cass R. Sunstein, “Legal Interference with Private Preferences,” The University of Chicago Law Review 53, no. 4 (1986): 1129–74, p. 1137.

39

Glod, “Against Two Modest Conceptions of Hard Paternalism.”

40

J. David Velleman, “A Right of Self‐Termination?,” Ethics 109, no. 3 (April 1, 1999): 606–28.

41

Here Cholbi argues that “by making liberty the handmaid of rational autonomy the Kantian opens the door to justifiable paternalism,” including seat belt regulations. Michael Cholbi, “Kantian Paternalism and Suicide Intervention,” in Paternalism: Theory and Practice, eds. Christian Coons and Michael Weber (Cambridge University Press, 2013), p. 116.

42

Douglas N. Husak, “Paternalism and Autonomy,” Philosophy & Public Affairs, 1981, 27–46, p. 36.

43

Samuel Freeman makes an argument like this about paternalistic drug policies. Donald VanDeVeer sketched an argument like this for seat belt mandates. Samuel Freeman, “Liberalism, Inalienability, and Rights of Drug Use,” in Drugs and the Limits of Liberalism: Moral and Legal Issues, ed. Pablo De Greiff (Cornell University Press, 1999); Donald VanDeVeer, “Autonomy Respecting Paternalism,” Social Theory and Practice 6, no. 2 (July 1, 1980): 187–207.

44

This argument has the structure of arguments on behalf of “rights to do wrong” where preventing a wrongful act is more wrongful than the act itself. Jeremy Waldron, “A Right to Do Wrong,” Ethics 92, no. 1 (October 1, 1981): 21–39.

45

For example, primary enforcement of seat belt mandates may limit autonomy in the same way that state-sponsored surveillance limits autonomy. Mandates give public officials discretion to stop drivers with little cause, which can then make passengers vulnerable to further searches that violate other important rights, such as drivers’ property rights or more general liberty rights. For a further discussion of negative rights and privacy see Judith Jarvis Thomson, “The Right to Privacy,” Philosophy & Public Affairs 4, no. 4 (July 1, 1975): 295–314.

46

Christian Coons and Michael Weber, “Introduction: Paternalism–Issues and Trends,” in Paternalism: Theory and Practice, eds. Christian Coons and Michael Weber (Cambridge University Press, 2013), 1–24.

47

Robert Nozick, Anarchy, State, and Utopia, Second edition (New York: Basic Books, 2013), p. 14.

48

Jeremy A. Blumenthal, “Emotional Paternalism,” Florida State University Law Review 35 (2007): 1, p. 26; Thomas S. Ulen, “The Growing Pains of Behavioral Law and Economics,” Vanderbilt Law Review 51 (1998): 1747–1764, p. 1753.

49

Blumenthal, “A Psychological Defense of Paternalism,” p. 200.

50

See e.g. Robert E. Goodin, “Democracy, Preferences and Paternalism,” Policy Sciences 26, no. 3 (August 1, 1993): 229–47.

51

Gerald Dworkin, “Paternalism,” The Monist 56, no. 1 (January 1972), 64–84, p. 79.

52

Even drug addicts quit when they are given strong incentives to do so, which suggests that addictive behaviors are not typically failures of autonomy. Bennett Foddy and Julian Savulescu, “A Liberal Account of Addiction,” Philosophy, Psychiatry, & Psychology: ppp 17, no. 1 (March 1, 2010): 1–22, doi:10.1353/ppp.0.0282.

53

Bill New, “Paternalism and Public Policy,” Economics and Philosophy 15, no. 1 (April 1999): 63–83, doi:10.1017/S026626710000359X; Alan Wertheimer, “Against Autonomy?,” Journal of Medical Ethics, December 17, 2013, medethics – 2013–101553, doi:10.1136/­medethics-2013–101553; Danny Scoccia, “The Right to Autonomy and the Justification of Hard Paternalism,” in Paternalism: Theory and Practice, eds. Christian Coons and Michael Weber (Cambridge University Press, 2013), p. 82.

54

Kenneth E. Warner, “Bags, Buckles, and Belts: The Debate Over Mandatory Passive Restraints in Automobiles,” Journal of Health Politics, Policy and Law 8, no. 1 (Spring 1983): 44–75.

55

Peter Cummings and Frederick P. Rivara, “Car Occupant Death According to the Restraint Use of Other Occupants: A Matched Cohort Study,” The Journal of the American Medical Association 291, no. 3 (January 21, 2004): 343–49.

56

Some commentators suggest that the magnitude of this estimate is overstated. Donald A. Redelmeier and Harriette G.C. Van Spall, “Is There a Greater Risk of Dying in a Car Crash When Other Passengers Are Unrestrained?,” Canadian Medical Association Journal 170, no. 12 (2004): 1793.

57

Trout cites this kind of cost to families as a reason in favor of helmet laws, and the same logic applies to seat belts. J. D. Trout, “Paternalism and Cognitive Bias,” Law and Philosophy 24, no. 4 (July 1, 2005): 393–434, doi:10.1007/s10982–004–8197–3, p. 410.

58

Joel Feinberg, Harm to Self (Oxford University Press, usa, 1986), 141.

59

George W. Rainbolt, “Prescription Drug Laws: Justified Hard Paternalism,” Bioethics 3, no. 1 (January 1, 1989): 45–58, doi:10.1111/j.1467–8519.1989.tb00327.x.

60

Anderson, “What Is the Point of Equality?” 296; Robert E. Goodin, “Negating Positive Desert Claims,” Political Theory 13, no. 4 (November 1, 1985): 575–98, p. 585.

61

Michael Blake, “Immigration, Jurisdiction, and Exclusion,” Philosophy & Public Affairs 41, no. 2 (March 1, 2013): 103–30, doi:10.1111/papa.12012.

62

Javier Hidalgo, “Immigration Restrictions and the Right to Avoid Unwanted Obligations,” Journal of Ethics and Social Philosophy, August 2014, http://jesp.org/articles/download/immigration-restrictions-and-the-right-to-avoid-unwanted-obligations.pdf.

63

The requirement that children wear safety restraints is not objectionably paternalistic insofar as children are not capable of autonomously choosing whether to take the risk of riding unbelted.

64

Katie Zezima, “New Hampshire Senate Rejects Bill on Mandatory Seat Belting,” The New York Times, June 1, 2007, sec. National, http://www.nytimes.com/2007/06/01/us/01seatbelt.html .

65

Lee S. Friedman, Donald Hedeker, and Elihu D. Richter, “Long-Term Effects of Repealing the National Maximum Speed Limit in the United States,” American Journal of Public Health 99, no. 9 (September 2009): 1626–31, doi:10.2105/AJPH.2008.153726.

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