1  

[This paper is a preprint version of the article plublished in a book edited by J.M.

Rosales and K. Palonen: Parliamentarism and Democratic Theory: Historical and

Contemporary Perspectives. Opladen; Berlin; Toronto: Verlag Barbara Budrich, 2015,

pp. 207-228; DOI: 10.2307/j.ctvddzxp8.14 . Please, cite the published version]

Democratic Authority and Informed Consent 1

Javier Gil

In the Western tradition, the doctor-patient relationship has been deeply invested with

normative significance from the birth of the Hippocratic Oath to contemporary

discussions in bioethics. Although that significance has changed throughout this

historical development, the good practices of physicians (and the precautions against

preventable harms) in the context of a medical ethos were the main guideline for a

normative framework that remained dominant well into the twentieth century.

Without denying the knowledge asymmetries characteristic of lay-professional

interactions, the links and responsibilities internal to the doctor-patient relationship

have come to be understood in the meantime in a less paternalistic and hierarchical

way. In fact, the normative core of such a relationship has been reordered by the

generalised idea of informed consent in the medical domains as an expression of the

autonomy of the patient and as a condition for the legitimacy of medical interventions.

These substantial changes have not left unaffected the analogy between doctor-patient

and expert-citizen relationships, which have become commonplace in Western

political thought. Plato was famously the first to productively use this analogy about

politics in The Republic:

                                                                                                               1 This paper is part of the project El utilitarismo y sus críticos: críticas clásicas y contemporáneas al paradigma utilitarista de racionalidad (Spain’s National Research Fund, FFI2012-31209). I am grateful to Alessandro Ferrara, Asunción Herrera, Kari Palonen, and Jesús Vega for comments on previous drafts of this chapter and discussions of its themes. Early versions of the paper were presented at the conference Challenges to Participation in Democracy at the University of Lisbon, the IVth International Congress on Political Philosophy and Theory at the University of Minho, and the IIIrd Workshop KONTUZ! at CSIC, Madrid.

  2  

What is truly natural is for the sick person, rich or poor, to go to the doctor’s

doors, and for anyone who needs to be ruled to go to the doors of the one who

can rule him. It is not for the ruler -if he is truly of any use- to beg the subjects

to accept his rule’ (Plato 2004: VI 489 b–c, 182).

It is not a coincidence that John Stuart Mill took up the political analogy to support

what he saw as true, representative democracy, and to argue against what he saw as an

erroneous notion of democracy. Nor is it unusual that the political analogy has been

used more recently by authors who advocate for epistemic justifications of democratic

authority in order to remove the threat of the epistemocracy, epistemarchy or, the term

I prefer, David Estlund’s epistocracy, i.e. the rule of those who know, the wise or the

experts (Estlund 2003, 2008). As we will see, that menace comes no longer -or at least

not directly- from Plato’s premodern and antidemocratic guardianship doctrine, but it

is not out of tune with the democratic variant of epistocracy that Mill offered with his

conception of parliamentary deliberation and with his advocacy of plural voting,

according to which every citizen should have right to vote but the better educated

deserve more votes.

The aim of this chapter is threefold. First, I will comment on Mill’s epistocracy in

connection with his applications of the political analogy, which highlight both the

value of authority derived from the epistemic superiority of the physician, and the

non-delegable authorisation of patient consent. In the second section I will briefly

consider some contemporary epistemic defenses of democratic deliberation that try to

get rid of the suspicion about the survival of epistocracy, and for that reason assume

the notion of informed consent in a new application of the political analogy of the

doctor-patient relationship. In the final section, I will discuss the persistence of an

ambiguous Millian legacy behind libertarian paternalism’s endorsement of

expertocratic schemes. For that I will discuss the vindication of the notion of

presumed consent and the consequent mandated choice by ruling institutions, as well

as the attempt to redescribe the very idea of informed consent by making it

compatible with choice architecture interventions.

Mill’s Epistocratic Deliberativism

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During the 1830s, Mill’s appeals to the analogy of the doctor-patient relationship

support the idea that in a well-ordered democracy the competences of the

representatives and the general public must be clearly delimited from each other2. If

the represented make clear the value of the knowledge implied in legislative tasks,

they will select their representatives as they do their own doctors, that is, not as if the

elected were mere delegates that have to follow the directives the represented dictated

to them, but as the best qualified that can be found. A patient (without the relevant

medical knowledge) cannot give instructions to the physician about the diagnosis, nor

anticipate the medical treatment necessary, nor require of the doctor the promise of

certain prescription. Similarly, the represented cannot require from their

representatives the strictest adherence to a preconceived judgment that they, as mere

delegates, should restrict themselves to execute. That would mean relinquishing their

autonomy and desist from acting according to their best judgment.

By putting the patient’s trust and respect in the doctor on the same level as citizens’

trust and respect to their representatives, the analogy emphasises the discretionary

nature of the representative’s judgment formation in comparison with the physician’s

use of independent criteria of judgment for the sake of the substantive good of the

patient’s health. It highlights a form of deliberation based on competence and

excellence as the specificity of political representation, while dismissing prospective

control over representatives by their voters. In sum, it expresses a rejection of the

bound mandate and a defence of the independence and discretion of the

representatives3.

                                                                                                               2 See ‘De Tocqueville on Democracy in America [I]’ (1835) and ‘Rationale of Representation’ (1835) (Mill [1835] 1977a: 71–2; [1835] 1977b: 39–41). See also ‘Appendix A: Taylor’s Statesman’ (1837) and ‘Appendix B: Appendix to Dissertations and Discussions, vol. I’ (1959) (Mill [1837] 1977c: 623; [1859] 1977e: 651, n. q). To Nadia Urbinati I owe thanks for a fine reading of these texts (Urbinati 2002: 47–54), as well as a contemporary development of Mill’s advocate-client analogy that in part overlaps with the doctor-patient analogy (Urbinati 2000; 2002: 81–8). 3 Edmund Burke, an enthusiastic defender of the trustee view of representation, uttered the following sentence in his 1780 speech on the independence of parliament and the economical reformation: ‘[The people] are the sufferers, they tell the symptoms of the complaint, but we [the representatives] know the exact seat of the disease, and how to apply the remedy’ (Burke 1839: 225).

  4  

The young Mill completes the analogy by claiming that, although the patient does not

direct the doctor on what medicine to administer or what treatment to recommend

since the patient is not in a position to level the epistemic gap with the doctor, the

patient does not eliminate the prerogative to choose or change doctors nor transfer the

ultimate control over the outcomes. While not competent to judge diagnoses or

treatments, the patient nonetheless is able to know when she gets sick, to evaluate her

doctor in light of the results concerning her welfare or, if disappointed with him, to

take another physician.

At first sight, the election and withdrawal of a doctor seem to reflect the primacy of

negative liberties and to point to an idealised model of the market. The patient’s free

consent or her refusal and change of physician would not be too far from the

behaviour of a consumer who buys or switches to a different product. This consumer

only needs to know what she wants while ignoring how the goods she acquires are

elaborated. Since her personal choices penalise the inefficient producer and select

those who do things better, it could be assumed that these self-interested behaviours

ensure that the management of economic activity will remain in the best hands.

Although Mill did not formulate the notion of informed consent, the very priority of

negative liberty in the moment of authorising who should or should not be the

assigned doctor would help to explain that the main rationale for this notion has a

strong Millian flavour. Informed consent refers to the act of giving permission to a

medical procedure or treatment by a sufficiently competent, autonomous and

knowledgeable patient. It may be instrumentally justified by its contribution to protect

the patient from paternalistic interferences, given that the patient is the best judge of

her own good and is able to adequately concern herself with her health and well-being,

even when doctors supposedly know what is best for her and act in her best interest.

While medical experts are allowed to make decisions on matters that fall within their

fields of expertise, the irreplaceable exercise of patient choice is an expression of

autonomy that Mill linked to the development of individuality as one of the goods of

life: ‘Over himself, over his own body and mind, the individual is sovereign’ (Mill

[1859] 1977d: 224).

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Mill extrapolates this patient sovereignty to the body of the citizens. That patients do

not transfer their authorisation power is equivalent to the democratic idea that power

comes from the people:

The idea of a rational democracy is, not that the people themselves govern, but

that they have security for good government. This security they cannot have,

by any other means than by retaining in their own hands the ultimate control ...

The people ought to be the masters, but they are masters who must employ

servants more skilful than themselves ... A man’s control over his physician is

not nugatory, although he does not direct his physician what medicine to

administer. He either obeys the prescription of his physician, or, if dissatisfied

with him, takes another. In that consists his security. In that consists also the

people’s security; and with that it is their wisdom to be satisfied (Mill [1835]

1977a: 71–2; see also [1859] 1977e: 651).

The people’s control over their representatives by holding them to account, by

electing them or removing them from parliament, is not a petty business, it is said,

because it provides the way to obtain the best outcomes:

They may not always make the wisest choice, because, not being competent

judges, they must depend, in a great measure, on collateral facts, or evidence

of an indirect character ... , but the power of selection and dismissal is the

most effectual means of securing the best services of those whom they choose

(Mill [1835] 1977b: 40).

In view of the above, the political analogy expresses well the tense interaction and the

demanding division of labour between on the one side, the priority of qualified

parliamentary deliberation or representation; and on the other side, the

indispensability of the democratic authorisation or participation. Epistocratic and anti-

Platonic implications show up on both sides.

The democratic ‘power of selection and dismissal’ inverts the Platonic relationship

between ruler and ruled in the sense that it guarantees the voters, to some extent, the

capacity of mastering (i.e. making proper use of) the experts for the sake of collective

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aims. Certainly in another respect control over the physician leaves medical

paternalism untouched and the very sovereign exercise of popular suffrage backs up

the rotation of political elites. But it also legitimises a conception of parliamentary

deliberation that prioritises a judgmental and argumentative competence that all

citizens could exercise. According to that conception, the epistemic qualities of

deliberation are better for all when a competent elite is able to provide an extensive

pluralistic distribution of opinions equivalent to those of the nation as a whole. As

long as the ‘Congress of Opinions’ is the arena for the general interests of the whole

country, it is the full representation of views and their exposure to rational argument

that matter, rather than the representation of individuals and the number or power of

the adherents to these views (Mill [1861] 1977g: 432). We can see here a conception

of parliament as having both a deliberative and a representative function. It also

implies an epistocratic commitment insofar as it justifies giving more power to an

instructed minority. It is said ‘more power’ and not ‘the power’ because the latter

would imply a nondemocratic epistocracy as a kind of political regime, such as

Plato’s guardianship. Rather than hand over all the power to the knowledgeable,

Mill’s moderate epistocracy resists the despotic threat from leaving politics in the

hands of technical experts. As the site for democratic competence of deliberation, the

representative body has to control the skilled competence in service to executive

power and the bureaucratic administration. Nevertheless, Mill’s deliberativism

proposes epistocratic arrangements of opinion-forming processes (and not of

decision-making) within a democracy.

Mill saw ‘the exercise of the suffrage as a matter of judgment, not of inclination; as a

public function, the right to which is conferred by fitness for the intelligent

performance of it’ (Mill [1859] 1977f: 328). In Considerations on Representative

Government he called for measures concerning voters’ qualification and influence that

favour the competence distribution and the productive tension between the select

deliberative body and the body of the citizens. These measures should reinforce the

‘epistocracy of the educated’ (Estlund 2008) while counteracting an increasing

prevalence to ‘declare ignorance to be entitled to as much political power as

knowledge’ (Mill [1861] 1977g: 478). Among the basic qualifications a citizen should

meet in order to earn the right to vote Mill considered the literary test. Although Mill

endorsed a strong commitment to universal education, disenfranchising the illiterate

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meant in practice excluding a significant proportion of the population from political

participation. Another application of the ‘just principle of allowing superiority of

weight to superiority of mental qualities’ (Mill [1861] 1977g: 479) prescribed a

transfer of votes to the most qualified citizens according to their level of epistemic

accomplishment. The political influence should be unequally distributed because

those who possess higher education or exercise ‘superior functions’ and liberal

professions should receive extra votes and their (presumably more reliable) political

views greater weight than those of the average citizens. The latter could be compared

to the patient who trusts the physician, thus acting in her own interest by intelligently

delegating and deferring to those who know more and best:

There is no one who, in any matter which concerns himself, would not rather

have his affairs managed by a person of greater knowledge and intelligence,

than by one of less. There is no one who, if he was obliged to confide his

interest jointly to both, would not desire to give a more potential voice to the

more educated and more cultivated of the two (Mill [1859] 1977f: 324).

Nevertheless, in this and other respects Mill’s ethics of voting go far beyond the

exercise of negative political liberty as an absence of obstacles and a self-interested

device:

The suffrage is indeed due to him, among other reasons, as a means to his own

protection, but only against treatment from which he is equally bound, so far

as depends on his vote, to protect every one of his fellow-citizens. His vote ...

has no more to do with his personal wishes than the verdict of a juryman. It is

strictly a matter of duty; he is bound to give it according to his best and most

conscientious opinion of the public good (Mill [1861] 1977g: 489).

The moment of democratic authorisation demands protecting the common good not

only from ignorance, but also from the perverse influence of spurious votes and

‘sinister interests’. And Mill notoriously proposed public voting as the best way of

expressing the cognitive judgment on the common good. More than a mere right to be

exercised at will or private property to be used only for self interest, the vote acquires

the sense of a public duty towards fellow citizens that ‘should be performed under the

  8  

eye and criticism of the public’ (Mill [1861] 1977g: 490). By assuming a duty that has

to be exercised publicly, the voters’ position becomes similar to the position occupied

by their representatives: ‘Exactly in proportion as the vote of the elector is determined

by his own will, and not by that of somebody who is his master, his position is similar

to that of a member of Parliament, and publicity is indispensable’ (Mill [1859] 1977f:

333). Moreover, public voting may arguably absorb the deliberative style of politics

transformed by parliamentary representation, and therefore the ordinary citizens,

when voting with the general interest in mind, should perform the deliberative

practice of arguing in utramque partem.

Certainly, electoral participation was for Mill only one (and not the most important)

way of improving the educational function of political engagement. But other non-

electoral modes of political involvement (including jury duty and participation in

voluntary associations at the workplace or in the local government) need the quasi-

representative duty of voting in order to realise the citizenship conditions for an

authentic democratic authorisation.

Democratic Authority, Deliberation and Informed Consent

In what follows I will consider some defenders of epistemic justifications of

deliberative democracy that take Mill’s ambiguous legacy seriously and respond to

the challenge of the epistocratic proposal by reconsidering the moment of

authorisation that Mill linked to the security of the patient-citizen, i.e. the power of

choosing and employing ‘servants’ (more skilful than herself) without needing in turn

to directly control or check their expert knowledge. These authors uphold combined

strategies, mixed epistemic and procedural, and consequently they criticise both the

purely procedural and the purely epistemic justifications of deliberative democracy

(see, among others, Lafont 2006; Talisse 2005; Estlund 2003 and 2008). Purely

epistemic as used here means the justifications of deliberation by virtue of the

cognitive value of its outcomes and, in some cases, even to the detriment of other

considerations (like those concerning effective equality in democratic participation).

These authors are particularly critical of epistocratic commitments that can be derived

from such outcome-oriented justifications. They detect in the epistocratic positions a

  9  

non sequitur from an epistemic to a political thesis (Estlund 2008: 29–36, 206–22;

Talisse 2005: 99–103 and 2008: 155–62). Moving directly from expertise to authority

is what Estlund calls the expert/boss fallacy: maybe you know more and better and

you might be correct about what should be done, but that alone doesn’t make you the

boss. There is no direct derivation from the correct epistemic propositions that

knowledge of political issues is possible and that it is unequally distributed to the

political claim that there should be an unequal distribution of political authority, so

that those who know more and best should possess a higher proportion of political

power, for instance, having more than one vote. On the contrary, political authority

should be qualified not only in epistemic terms, but in a democratic sense.

Interestingly, a line of a response to the expert/boss fallacy lets us see how new

political applications of the analogy to the legitimacy of the democratic authority

assume and internalise the notion of informed consent. According to a widespread

interpretation of its basic elements, informed consent imposes upon health

professionals the moral and even legal requirements to disclose all relevant

information and to verify that it is understood, on the one hand, and entrusts the

competent patient the autonomous authorisation to proceed with a medical

intervention, on the other hand.

In this respect, Cristina Lafont considers that what makes medical practice a

meaningful way to illustrate the legitimacy of democratic authority is the fact that the

physician must ask for the patient’s authorisation before making decisions in her

place:

Although doctors are clearly experts and their authority is widely recognized,

we still have to authorize the treatment decisions they make for us. But this is

not because their expertise may be limited or questionable after all. It is just

because no amount of expertise could ever enable them to take my own risks.

Only I can do’. Nobody, no matter how expert, can give my authorisation for

me, because ‘even if someone could know better than me which political

decisions are in my own interest, this does not mean that anyone could be

better than me at giving my own authorisation to act on them (Lafont 2006:

11–2).

  10  

David Estlund stresses likewise the non-delegable authorisation of the patient who

recognises the doctor’s authority: ‘While it makes good sense for us to defer to

someone who we have reason to think is a medical expert, the doctor’s right to make

decisions and perform procedures on us comes mainly from our consent, not from the

doctor’s expertise’ (Estlund 2008: 3). More generally, Estlund considers that we

cannot talk of authority at all when it has not been backed up by appropriate consent:

We are never under the authority of another person unless we have consented

to be. Even if we have consented to authority, we are still not under authority

unless the consent meets certain conditions of adequacy, such as being

uncoerced, informed, and so forth (Estlund 2008: 117).

Estlund’s and Lafont’s uses of the analogy concur that there is no authority without

consent (Estlund calls it ‘the libertarian clause’), that experts cannot be exonerated

from the obligation of requesting lay authorisation before making decisions that will

affect them, and that this authorisation has to be based on the knowledge and the

acceptance of their own risks.

Rather than merely an implication of similarity, we find here marked resemblances

and connections between the doctor-patient and the expert-citizens relationships,

particularly in view of the kinds of consent operating in them. From the normative

point of view, informed consent revaluates the autonomy of the patient to the

detriment of traditional medical paternalism. Roughly, it can be seen as importing into

an asymmetric relationship a less hierarchical, more democratic kind of interaction

between doctors and patients, or even as internalising a patient-centred model of the

relationship. Moreover, this turn is in step with social values, interests and demands of

liberal and democratic societies where the health systems are financed and regulated.

Against this background, the aforementioned authors use the political analogy with a

twofold aim. On the one hand, the analogy implies the acknowledgment of epistemic

values that any democratic authority should pursue when backed by citizen

authorisation. On the other hand, the analogy shows how to undermine the

epistocratic position and avoid the suspicion that it is an endemic danger posed by any

epistemic conception of democratic deliberation.

  11  

Estlund rejects, consequently, traditional and contemporary attempts to clear the

danger of experts as bosses by uncoupling the truth from politics and by basing the

democratic legitimacy on the fundamental value of political equality and the fairness

of the decision procedures. Estlund’s own proposal consists in ‘making truth safe for

democracy’, and that means that the justification of democratic authority rests on the

epistemic quality of the deliberation process, but without privileging the positions of

the presumed experts. More exactly, epistemic proceduralism’s central thesis is that

‘democratically produced laws are legitimate and authoritative because they are

produced by a procedure with a tendency to make correct decisions’ (Estlund 2008: 8).

Accordingly, democracy has a tendency to produce good outcomes and it is that

tendency that explains democracy’s legitimacy and authority. Other authors, like

Cheryl Misak and Robert Talisse, entrust the epistemic superiority of democracy not

to the quality of its outcomes, but to the very epistemic norms that govern our

cognitive lives and inquiry processes and that make democracy possible.

In spite of the similarities, there are deep disparities between the idea of informed

consent and democratic or even deliberative consent. To begin with, while ‘consent to

authority establishes authority’ (Estlund 2008: 119), explicit consent to rulers and

institutions is typically not provided in the same terms as informed and voluntary

consent. And if voting in official elections is seen as a way of consenting, then it

registers a non-retractable opinion or judgment (at least until the next election).

Informed consent for a medical intervention still allows the patient to change her

mind and invalidate previous permission and even disallow the doctor’s decisions.

Moreover, there are no consenting masses in that case: ‘the informed consent

requirement gives a single non-expert ... veto power over some interventions, even

against the will of many expert physicians’ (Eyal 2011) as well as the patient’s many

relatives and loved ones. Nevertheless, it seems to be part of the epistemic and

procedural conceptions of democratic deliberation to embrace the possibility that the

moment of autonomous authorisation can extend beyond the mere casting of votes

and function on the analogy of the ongoing control that a patient’s veto power favours.

Finally, there are no recognised, unquestionable experts in the political domain

beyond all reasonable doubt. There are no individuals or groups to whom all the

reasonable persons are willing to cede authority on the grounds that they know best

  12  

and in the expectation that they will achieve better results. Unlike the doctor-patient

relationship, where informed consent works on the assumption of a clear distribution

of competences, tasks and responsibilities, it is highly unlikely that all citizens concur

on who could even be the candidates to be experts.

Libertarian Paternalism, Deliberation and Expertocracy

In contrast to the previous epistemic positions, Cass Sunstein is a prominent advocate

of deliberative democracy who has repeatedly endorsed expertocratic views. The

deliberative approach can already be found in his earlier discussions on the American

constitutional tradition and the liberal and republican conceptions of politics (see

Sunstein 1984, 1988). According to his interpretation, the Constitution of the United

States was written to support a deliberative democracy, a distinctive conception of

politics that rejected the right to instruct representatives and ensured the constitutional

preconditions for a genuine republic of reason, not a direct democracy.

Therefore, deliberative politics was conceived from the start as combining the

accountability of representatives and the requirements of reflectiveness and reason-

giving in the public domain. The epistemic-deliberative commitments later left their

marks elsewhere in Sunstein’s writings during the nineties. For instance, they

defended the idea that democracy, as John Stuart Mill saw it, aims to ensure

autonomy not merely in the satisfaction of existing preferences but above all in the

processes of preference formation, and that collective and considered judgments are a

product of deliberative processes on the part of citizens and representatives, not an

attempt to aggregate or trade off pre-political preferences by private consumers

(Sunstein 1991). Along with the Madisonian project of constitutionalism and the

Madisonian conception of free speech concerned with a critical approach on the

media influence on the citizenry, Sunstein deliberativism supported a combination of

epistemic and procedural dimensions that associated ‘truth in politics with what

emerges from a well-functioning political process’ (Sunstein 1993b: 248). In this

regard, ‘the correct answers to political controversy’ are the outcomes of a

deliberative process that ‘can approach or meet the appropriate conditions’, and they

  13  

depend accordingly on procedural standards and on political equality in particular

(Sunstein 1993a: 137; 1993b: 19–20).

Sunstein’s many other writings deal with concrete problems in order to make

American democracy more deliberative. That is the case of two well-known books

published in 2001: Designing Democracy, which elaborates the argument that

constitutions operate as ‘precommitment strategies’ for ensuring democratic

deliberation, and Republic.com, in which the political implications of the Internet are

brought to the fore. Since then, Sunstein has confronted democracy with two sources

of deliberative trouble: the persistence of disagreement and political dissent, and the

problems associated with deliberation among like-minded people (see Sunstein 2001a,

2001b, 2002a, 2002b, 2003). On the one hand, he recommends restricting deliberation

in the face of the differences on highly controversial issues by favouring what he

terms ‘incompletely theorized agreements’. Since people disagree on how to resolve

the largest questions, solutions should be sought on practices and low-level principles

on which diverse people can agree in order to bridge social and political divisions. On

the other hand, Sunstein’s analyses of group polarisation findings support the idea that

deliberation in the absence of critical voices and contestation must be discouraged.

Since the members of a homogeneous deliberating group tend to end up with a more

extreme version of their pre-deliberation beliefs, they should be exposed to ideas that

they reject, to topics in which they express little interest, and to reasons and

perspectives they did not contemplate.

As I suggested before, Sunstein makes his epistemic deliberativism compatible with

expertocratic specifications. Certainly, his writings mirror from the start both the

doubts around the competence of ordinary people to deliberate properly and make

informed choices and the conviction of the relevance of delegating decisions to

specialists who are especially trusted. It is worth citing some striking statements that

make explicit the epistocratic attachment. For instance, Risk and Reason, a book

written as ‘a plea for a large role for technocrats’, argues for a ‘cost-benefit state’

controlled largely by economic experts (Sunstein 2002: 7, ix). Accordingly, good

policies and laws are said to follow statistical evidence on real risks, not ordinary

people, who are prone to error when thinking or deciding on perceived risks. That is

also the leitmotif of Laws of Fear, where Sunstein reiterates that well-functioning

  14  

deliberative democracies, when responding to public fears, place ‘a large premium on

science and on what experts have to say’ while avoiding populist tendencies to fall

prey to public panics (Sunstein 2005: 2).

Along these lines, the book advises not only overcoming the precautionary principle

whenever obeying it becomes irrational or runs counter to the best reasons and

calculations, but also reducing the normative pressure of personal autonomy,

whenever appropriate (see Sunstein 2005: 123–4, 154–5, 180). Central themes and

concerns of the two aforementioned books, particularly from the third chapter of Laws

of Fear, are taken up by Worst-Case Scenarios, a book that begins with a variation of

the political analogy of the doctor-patient relationship. If the doctor tells you that an

operation is 99 percent likely to solve a serious health problem without bad side-

effects, you should not pay exclusive attention to the 1 percent of cases in which

things go quite wrong. Similarly to ordinary people, governments need to know the

probabilities of harms and look at the consequences of possible responses in order to

avoid the danger that a low threat may cause policy paralysis in many domains and

create new and even worse threats (Sunstein 2007: 2–3, 8–9).

The last chapter of Laws of Fear, co-authored with the behavioural economist Richard

H. Thaler and based on two previous papers (Thaler and Sunstein 2003; Sunstein and

Thaler 2003), introduces libertarian paternalism as ‘an approach that steers people in

directions that will promote their welfare without foreclosing their own choices’ and

to that extent as a valuable corrective ‘when people’s fears lead them in the wrong

directions’ (Sunstein 2005: 8, 175–203). This approach recommends harnessing

public policies to the findings from behavioural economics and is applied to

deactivate the psychological mechanisms that lead both individuals and regulators to

capitulate to baseless public fear and to catastrophic scenarios. More recently it has

been largely developed in Nudge for ‘improving decisions about health, wealth and

happiness’. The central claim is that libertarian respect for individual freedom of

choice is compatible with a paternalist steering of individuals’ choices ‘in directions

that will improve their lives [and] that will make choosers better off, as judged by

themselves’ (Thaler and Sunstein 2008: 5).

  15  

This proposal raises two distinct issues. On the one hand, preserving freedom does not

mean accepting the absolute epistemic authority of the individual. Rather, the appeal

of libertarian paternalism relies on the evidence that very often individuals do not

have stable or well-ordered preferences and make wrong choices in matters that affect

them (even first and foremost): ‘The false assumption is that almost all people, almost

all of the time, make choices that are in their best interest or at the very least are better

than the choices that would be made by someone else’ (Thaler and Sunstein 2008: 9).

Insofar as Mill’s arguments against paternalism in On Liberty mix consequential and

autonomy-based claims (Sunstein 2005: 181), all that sounds deeply anti-Millian and

very Millian at the same time. It is stated that individuals are not always in the best

position to know what is good for them and do not really make better choices than

third parties possibly could, while it is recognised at the same time that individuals are

entitled to make their own choices even if they err. On the other hand, that individuals

are not currently the best judges of their welfare does not mean that they could not be

so. They could (counterfactually) identify their genuine preferences, assuming that

they would meet the appropriate conditions. The individuals who made inferior

choices would change them ‘if they had complete information, unlimited cognitive

abilities, and no lack of willpower’ (Thaler and Sunstein 2003: 175 and 2008: 5;

Sunstein and Thaler 2003: 1162). Insofar as that standpoint of their best selves can be

provided to them from outside, we face again the Millian ambiguous legacy. As we

have seen, Mill not only claimed that ‘with respect to his own feelings and

circumstances, the most ordinary man or woman has means of knowledge

immeasurably surpassing those that can be possessed by any one else’ (Mill [1859]

1977d: 277), but he also justified the deference to the authority of those who know

best for the sake of protecting both individual and common interests.

Assuming that choice architectures -i.e. the deliberate attempts to organise the context

where people make decisions- are often unavoidable and need not involve coercion,

libertarian paternalism advocates their use to improve both individual decision-

making and outcomes for large numbers of people. Nudging is any intervention that

alters ‘people’s behavior in a predictable way without forbidding any options or

significantly changing their economic incentives’ (Thaler and Sunstein 2008: 6).

Choice architects or nudgers have the responsibility for designing the choice

situations in order to optimise people’s decisions while leaving their choice sets

  16  

untouched. Among the choice architects cited at the beginning of Nudge are the

doctors who describe alternative treatments available to their patients, the parents who

describe possible educational options to their children, and those who design the

ballot voters use to choose candidates (Thaler and Sunstein 2008: 3). Competent

nudgers try to get the most even from seemingly insignificant details that may have

major impacts on nudgees’ behaviour. In fact, the less the nudge is consciously

realised by the nudgee, the greater the effectiveness of the nudge.

Choice architecture is offered as an attractive tool for private organisations and

government agencies. Considered a factor for better governance, it is found to be

quite suitable for those who have responsibilities in public policies. Consequently,

libertarian paternalism recommends governments and policy makers both to become

much more user-friendly by replacing ‘requirements and bans’ with ‘incentives and

nudges’ (Thaler and Sunstein 2008: 14) and to enlist and take advice from experts

from the sound ‘science of choice’ in order to better reach out to people and gently

push them in welfare-promoting directions. By using nudges, these nudgers embrace

our bounded rationality and, making a virtue of our weakness, work with -rather than

against- the heuristics, restraints and biases in human judgment and decision-making

abilities. Since expert nudgers tend to exploit not amend the cognitive deficiencies of

citizens for their own sake, the anti-Millian claim combines with the endorsement of a

mild epistocracy variant.

Giving expert nudgers more political influence by letting them shape choice contexts

of ordinary citizens is said to be perfectly consonant with the libertarian claim that the

availability of opt-out options adequately accommodates the respect for freedom.

However, we can suspect that consenting to nudges potentially diminishes individual

autonomy and puts it at the service of expertocratic designs. Consider the policy of

presumed consent and mandated choice by ruling institutions, as well as the attempt to

redescribe the informed consent by appeal to successful nudges in the example of

organ donation.

Presumed consent is typically invoked to justify emergency interventions in which

patient’s consent cannot be obtained and to legitimise policies of organ donation and

transplantation. According to the latter, doctors and health institutions may assume

  17  

that the deceased is a consenting donor unless she explicitly indicated, when alive,

that her organs should not be taken (and unless her family members or loved ones

refuse to donate them). Libertarian paternalism deepens this assumption by

considering it a shift in the default rule about what is permissible with respect to the

‘explicit consent rule’, which stipulates that people have to register to be organ donors

and that doctors and health institutions are not allowed to extract organs from people

who never gave permission for them to be harvested.

Presumed consent systems are expected to result in an increase of organ donors. They

are a nudge policy intended to achieve an extremely valuable social good. However, it

is not clear to what extent this policy is paternalistic, since it doesn’t necessarily

benefit those whom they nudge. On the other hand, presumed consent is not enough to

meet the requirements of explicit and informed consent. Nevertheless, Sunstein and

Thaler place them on the same footing insofar as both would preserve freedom of

choice and place an onus probandi for those who have reservations. ‘Those who don’t

hold the default preference will have to register in order to opt out’ (2008: 178), either

showing the willingness to donate or taking the opportunity to easily register their

unwillingness to it. In fact, Sunstein and Thaler consider presumed consent not as a

complement to explicit and informed consent, but as functionally equivalent to it.

Nevertheless, failing to say ‘no’ is not the same thing as agreeing. On the contrary,

those who were nudged can quietly change their minds at a later date and eventually

be wronged. Furthermore, since many people obviously do not approve that such a

sensitive matter should be presumed and the very idea ‘may not be an easy sell

politically’, Sunstein and Thaler recommend ‘mandated choice’ as a second best

choice architecture for increasing organ donations (Thaler and Sunstein 2008: 180).

Accordingly, policy-makers can take advantage of something people need, such as a

driver’s license, and require them to record their organ donation preferences for the

application to be accepted. One might well ask whether this forced choosing does not

contradict the claim that ‘nudges are not mandates’ and the proviso that choosers

could judge by themselves what makes them better off (Thaler and Sunstein 2008: 6,

5). Rather, both the default rule and the mandated choice disregard the individual

autonomy, insofar as they modify the availability of alternatives and push the

individual to make a decision apart from any rational discussion with her and

  18  

according to what the expert-nudgers and policy-makers judge as her good on her

behalf.

Although Sunstein has argued for the merits of nudging in the context of health care

policy, he has barely addressed (at least not in a direct and systematic way) the issue

of informed consent. Certainly he likes to cite the convincing evidence for the impact

of message framing on patients’ decisions and also for the vulnerability to framing

effects among the physicians themselves. His favourite case concerns the diverging

decisions whether to undergo a risky yet potentially life-prolonging surgical

procedure depending on how the estimates of survival rates are communicated:

patients are likely to agree to the procedure if they are told that ninety percent are still

alive after five years, instead of hearing that ten percent are dead (see Sunstein 2005:

192; 2006: 77; 2007: 21; Thaler and Sunstein 2008: 36). On the basis of this case, he

seems to imply that ‘the popular idea of patient autonomy’ is overrated and advocates

for the institutional implementation of the nudge: ‘hospitals might frame options in a

way that will lead people to choose medical procedures that are clearly best, even if a

small probability of failure might frighten some patients and lead them to less

promising options’ (Sunstein 2005: 176, 180). However, the selective disclosure of

percentages can hardly be described as sufficient provision of the information needed

to make a well-considered decision. It should rather make way for further

communicative efforts to reach genuine informed consent. Moreover, depending on

the circumstances, framing the issue so as to lend salience to favourable predictions

while taking advantage of an emotionally charged quandary could lead to

manipulation of the patient’s decision-making and could be contrary to informed

consent requirements.

Nevertheless, libertarian paternalism questions the patient’s expression of her ‘true’

preferences at any time, and all the more so when she makes unhealthy and self-

harming choices (for instance, in view of a negligible probability of occurrence of the

worst case scenario). Far from accommodating existing preferences, libertarian

paternalism justifies some degree of intrusiveness in behalf of the ‘true’ preferences,

provided that it complies with a ‘golden rule’ that combines beneficence and non-

maleficence principles: ‘offer nudges that are most likely to help and least likely to

inflict harm’ (Thaler and Sunstein 2008: 72). Interestingly, the libertarian paternalist

  19  

strategy of increasing patients’ autonomy by nudging them to behave in health-

promoting ways, as judged by themselves, has been put forward to the effect of

redesigning informed consent procedures4. But such a strategy only can hope to

promote autonomy by undermining it. It is unable to first and foremost support

individuals in their pursuit of autonomy, because efficient nudges bypass -and

potentially lessen- the control that individuals have over their self-deliberation and

decision-making capacities. At worst the redesign minimises cognitive biases at the

cost of exploiting the tendency of individuals to choose passively and unreflectively.

Conclusion

Deliberative democracy seems to be uncoupled from libertarian paternalism and, in a

sense, democratic deliberation among citizens is both contrary to and substituted by

nudgers’ interventions aimed at reshaping citizens’ preferences. However, libertarian

paternalism not only revives the debates about the legitimacy of paternalist authority

in public policy, but it can also be seen as expanding a broader conception of

democracy where deliberation remains central. Although nudges affect us (even

without our realising) through non-rational means, Sunstein recognises that ‘much of

the time, our choices are a product of reflection and deliberation, even if we are

simply acting as consumers’ (Sunstein 2007, 229). In this regard, libertarian

paternalism may seek to persuade citizens to be aware of their partially rational

behavioural patterns, to control their cognitive, emotional and motivational capacities,

and to develop coping mechanism to deal with them.

Furthermore, the political use of (wise and good) choice architectures can work as an

exponent of a deliberative democracy that -as stated in Sunstein’s book Infotopia-

rests on ‘the belief that many minds can be trusted’ when they increase the likelihood

of aims as ‘elicit information, promote creativity and improve decisions’ (Sunstein

2006: 200). Along these lines, the expert enlistment need not be the only strategy to

identify and legitimise the most effective nudges. One of the aims of Nudge was to

provoke democratic discussions on the political value of nudging, and Thaler and                                                                                                                4 See for instance Shlomo Cohen (2013), as well as the issue of The American Journal of Bioethics devoted to discussion of Cohen’s article.

  20  

Sunstein even encouraged their readers to design nudges and send them to the website

nudge.org. Competent choice architecture does not need to be a task reserved for a

few specialists and may to be linked to more deliberative devices in which the

participatory citizens are on a par with the experts. The harnessing of self-interested

and manipulative nudgers and policy-makers to the transparency criterion and Rawls

publicity principle requires likewise the deliberative mandate to further empower

citizens to monitor both sinister and insidious nudges (see Thaler and Sunstein 2008:

239–46).

Mill thought that the acceptability of political outcomes should have an impact on the

reasonability of the citizens’ motives and duties, and that the epistocratic principle

should be coupled with the participatory principle and even guide it. I have suggested

that Sunstein’s deliberative drift never leaves this Millian’s trail. His revisiting of the

medical-political analogy makes it clear that the libertarian moment of authorisation

to the hired civil ‘servants’ remains for him a legitimacy requirement, albeit malleable,

whereas he maintains (unlike the anti-epistocratic defenders of epistemic deliberation)

that the individual autonomy and its rationality should be epistocraticly arranged.

However, at the end of the day, the task extends beyond the very desirability of

reliable experts and nudgers, to a broader milieu in which the deliberation efforts

work in concert with many other forms of collective intelligence.

References

Burke, Edmund (1839): The Works of Edmund Burke, Vol. II. Boston: C. C. Little & J.

Brown.

Cohen, Shlomo (2013): ‘Nudging and Informed Consent’, The American Journal of

Bioethics, 13:6, 3–11.

Estlund, David (2003): ‘Why Not Epistocracy’, in Desire, Identity and Existence:

Essays in Honor of T. M. Penner, ed. Naomi Reshotko. Edmonton: Academic Printing

and Publishing, 53–69.

Estlund, David (2008): Democratic Authority: A Philosophical Framework.

Princeton: Princeton University Press.

  21  

Eyal, Nir (2011): ‘Informed Consent’, in The Stanford Encyclopedia of Philosophy,

ed. Edward N. Zalta (fall 2012 ed),

http://plato.stanford.edu/archives/fall2012/entries/informed-consent/.

Lafont, Cristina (2006): ‘Is the Ideal of a Deliberative Democracy Coherent?’, in

Deliberative Democracy and its Discontents, ed. Samantha Besson and José Luis

Martí. Aldershot: Ashgate.

Mill, John Stuart ([1835] 1977a): ‘De Tocqueville on Democracy in America [I]’, The

Collected Works of John Stuart Mill, gen. ed. John M. Robson. Toronto and London:

University of Toronto Press & Routledge and Kegan Paul, referred as CW, 33 vols.,

XVIII.

Mill, John Stuart ([1835] 1977b): ‘Rationale of Representation’, CW, XIX.

Mill, John Stuart ([1837] 1977c): ‘Appendix A: Taylor’s Statesman’, CW, XIX.

Mill, John Stuart ([1859] 1977d): On Liberty, CW, XVIII.

Mill, John Stuart ([1859] 1977e): ‘Appendix B: Appendix to Dissertations and

Discussions, Vol. I’, CW, XIX.

Mill, John Stuart ([1859] 1977f): Thoughts on Parliamentary Reform, CW, XIX.

Mill, John Stuart ([1861] 1977g): Considerations on Representative Government, CW

XIX.

Plato (2004): The Republic. Indianapolis: Hackett.

Sunstein, Cass (1984): ‘Naked Preferences and the Constitution’, Columbia Law

Review, 84, 1689–732.

Sunstein, Cass (1988): ‘Beyond the Republican Revival’, The Yale Law Journal, 97:8,

1539–90.

Sunstein, Cass (1991): ‘Preferences and Politics’, Philosophy and Public Affairs, 20:1,

3–34.

Sunstein, Cass (1993a): The Partial Constitution. Cambridge, Mass.: Harvard

University Press.

Sunstein, Cass (1993b): Democracy and the Problem of Free Speech. New York: The

Free Press.

Sunstein, Cass (2001a): Designing Democracy: What Constitutions Do. New York:

Oxford University Press.

Sunstein, Cass (2001b): Republic.com. Princeton: Princeton University Press.

Sunstein, Cass (2002a): Risk and Reason: Safety, Law, and the Environment.

Cambridge: Cambridge University Press.

  22  

Sunstein, Cass (2002b): ‘The Law of Group Polarization’, Journal of Political

Philosophy, 10:2, 175–95.

Sunstein, Cass (2003): Why Societies Need Dissent. Cambridge, Mass.: Harvard

University Press.

Sunstein, Cass (2005): Laws of Fear: Beyond the Precautionary Principle.

Cambridge: Cambridge University Press.

Sunstein, Cass (2006): Infotopia: How Many Minds Produce Knowledge. Oxford:

Oxford University Press.

Sunstein, Cass (2007): Worst-Case Scenarios. Cambridge, Mass.: Harvard University

Press.

Sunstein, Cass and Richard Thaler (2003): ‘Libertarian Paternalism is Not an

Oxymoron’, University of Chicago Law Review, 70:4, 1159–202.

Talisse, Robert (2005): Democracy after Liberalism: Pragmatism and Deliberative

Politics. New York: Routledge.

Talisse, Robert and Scott F. Aikin (2008): Pragmatism: A Guide for the Perplexed.

New York: Continuum.

Thaler, Richard and Cass Sunstein (2003): ‘Libertarian Paternalism’, The American

Economics Review, 93:2, 175–9.

Thaler, Richard and Cass Sunstein (2008): Nudge: Improving Decisions about Health,

Wealth, and Happiness. New Haven: Yale University Press.

Urbinati, Nadia (2000): ‘Representation as Advocacy: A Study of Democratic

Deliberation’, Political Theory, 28, 258–86.

Urbinati, Nadia (2002): Mill on Democracy: From the Athenian Polis to

Representative Government. Chicago: The Chicago University Press.