There are two things I don’t understand about anti-paternalism: the branding strategy/scope; and the connection with democracy.
The state constrains our freedom in all sorts of ways (taxation, road rules, enforcement of property rights) for all sorts of reasons (redistribution, public safety, economic efficiency). These all look pretty paternalist to me: they are all rules designed to mould society in ways that some people want.
Are they really much different to the things that get called nanny state paternalism (eg tougher alcohol & smoking laws)? The motivations are roughly the same: trying to align behaviour with some peoples’ view of what is good for society. The mechanisms are similar: compulsion. I’m thinking that the big difference might be novelty: new rule proposals are nanny state paternalism because that brand might help to defeat them; old rules might also be nanny state paternalism but they’re in place now so its harder for opposition to be effective so lets not devalue the nanny state paternalist brand through over-use?
The nanny state paternalist brand gets slapped on proposals people don’t like, but it doesn’t mean much more than “I don’t like this”. That is fine as a generally rallying cry for anyone who opposes a constraining policy, but it doesn’t do anything to promote competition-on-the-merits between policy options.
And to the extent that the brand is useful in rallying opposition, it is potentially devalued by over-use. For example, while usage is normally restricted to proposals that constrain, that needn’t remain so. I could imagine Kyle Chapman describing our immigration laws as nanny state paternalism on the grounds that they permit refugees to enter NZ.
So much for branding, what about the democracy angle? This I find particularly interesting. Many legal constraints enjoy widespread support even though they are actually nanny state paternalism (ie they constrain us because some people at some time thought that was a good idea). So how do anti-paternalists regard democracy? For example, would it be OK to have tighter alcohol laws if most people wanted them?
This question is addressed in Eric Crampton’s quotes from the great James Buchanan (here), but Buchanan’s argument is at best partial. He points to the fact that normal voting processes don’t reflect the intensity of preferences: we just mark the Bill and Ben Party candidate on the ballot paper; there is no way to say that we like this party, say, 10 times more than any other. In theory, this means that a referendum question could get more than 50% of ‘yes’ votes even though total wellbeing would be reduced by ‘yes’ because those voting ‘no’ feel more strongly about ‘no’ than those voting ‘yes’ feel about ‘yes’.
While that is possible in theory, in practice we have no way of telling whether it happened in any particular case. But anyway, accepting it as a theoretical possibility, what are the implications? Buchanan argues that the domain of democracy needs to be restricted, to
prevent ordinary democratic majorities, in the electorates or in legislative assemblies, from entering too readily into the sumptuary areas of activities.
Presumably, hopefully, a constitutional move like this would require broad popular support, but even then we’d be in the slightly incongrous position of advocating that a popular vote be used to prohibit the use of popular votes. Isn’t it just more nanny state paternalism to ban the making of certain rules?
There are also boundary issues. One is the nanny state paternalist brand is readily attached to non-sumptuary stuff, like the anti-smacking law. But even in respect of food, something like the proposal for mandatory country of origin labelling could fall on either side of a constitutional line.
In summary, I don’t like the nanny state paternalist brand because it looks like just an ad hominem argument in disguise and it seems to almost deny the legitimacy of democratic decision making.