The following is the first in a series of blog posts accompanying new episodes of the Bradley Lectures podcast. The subject of this article is “Making Men Normal,” an episode examining Cass Sunstein’s 1996 Bradley lecture, “Should Government Change Social Norms?” ”
The study of politics, government or law often deals with the fundamental question of what actions the state can legitimately prohibit. The seemingly obvious answer, at least in the liberal Western tradition, comes down to one form of John Stuart Mill’s harm principle: State power is legitimately exercised if an action causes harm to another person or to the public.
But the answer is not so obvious in reality. (Libertarians: Prepare to look away.)
In a Bradley lecture at the AEI in November 1996, law professor Cass Sunstein argued that government can and (normatively speaking) go beyond Mill and change social norms that hinder “freedom and the good.” to be “.
Sunstein’s argument rests on a few stipulations that people of all political persuasions should take seriously. The first is that the standards – which encompass a lot of things, ranging from considering certain opinions beyond acceptable speech to not carrying a gun in a neighborhood where guns are scarce – work like taxes or charges. subsidies on certain behaviors. Someone carrying a gun in the upper-middle-class neighborhood of Sunstein, he mentions, is “taxed” for doing so with social mistrust and stigma.
Further, Sunstein argues that the norms we inherit were not shaped by our own conscious choices but by a long series of laws, opinions and cultures that came before us. We are not free as long as we subscribe to those standards and not those shaped by our own reason and choice. Perhaps we should welcome the intervention of the liberating state.
But Sunstein obviously faces several major obstacles in defending his cause. The American foundation is not the least, which in its mind (if not always in the letter of its documents) enshrines a more liberal sensibility than Sunstein claims, and limits the power of the state accordingly. It also faces pragmatic obstacles: how does the government achieve its objectives? In the case of discouraging smoking in the 1990s, it was a combination of public messages and taxation – but to what extent can this strategy be applied?
But more interesting to those who observe today’s political battles is the problem of limitation. What can reasonably be called “standards” is such a broad set of behaviors that it covers all facets of American life. We are governed by standards as consumers, parents, employees, or simply strangers passing through the streets. We are governed by ethical standards that have been shaped by past generations, which together make up the society we know today. There is no escaping the standards which Sunstein argues are ripe for replacement.
So why should the state be forced to change only those norms that can influence âfreedom and well-beingâ? Besides, why should these terms be limited in scope?
Some on the left and right have recently adopted Sunstein’s way of thinking, reflecting the broad potential applications of Sunstein’s thesis.
On the left, consider the standards around language and terminology. As standards begin to evolve around gender fluidity and individuals’ preferred gender pronouns, some governments have chosen to advance the “standards cascade” with the force of the law by imposing fines or even jail. those who refer to other people by a non-preferred. pronoun.
On the right, meanwhile, debate rages on whether and how to order American society toward a higher good. In the past, conservatives have argued for “the art of governing like the soul” or for a government that can “make men moral”, generally choosing to steer the power of change from the norms of the soul. ‘State towards promoting virtue and moral behavior, rather than increasing choice and autonomy – values ââwhich, interestingly, Sunstein explicitly subordinates to the “public good.”
Many conservatives whitewash the idea of ââusing state power to increase individual autonomy and maximize choice, while progressives are similarly suspicious of the state enforcing codes of virtue and morality. . Sunstein then asks us all difficult questions: What standards, if any, can the state strive to change? What is the limiting principle that makes certain standards untouchable?
(And what are we going to do with all the libertarians who just passed out?)