An underappreciated aspect of F.A. Hayek’s mature views about rationality is the inter-relation o... more An underappreciated aspect of F.A. Hayek’s mature views about rationality is the inter-relation of the “pure logic of choice” and rule-following behavior. Sometimes it is asserted that Hayek abandoned his earlier understanding of individual rationality and replaced it with a completely rule-oriented conception of decisionmaking. In fact, however, the analysis in Hayek’s Sensory Order gives us the framework in which the relative roles of explicit choice-logic and rule-following can be discerned. Furthermore, this framework also shows that his fundamental conception of individual rationality is pragmatic, contextual, modifiable, and ecological. While standard neoclassical economists were axiomatizing the explicit logic of choice, Hayek was decades ahead of these economists in understanding the nature of decisionmaking outside of completely artificial worlds in which there are no cognitive limits and in which the structure of the environment is simple. This article attempts to lay the foundation for an integrated understanding of Hayek’s pragmatic rule-following rationality and the “ecological rationality” of Gerd Gigerenzer and other researchers.
The first part of this Article outlines a conception of “the market” as an abstract and complex e... more The first part of this Article outlines a conception of “the market” as an abstract and complex emergent order that is unplanned and has no specific ends. I draw on major classical liberal thinkers to elaborate this picture in order to emphasize the role that such a description plays in the liberal case for a market order. The second part describes in broad outline the kinds of rules needed to sustain the market. These rules can be reasonably described as “abstract.” The third part connects abstract moral and legal rules with a psychological framework known as construal-level theory. This framework usefully connects the degree of abstraction or level at which a problem is construed with the evaluation and judgments of agents, including judges, litigants and the general public. I argue that beneficence (generosity) is a concrete virtue and justice is an abstract one. In a concrete construal of a moral or legal problem the tendency is to evaluate and decide on the basis of the concrete virtue rather than the abstract. The fourth and last part illustrates the general issues by discussing two relevant legal examples: the police power and the contract doctrine of unconscionability. I also illustrate the interplay between special interests and the benevolent attitudes of people spurred on by low-levels of problem construal.
The "new paternalism" claims that careful policy interventions can help people make better decisi... more The "new paternalism" claims that careful policy interventions can help people make better decisions in terms of their own welfare, with only mild or nonexistent infringement of personal autonomy and choice. This claim to moderation is not sustainable. Applying the insights of the modern literature on slippery slopes to new paternalist policies suggests that such policies are particularly vulnerable to expansion. This is true even if policymakers are fully rational. More importantly, the slippery-slope potential is especially great if policymakers are not fully rational, but instead share the behavioral and cognitive biases attributed to the people their policies are supposed to help. Accepting the new paternalist approach creates a risk of accepting, in the long run, greater restrictions on individual autonomy than have been heretofore acknowledged.
A growing literature in law and public policy harnesses research in behavioral economics to justi... more A growing literature in law and public policy harnesses research in behavioral economics to justify a new form of paternalism. Contributors to this literature typically emphasize the modest, non-intrusive character of their proposals. A distinct literature in law and public policy analyzes the validity of "slippery slope" arguments. Contributors to this literature have identified various mechanisms and processes by which slippery slopes operate, as well as the circumstances in which the threat of such slopes is greatest.
The "new paternalism" claims that careful policy interventions can help people make better decisi... more The "new paternalism" claims that careful policy interventions can help people make better decisions in terms of their own welfare, with only mild or nonexistent infringement of personal autonomy and choice. This claim to moderation is not sustainable. Applying the insights of the modern literature on slippery slopes to new paternalist policies suggests that such policies are particularly vulnerable to expansion. This is true even if policymakers are fully rational. More importantly, the slippery-slope potential is especially great if policymakers are not fully rational, but instead share the behavioral and cognitive biases attributed to the people their policies are supposed to help. Accepting the new paternalist approach creates a risk of accepting, in the long run, greater restrictions on individual autonomy than have been heretofore acknowledged.
This Article takes the findings of the behavioral economic and psychological literature seriously... more This Article takes the findings of the behavioral economic and psychological literature seriously and shows that new paternalist policies can reliably increase welfare only if they take account of individual circumstances. These circumstances include the extent of biases, the existence and degree of self-debiasing, the interaction of different biases, and the unraveling of self-regulation due to paternalist policies. New paternalists must also deal with the indeterminacy of true preferences in the context of conflicting preferences within individuals.
The "new paternalism" claims that careful policy interventions can help people make better decisi... more The "new paternalism" claims that careful policy interventions can help people make better decisions in terms of their own welfare, with only mild or nonexistent infringement of personal autonomy and choice. This claim to moderation is not sustainable. Applying the insights of the modern literature on slippery slopes to new paternalist policies suggests that such policies are particularly vulnerable to expansion. This is true even if policymakers are fully rational. More importantly, the slippery-slope potential is especially great if policymakers are not fully rational, but instead share the behavioral and cognitive biases attributed to the people their policies are supposed to help. Accepting the new paternalist approach creates a risk of accepting, in the long run, greater restrictions on individual autonomy than have been heretofore acknowledged.
A growing literature in law and public policy harnesses research in behavioral economics to justi... more A growing literature in law and public policy harnesses research in behavioral economics to justify a new form of paternalism. Contributors to this literature typically emphasize the modest, non-intrusive character of their proposals. A distinct literature in law and public policy analyzes the validity of "slippery slope" arguments. Contributors to this literature have identified various mechanisms and processes by which slippery slopes operate, as well as the circumstances in which the threat of such slopes is greatest.
The "new paternalism" claims that careful policy interventions can help people make better decisi... more The "new paternalism" claims that careful policy interventions can help people make better decisions in terms of their own welfare, with only mild or nonexistent infringement of personal autonomy and choice. This claim to moderation is not sustainable. Applying the insights of the modern literature on slippery slopes to new paternalist policies suggests that such policies are particularly vulnerable to expansion. This is true even if policymakers are fully rational. More importantly, the slippery-slope potential is especially great if policymakers are not fully rational, but instead share the behavioral and cognitive biases attributed to the people their policies are supposed to help. Accepting the new paternalist approach creates a risk of accepting, in the long run, greater restrictions on individual autonomy than have been heretofore acknowledged.
This Article takes the findings of the behavioral economic and psychological literature seriously... more This Article takes the findings of the behavioral economic and psychological literature seriously and shows that new paternalist policies can reliably increase welfare only if they take account of individual circumstances. These circumstances include the extent of biases, the existence and degree of self-debiasing, the interaction of different biases, and the unraveling of self-regulation due to paternalist policies. New paternalists must also deal with the indeterminacy of true preferences in the context of conflicting preferences within individuals.
Herbert Spencer (1820–1930) believed that Victorian Britain was moving toward a society of total ... more Herbert Spencer (1820–1930) believed that Victorian Britain was moving toward a society of total regimentation (“slavery”). This movement was part of a cosmic process of evolution and dissolution. While the long-run (but not ultimate) destination of society was a “higher” form of social organization based on voluntary and complex interpersonal relationships, the immediate tendency was retrograde—a movement away from the liberation of mankind from the bondage of previous eras. This Article explores (1) the reasons for the retrograde movement, (2) its “inevitability”, and (3) the role of ideas in the process. The general conclusion is that in an effort to explain the general movement of social institutions and practices, Spencer develops a mechanical and deterministic approach which undermines his ability to pass normative judgements on changes in society.
believed that Victorian Britain was moving toward a society of total regimentation ("slavery"). T... more believed that Victorian Britain was moving toward a society of total regimentation ("slavery"). This movement was part of a cosmic process of evolution and dissolution. While the long-run (but not ultimate) destination of society was a "higher" form of social organization based on voluntary and complex interpersonal relationships, the immediate tendency was retrograde-a movement away from the liberation of mankind from the bondage of previous eras. This Article explores (1) the reasons for the retrograde movement, (2) its "inevitability," and (3) the role of ideas in the process. The general conclusion is that in an effort to explain the general movement of social institutions and practices, Spencer develops a mechanical and deterministic approach which undermines his ability to pass normative judgements on changes in society.
An underappreciated aspect of F.A. Hayek’s mature views about rationality is the inter-relation o... more An underappreciated aspect of F.A. Hayek’s mature views about rationality is the inter-relation of the “pure logic of choice” and rule-following behavior. Sometimes it is asserted that Hayek abandoned his earlier understanding of individual rationality and replaced it with a completely rule-oriented conception of decisionmaking. In fact, however, the analysis in Hayek’s Sensory Order gives us the framework in which the relative roles of explicit choice-logic and rule-following can be discerned. Furthermore, this framework also shows that his fundamental conception of individual rationality is pragmatic, contextual, modifiable, and ecological. While standard neoclassical economists were axiomatizing the explicit logic of choice, Hayek was decades ahead of these economists in understanding the nature of decisionmaking outside of completely artificial worlds in which there are no cognitive limits and in which the structure of the environment is simple. This article attempts to lay the foundation for an integrated understanding of Hayek’s pragmatic rule-following rationality and the “ecological rationality” of Gerd Gigerenzer and other researchers.
The first part of this Article outlines a conception of “the market” as an abstract and complex e... more The first part of this Article outlines a conception of “the market” as an abstract and complex emergent order that is unplanned and has no specific ends. I draw on major classical liberal thinkers to elaborate this picture in order to emphasize the role that such a description plays in the liberal case for a market order. The second part describes in broad outline the kinds of rules needed to sustain the market. These rules can be reasonably described as “abstract.” The third part connects abstract moral and legal rules with a psychological framework known as construal-level theory. This framework usefully connects the degree of abstraction or level at which a problem is construed with the evaluation and judgments of agents, including judges, litigants and the general public. I argue that beneficence (generosity) is a concrete virtue and justice is an abstract one. In a concrete construal of a moral or legal problem the tendency is to evaluate and decide on the basis of the concrete virtue rather than the abstract. The fourth and last part illustrates the general issues by discussing two relevant legal examples: the police power and the contract doctrine of unconscionability. I also illustrate the interplay between special interests and the benevolent attitudes of people spurred on by low-levels of problem construal.
The "new paternalism" claims that careful policy interventions can help people make better decisi... more The "new paternalism" claims that careful policy interventions can help people make better decisions in terms of their own welfare, with only mild or nonexistent infringement of personal autonomy and choice. This claim to moderation is not sustainable. Applying the insights of the modern literature on slippery slopes to new paternalist policies suggests that such policies are particularly vulnerable to expansion. This is true even if policymakers are fully rational. More importantly, the slippery-slope potential is especially great if policymakers are not fully rational, but instead share the behavioral and cognitive biases attributed to the people their policies are supposed to help. Accepting the new paternalist approach creates a risk of accepting, in the long run, greater restrictions on individual autonomy than have been heretofore acknowledged.
A growing literature in law and public policy harnesses research in behavioral economics to justi... more A growing literature in law and public policy harnesses research in behavioral economics to justify a new form of paternalism. Contributors to this literature typically emphasize the modest, non-intrusive character of their proposals. A distinct literature in law and public policy analyzes the validity of "slippery slope" arguments. Contributors to this literature have identified various mechanisms and processes by which slippery slopes operate, as well as the circumstances in which the threat of such slopes is greatest.
The "new paternalism" claims that careful policy interventions can help people make better decisi... more The "new paternalism" claims that careful policy interventions can help people make better decisions in terms of their own welfare, with only mild or nonexistent infringement of personal autonomy and choice. This claim to moderation is not sustainable. Applying the insights of the modern literature on slippery slopes to new paternalist policies suggests that such policies are particularly vulnerable to expansion. This is true even if policymakers are fully rational. More importantly, the slippery-slope potential is especially great if policymakers are not fully rational, but instead share the behavioral and cognitive biases attributed to the people their policies are supposed to help. Accepting the new paternalist approach creates a risk of accepting, in the long run, greater restrictions on individual autonomy than have been heretofore acknowledged.
This Article takes the findings of the behavioral economic and psychological literature seriously... more This Article takes the findings of the behavioral economic and psychological literature seriously and shows that new paternalist policies can reliably increase welfare only if they take account of individual circumstances. These circumstances include the extent of biases, the existence and degree of self-debiasing, the interaction of different biases, and the unraveling of self-regulation due to paternalist policies. New paternalists must also deal with the indeterminacy of true preferences in the context of conflicting preferences within individuals.
The "new paternalism" claims that careful policy interventions can help people make better decisi... more The "new paternalism" claims that careful policy interventions can help people make better decisions in terms of their own welfare, with only mild or nonexistent infringement of personal autonomy and choice. This claim to moderation is not sustainable. Applying the insights of the modern literature on slippery slopes to new paternalist policies suggests that such policies are particularly vulnerable to expansion. This is true even if policymakers are fully rational. More importantly, the slippery-slope potential is especially great if policymakers are not fully rational, but instead share the behavioral and cognitive biases attributed to the people their policies are supposed to help. Accepting the new paternalist approach creates a risk of accepting, in the long run, greater restrictions on individual autonomy than have been heretofore acknowledged.
A growing literature in law and public policy harnesses research in behavioral economics to justi... more A growing literature in law and public policy harnesses research in behavioral economics to justify a new form of paternalism. Contributors to this literature typically emphasize the modest, non-intrusive character of their proposals. A distinct literature in law and public policy analyzes the validity of "slippery slope" arguments. Contributors to this literature have identified various mechanisms and processes by which slippery slopes operate, as well as the circumstances in which the threat of such slopes is greatest.
The "new paternalism" claims that careful policy interventions can help people make better decisi... more The "new paternalism" claims that careful policy interventions can help people make better decisions in terms of their own welfare, with only mild or nonexistent infringement of personal autonomy and choice. This claim to moderation is not sustainable. Applying the insights of the modern literature on slippery slopes to new paternalist policies suggests that such policies are particularly vulnerable to expansion. This is true even if policymakers are fully rational. More importantly, the slippery-slope potential is especially great if policymakers are not fully rational, but instead share the behavioral and cognitive biases attributed to the people their policies are supposed to help. Accepting the new paternalist approach creates a risk of accepting, in the long run, greater restrictions on individual autonomy than have been heretofore acknowledged.
This Article takes the findings of the behavioral economic and psychological literature seriously... more This Article takes the findings of the behavioral economic and psychological literature seriously and shows that new paternalist policies can reliably increase welfare only if they take account of individual circumstances. These circumstances include the extent of biases, the existence and degree of self-debiasing, the interaction of different biases, and the unraveling of self-regulation due to paternalist policies. New paternalists must also deal with the indeterminacy of true preferences in the context of conflicting preferences within individuals.
Herbert Spencer (1820–1930) believed that Victorian Britain was moving toward a society of total ... more Herbert Spencer (1820–1930) believed that Victorian Britain was moving toward a society of total regimentation (“slavery”). This movement was part of a cosmic process of evolution and dissolution. While the long-run (but not ultimate) destination of society was a “higher” form of social organization based on voluntary and complex interpersonal relationships, the immediate tendency was retrograde—a movement away from the liberation of mankind from the bondage of previous eras. This Article explores (1) the reasons for the retrograde movement, (2) its “inevitability”, and (3) the role of ideas in the process. The general conclusion is that in an effort to explain the general movement of social institutions and practices, Spencer develops a mechanical and deterministic approach which undermines his ability to pass normative judgements on changes in society.
believed that Victorian Britain was moving toward a society of total regimentation ("slavery"). T... more believed that Victorian Britain was moving toward a society of total regimentation ("slavery"). This movement was part of a cosmic process of evolution and dissolution. While the long-run (but not ultimate) destination of society was a "higher" form of social organization based on voluntary and complex interpersonal relationships, the immediate tendency was retrograde-a movement away from the liberation of mankind from the bondage of previous eras. This Article explores (1) the reasons for the retrograde movement, (2) its "inevitability," and (3) the role of ideas in the process. The general conclusion is that in an effort to explain the general movement of social institutions and practices, Spencer develops a mechanical and deterministic approach which undermines his ability to pass normative judgements on changes in society.
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