Recently I was reading J.D. Trout’s The Empathy Gap.  The main thrust of the work is that the reasoning capacities of human beings are limited and should be supplemented by the structure of social institutions to improve our decision-making.  For example, as the title suggests, social institutions can be used to bridge the “empathy gap,” that inability to care about the people we don’t know or see.  Many of the examples are similar to what is found in Nudge, reviewed on this site.  The example that Trout uses that I want to discuss is the effectiveness of motorcycle helmet laws, and the relationship of such laws to paternalism.

As Trout writes, “In 2004, a total of 1,316 motorcyclists in the United States suffered fatal crashes.  Had all of them worn helmets, 671 of them would have been saved.”  Helmet laws have succeeded in “reducing fatalities by 15 percent in Washington and by 37 percent in California.” (J.D. Trout, The Empathy Gap [New York: Viking] iBooks)  The numbers are indisputable – there is no doubt that helmet laws would save lives.  But, as Trout himself further notes, many dispute the validity of helmet laws on the grounds that they violate human freedom.  Laws exist only to protect our liberty from one another, goes the argument, and the refusal to wear a motorcycle helmet does not injure the liberty of another.  Throughout the work, Trout rejects paternalistic social institutions.  After all, there’s a lot that we really want to do, but fail to do because of our universal cognitive limitations.  Thus, it’s not really paternalism when a social institution is helping us to do what we really want to do, such as saving for retirement.  But he really struggles to justify helmet laws as non-paternalistic.  I think that everyone can understand that not wearing a motorcycle helmet is imprudent.  But helmet laws are not merely helping me make a better decision like some of the other recommendations in the book.  Helmet laws require wearing a helmet, and if you disobey, you are punished.  That’s not helping you make a better decision, that’s making the decision for you.  This is what makes helmet laws paternalistic.  A non-paternalistic helmet law would allow me to have the option of not wearing a helmet but encourage me to attend to the fact that it’s a bad idea.

I am assuming here the justice of the argument against paternalism.  While we surely want to improve the conditions of our society, and work to realize our various values, we do so within the constraints of basic principles of justice.  I view the primary principle of justice to be that each person has a fundamental right to an equal degree of liberty.  Thus (to skip ahead in the argument), the society constrains us only in order that we may each enjoy the greatest possible equal liberty.  It’s a good model of justice that has sustained some branches of political philosophy since the Enlightenment, even if our actual societies fail to make the principle actual.  In any case, we can make laws to improve society within the limits of such a first principle, and paternalistic laws violate that principle.

Trout responds to the paternalism charge that the death of a helmetless motorcycle rider does not only affect the motorcycle rider.  The death of the rider means financial and emotional hardship for family and a burden on medical resources.  While true, this seems to me to be stretching the notion of an “effect” upon others.  It would seem ridiculous to say that other people need to be protected from my riding without a motorcycle helmet (I wouldn’t actually ride a motorcycle).

However!  Society can and does demand that the costs to society that people create by performing certain actions are “internalized”.  In economic parlance, benefits and burdens that are taken on by others are “externalities”.  So, when someone buys a car, the seller gets the money, the buyer gets transportation, but everyone else gets traffic congestion, pollution, and the suburbs, none of which the buyer is paying the rest of us for.  Since these are all costs to society, they are negative externalities.  Likewise, helmetless motorcycle riding is a cost in medical resources to society.  It seems only fair to ask those who create costs to bear them.  Hence, Arthur Pigou, the economist responsible for the concept of externality, recommended a tax structure that “internalize” costs back to the generator of such costs.  Thus, cigarette smokers bear the future costs of caring for their lung cancer when they pay taxes on cigarettes, drinkers pay for the damages of alcohol consumption by paying taxes on alcohol, etc.  Unfortunately, polluters do not yet have to pay for their pollution, nor financiers for the costs of speculation.  So-called “Pigouvian” taxes force the users of socially burdensome goods or services to pay for those burdens to the rest of us.

We can apply the same method to helmetless motorcycle riding.  One might reply that that’s exactly what a helmet law does – the fine imposed internalizes the cost of helmetless riding.  I would recommend a point of payment that does not involve legal punishment.  Instead, motorcyclists who wish to have the option of going without helmets can pay more for the probable burden of doing so when they pay their motorcycle license.  They would be given the statistics on the risks of helmetless motorcycling, written in a manner that makes the information most real to them, and receive a special mark on their license and license plate so that highway patrols know to leave them alone if the motorcyclists decides to go without their helmets.  Everyone else would be subject to the legally required punishment, and informed that they could pay more to not be required to wear their helmet.  Fines for illegal helmetless motorcycling and the fee for licensed helmetless driving would have to be adjusted so that one is not privileged over another.  This would better reflect the aim of decreasing motorcycle fatalities without paternalism.