In a number of recent publications, Cass Sunstein and Richard Thaler have argued for a novel approach to the design of public policy. Their proposal has received a great deal of attention, both within academic circles and the public at large. Drawing upon evidence from behavioral economics and empirical psychology, the authors attempt to demonstrate that the conventional antagonism between libertarians and paternalists within political theory dissolves in conditions that obtain widely in public decision-making. Where free choice and the promotion (...) of individual welfare can coexist, the authors believe that designers of public policy ought to be libertarian paternalists. In this paper I criticize their proposal on grounds that the authors are unable to sufficiently motivate the paternalistic element of their approach. I argue that the empirical evidence cited by the authors is capable of supporting a number of competing approaches, including what I call libertarian utilitarianism and libertarian justice. Since the evidence that the authors draw upon does not provide us any grounds for selecting between these rival approaches, I conclude that Sunstein and Thaler are unable to provide us with a convincing guide for the design of public policy. In order to show that this is the case, I consider three arguments in favor of libertarian paternalism, and find each lacking. I end with some comments about what we can properly conclude on the basis of Sunstein and Thaler’s arguments. (shrink)

This article responds to Nir Eisikovits’ recent book Sympathizing with the Enemy: Reconciliation, Transitional Justice, Negotiation (Martinus Nijhoff Publishers, 2010).

This article reviews three books written by Larry May concerning the foundations of international criminal law: Crimes Against Humanity: A Normative Account (2005), War Crimes and Just War (2007), and Aggression and Crimes Against Peace (2008).