In Free Markets and Social Justice, Cass Sunstein highlights further problems with a general assumption of rational and free choice. He argues that “modern government has no concern with souls” and that “people are taken as they are, not as they might be.” Further, “self-interest, not virtue, is understood to be the usual motivating force of political behavior.” As such, “the goal of the polity is quite modest: the creation of the basic ground rules under which people can satisfy their desires and go about their private affairs” and that “respect for private preferences, rather than the collective deliberation about public values or the good life, does seem to be the distinguishing feature of American constitutionalism.”
Sunstein calls into question this notion of private preferences and argues:
… choices are a function of prevailing social norms and hence of context, which can activate particular norms. If you are a certain group you may well choose a drink of Perrier over a Coca-Cola, or vice-versa, because of local practices. You may purchase an American car, or not, because of existing norms in your community. For this reason, a choice of one good over another may tell us very little about further choices unless we know about the motivations and context of the choice.
Sunstein maintains that under such conditions the notion of autonomy is really an illusion as “many preferences are a result of social norms and conditions that make them far from autonomous.” He further argues that “the notion of autonomy should refer instead to decisions reached with a full and vivid awareness of available opportunities, with reference to relevant information, and without illegitimate or excessive constraints on the process of preference formations.” Consequently, “governmental interference with existing choices or desires may be justified because of the problems in the origins of those desires.” Democracy then “is to ensure autonomy not merely in the satisfaction of preferences, but also, and more fundamentally, the process of preference formation.” In a free society, “people should not face unjustifiable constraints on the free development of their preferences and beliefs.” Sunstein finds himself very much in agreement with John Stuart Mill who argued that it is better to be Socrates dissatisfied than a fool satisfied.
I fundamentally reject Sunstein’s position. Sunstein is correct to point out that human beings make irrational choices and are very much influenced by what he calls “context.” However, to suggest or merely imply that preferences formed “with a full and vivid awareness of available opportunities” are the only valid or legitimate or morally binding choices is absurd. Who, among even the most intelligent, educated, and privileged human beings can make a choice or form preferences with such an awareness? Are we to disregard the preferences of the young because they lack the wisdom and experience of the elderly? Are preferences formed at Yale or Harvard more valid than those formed at a technical vocational school? Is my preference for philosophy and ethical thought more important than another’s preference for the WWF or Monday Night Football? No. Each person’s preferences, and in particular how those particular preferences impact the emotions, well-being, and perceptions of individuals have value in themselves. Pleasure, happiness or contentment cannot be measured by a scale outside oneself. Thus, it is unjust first to assume that we know what is “best” for another person and second, to attempt the implementation of our faulty assumptions.
Sunstein, along with Mill, Socrates and many others, offer a dangerous paternalism which devalues the choices, preferences, and experiences of all human beings. As mentioned above, Mill dogmatically claims that Socrates dissatisfied is better than a fool satisfied; but to whom? A fool who is free to be a fool and pursue those things which create contentment within him or herself is equal to Socrates in a state of contentment. While the circumstances and “context” of the fool and Socrates may vary greatly, each has the ability to pursue conditions which lead to an internal contentment. It is this internal contentment which has value in itself.
Let us consider a less extreme example and one which has implications for contemporary society. A liberal protestant Christian who has been exposed to advanced forms of biblical criticism and who has adopted a non-literal form of faith may have contempt for his or her evangelical counterpart who maintains a more literal view of the Bible. Such a person may view literal faith as juvenile, unsophisticated, and without true meaningful value. Yet, if that literal faith creates within its adherent a sense of contentment and well-being is it any less valuable than a more sophisticated and liberal faith? No.
Of course, we see conflict when individual conceptions of contentment and the pursuit of happiness, as it were, oppose and challenge one another. The true brilliance of the social contracts as presented by Locke, Hume, and Rawls is that they each sustain and promote the value of the individual and the sovereign exercise of their faculties. In a functioning social contract, such differences and conflicts can be discussed and negotiated as the particular terms of the contract and the means necessary to facilitate societal conflict ebb and flow over time.
I do not wish to completely discard Sunstein’s observations as he is absolutely correct in his contention that context is a necessary component to any discussion of just policy. However, we must not adopt Sunstein’s form of paternalism and assume that we know what is “best” for others. Rawls is correct in arguing for “equality of opportunity” and not equality itself. Human beings must be allowed the autonomy to pursue their own individual conceptions of the good and find contentment and happiness therein. In fact, one characteristic of just policy may be that it allows for maximum human autonomy within the context of the greater social sphere.
Thus to summarize: We must be concerned not only with individual perceptions of justice but also with the actual circumstances and the context which create these perceptions. Just policy seeks to educate and enable the autonomy and sovereignty of individuals. However, such efforts to educate and enable must not become paternalistic because by so doing, they may create or perpetuate perceptions of injustice – thus invalidating and eradicating any progress which said paternalism may have originally hoped to achieve. Of course, these are not principles which can be argued with absolute certitude and my hope is that these distinctions will not be viewed as a dichotomy or as a choice of either/or. Rather, what I have presented here represents a continuum of choices which must be considered part of a holistic approach to public policy.
 Cass R. Sunstein, Free Markets and Social Justice (New York, Oxford: Oxford University Press, 1997).
 Ibid., 13.
 Ibid., 14.
 Ibid., 16.
 Ibid., 19.
 Ibid., 20.
 Rawls, in his later work argues along similar lines as Sunstein and in this I believe he oversteps. However, the principles of equality of opportunity and difference in justice as fairness seem to me to inherently support this notion of individual autonomy.
 The true danger to a social contract is the breakdown of what one writer has termed a “full and free discourse.” See:Franklin I. Gamwell, Politics as a Christian Vocation (Cambridge: Cambridge University Press, 2005).
Also: Robert Wuthnow, Christianity and Civil Society (Valley Forge: Trinity Press, 1996).