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  • Back to the sources of nudges*
  • Anne Brunon-Ernst (bio)

Nudges1 are becoming an increasing part of the daily lives of individuals, consumers and citizens.2 They have problematic implications in respect to individual freedom, autonomy, and, by the same token, of potential choice manipulation that could arise from them.3 There is therefore a vital need both to understand the workings of these tools based on human psychology, and to determine whether they are legitimate interferences in individual choices. All around the world academics, but also politicians and journalists join in to try work out an assessment of nudges.4 The present paper wishes to contribute to the debate in presenting an intellectual history perspective (as opposed to psychology, economics or behavioural sciences which are often used in discussions on nudges) on these new regulatory instruments. It is not the purpose of the present paper to look at the influence of philosophers in the shaping of nudges, as indeed the notion of influence is difficult to trace; and as nudges certainly owe more to the development of psychology and to the application of behavioural insights to economics than to philosophy. [End Page 99]

This is not to say that the idea of some degree of philosophical heritage in nudges is not generally acknowledged both by academics and in the media, as in the case of J. S. Mill.5 However, I contend that, in most of these cases, philosophers are used with strategic rather than exegetic purposes.6 There is an urgent need to put the theoretical underpinnings and the pragmatic implementation of nudges into perspective, and to draw the lessons from such an experiment.

I will not look into J.S. Mill’s heritage, but into that of the British philosopher and legal reformer Jeremy Bentham (1748–1832). Indeed Bentham’s concept of indirect legislation is particularly relevant to our discussion here. At the beginning of the industrial revolution, at a time when changing work relationships required a new organisation of society, Bentham was at the forefront of the reflection on new forms of regulation. He will be remembered for his Panopticon schemes (which started out as a Russian factory under the supervision of his brother Samuel, before emerging as the notorious, though never built, panoptic prison), but also his Constitutional Code. The interest of academics in Bentham’s investigation of alternative forms of regulation first arose in the wake of the Bentham-Foucault debate on biopolitics,7 which highlighted the pivotal importance of Bentham’s legal and non-legal forms of regulation encapsulated in the concept of indirect legislation.8 Following the work of Michael Quinn, the time has come to present a more balanced view of the mechanisms offered by indirect legislation. A more subtle picture is now emerging of a regulatory system which offers new and unmapped forms of regulation which are both legal and non-legal.

First, I suggest we look into the meaning of indirect legislation, trying to draw the line between this form of regulation and its converse, direct legislation (Part II). Second, I highlight the similarities between nudges and some types of indirect legislation (Part III). Lastly, I see how the lessons Bentham draws from his experiment with indirect instruments could contribute to the nudge debate (Part IV).9

The goal of my intellectual history perspective on Bentham’s theory of social regulation is two fold. First, contrary to contemporary contentions,10 I wish to prove that nudging is far from a new phenomenon, as it had been theorised at the end of the 18th [End Page 100] century. Second, Bentham’s ‘nudging’ features of indirect legislation were embedded in a utilitarian world-view where publicity was key to fighting government misrule and securing lasting aggregate happiness. An intellectual history perspective aims to contribute to a reappraisal of nudges’ legitimate role in government policy.

In view of the fact that the normative labels, nudges or choice architecture will be discussed throughout the present paper, it seems advisable at the outset to settle the meaning of these terms in the arguments which follow. There are no standard definitions, as most writers have made up working definitions (or modified them) to...

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