NUDGE – Extralegal normativities and public policies

Malik Bozzo-Rey, Lecturer in Economic Ethics and Philosophy of Management at Lille Catholic University, Honorary Research Associate University College London

Guillaume Tusseau, Public Law Professor at the Sciences Po Law School (EA 4461)

Through this project, we set out to analyze the emergence of new forms of normativity, whose distinctive features are a) their extralegal and non-coercitive nature, b) their influence on individual behavior. Far from being insignificant, this kind of normativity is increasingly taken into account in the drafting of public policies and the analysis of the interaction between individuals and social, political and economic institutions. The concept of « nudge » (Sunstein & Thaler, 2008), which consists of shaping individual decisions without coercion, best exemplifies these new normativities. Our aim is to understand the sources, the conceptual framework and the practical implications of this new normativity.

Three axes of research have been chosen:

1. Genealogy. The « indirect legislation » at the core of extralegal normativities

The first axis of our research is a genealogy of the « nudge » concept. In this respect, the extensive study of what Bentham calls « indirect legislation » is doubly innovative. In the first place, few Bentham scholars have tackled this question (Engelman 2003, Laval 2006, Bozzo-Rey 2011, and Brunon-Ernst 2012); secondly, no one has hitherto sought to understand the possible links between the concept of indirect legislation coined by Bentham in the 1780s and the more recent concept of nudge. What Bentham calls indirect legislation is a way of shaping behaviors without resorting to penal sanctions – in other words, Bentham tries to conceive of an extralegal normativity that would have effects equivalent to the former without sharing its main drawback – that is, the pain resulting from punishment (Bentham 1802).

The concepts of indirect legislation and nudge nonetheless have a lot in common. First, they both sustain a reflection on how to best influence the behavior of individuals in a society, and how to draw up public policies. Furthermore, they both testify to an interest in the structure of individual practical reasoning. Finally, in both cases, beyond the architecture of choice, these concepts have problematic implications in respect of individual freedom, and, by the same token, of potential choice manipulation that could arise from them (Rebonato 2012 and White 2013). They could even reveal some contradiction in Bentham’s work (Laval 2011).

This genealogy work requires both reasearch and edition/publication activities.

This is because the only available text in which the theme of indirect legislation is developed is the last part of the Principes du droit pénal, that are to be found in Bentham’s Traités de législation civile et pénale edited by Etienne Dumont in 1802 (then back-translated for the Works of Jeremy Bentham edited by John Bowring in 1843). The works of the Centre Bentham (see 2010 in particular) which draw on the editorial principles established by the Bentham Project (UCL, London), have shown the necessity of relying on Bentham’s manuscripts in order to avoid interpretation errors of the XIXth century manuscripts (Dumont and Bowring). One aim of this project is thus to make the first complete edition and scientific translation of Bentham’s works on indirect legislation. This work, which was conceived by Bentham as the continuation of his masterpieces, the Introduction to the Principles of Morals and Legisalation (first translation in French in 1996, second in 2010) and Of The Limits of the Penal Branch of Jurisprudence (2010), could thus be appreciated to the full.

This point is important, and leads us to think that Bentham’s indirect legislation can be considered as a device for social control only insofar as its purpose is to create a normative framework circumscribing the field of the actions potentially accomplished by an individual. This purpose will be fulfilled exclusively by means of prevention and by the identification a priori of a norm. While this concept of indirect legislation gives us a new and original understanding of social and political dynamics, it is nonetheless imprecise and requires the use of more specific tools that are to be found in contemporary academic works.

2. Concepts. The « new normativity » tools  – nudge, choice architecture and incentives

This second direction of research includes the most fruitful contemporary developments of Bentham’s approach. They will allow us to complexify the analysis of what Bentham saw as methods of indirect behavioral modification.

Many of these contributions come from contemporary behavioral economics, which have highlighted the limits of ”rational” individual choices in terms of health, diet, personal finance, etc. Largely drawing on these works, Cass Sunstein and Richard Thaler have set out the terms of a « libertarian paternalism » which justify the implementation of measures seeking to shape individual behavior through the use of « nudges ». Nudges are « soft » techniques influencing individuals’ decisions by inciting them to take « better » decisions. In reality, these measures seek to modify the architecture of individual choices by strongly inciting people to take the choice that is best for them, without, nevertheless, forcing them to do so (Sunstein and Thaler, 2008). According to the authors, this approach leads to a satisfactory compromise between improving individual decision-making and preserving individual freedom.

In this second part of our research, we seek to identify and map the main concepts at work in these developments. The use of concepts such as « libertarian paternalism », « architecture of choice », and « incentives » in the scientific literature is somewhat obscure. Further, we wish to understand the scope and limits of such a model, which draws very largely on the development and impact of behavioral economics. One part of this second aspect will be to evaluate the way in which these works redefine our main theories on the building of public policies, the design of economic market structures and the management of (private and public) organisations.

Finally, using Ruth Grant’s innovative work on « the Ethics of Incentives », we will question the normative criteria marking out the legitimate use of these attempts to shape individual behavior (Grant 2012). Grant suggested rightly that although one advantage of nudges and architectures of choice manipulation was that they were non-paternalistic modes of behavioral modification, they could nonetheless represent forms of power the legitimacy of which raises problems. In what conditions is extralegal social control legitimate? In other words, how should we design legitimate public policies that rely on and sustain this type of normativity ?

3. Application. A new device for designing public policies?

In this third axis of our research, we will explore the concrete implementation of nudges and choice architectures in specific public policy fields (health, environment, education, economy). These government techniques which orient individual behavior without coercively doing so, are presumed to be applicable in many fields, from health insurance to the struggle against global waming, including personal finance management, obesity, organ donation or retirement. We will cross-examine the contributions of the sociology of public action and ethics, and try to coordinate their results.

First, as part of a cognitive sociology of public policies (Hall, 1993 ; Jobert and Muller, 1987 ; Sabatier and Jenkins-Smith, 1993) which views ideas as exogenous variables explaining public action, we will study the role of the behavorial theories at the heart of these governance devices and evaluate their influence on the adoption of empirically observable policies. In this regard, the influence of Cass Sunstein (appointed administrator of the Office of Information and Regulatory Affairs in 2008) on Obama’s first administration, and that of Richard Thaler on the Nudge Unit set up by David Cameron in Great Britain, are model case studies.

These concepts will be analyzed in the light of another perspective, that of the sociology of public policy instruments. This approach, linked to the work of Max Weber on the modes of action of the Modern State and that of Michel Foucault on the technologies of power, is used by Christopher Hood, Lester M. Salamon, Pierre Lascoumes and Patrick Le Galès. It leads us to three questions :

  1. the nature of nudges : do they belong to the category of procedural or incentive policies mapped by Theodore Lowi’s famous typology ?
  2. the nature of State normativity : does the increasing resort to these non-coercive instruments reveal a new shift towards a « propulsive state » (« état propulsif », Morand, 1991) a “leader” state (« animateur », Donzelot 1994) or, more commonly, a regulatory state  (« régulateur», Majone, 1996)?
  3. the axiology of nudges : it should be recalled that such instruments  « are not tools with perfect axiological neutrality, equally available » (Lascoumes and Le Galès, 2007, p.4). It is because they have a political dimension that can be understood by studying the justifications given by their users, and the perceptions of the world that they are liable to bring about (Linder and Peters, 1989 ; Salamon, 2002).

To sum up, the genealogy work analyzes the contemporary concepts in the light of an inquiry on the different types of normativities at work in the constitution of modern political societies. The conceptual work aims to put to the test the efficacy and efficiency paradigmatically linked to the legal norm, and to propose concurrent tools in order to renew the normative approaches. Supplied with these conceptual tools and links, it is then possible to design and propose new modes of public policy creation that would lead to questioning of the very nature of the State, and the status of the norms which it gives birth to.