Jeremy Bentham,choice architect: law,indirect legislation,and the context of choice

ABSTRACT

The goal of this paper is to locate indirect legislation within Bentham’s art of legislation, and to distinguish it, as far as possible, from direct legislation. Along the way, some parallels are drawn between indirect legislation on the one hand, and the Nudge theory of Thaler and Sunstein on the other. It will be argued that many expedients categorized by Bentham as indirect legislation are simultaneously exercises of direct legislation. Another set of indirect expedients act on knowledge, and involve efforts to eliminate asymmetries of information between potential offender and potential victim by providing official standards and disseminating a plethora of factual information. Other forms of indirect legislation threaten the coherence of Bentham’s theory of law, firstly by regarding all government actions as exercises in legislation, and secondly by turning the formers of public opinion into legislators. Insofar as some forms of indirect legislation operate by sleight of hand, they conflict with Bentham’s commitment to transparency in the exercise of public power, reflecting a tension between reality and appearance which runs through his thought.     

Publicizing insecurity,privatizing security: Chinese wholesalers' surveillance cameras in a Paris suburb (Respond to this article at http://www.therai.org.uk/at/debate)

Since the early nineties, several hundreds of Chinese immigrants have settled in what has become known as the ‘Chinese wholesalers area’. For the past two years, Chinese wholesalers in Aubervilliers have been calling on public authorities to address the problem of street robberies and violent thefts, which they experience on a daily basis. Yet, they have been encouraged by the authorities to ensure their own protection, by – amongst other things – installing surveillance cameras to film the streets. This is illegal according to French legislation on camera surveillance. Knowing this, why have surveillance cameras been adopted as a solution? This question guides the ethnographic analysis presented here of a situation where the installation of surveillance cameras was locally negotiated by the main actors involved – namely, the wholesalers’ representatives and the police.     

The Politics of Citizen Access Technology

This article uses comparative case studies to examine the political shaping of public Information utilities developed by American local governments. These public access computer networks are designed lo facilitate access to community information and dialogue. We view technology design as analogous to developing public policy on citizen participation, where the "legislation" is imbedded in the technological design. Research sites included three adopter cities, Santa Monica, Pasadena, and Glendale, California, and one nonadopter city, Irvine. This comparison highlights key technology-policy choices (including the choice of not developing this application). Our analysis then examines the role of technological paradigms, local political cultures, and organizational arrangements in shaping municipal approaches to addressing these key policy choices.     

Freedom of Information and Democracy in Australia and Beyond

Freedom of Information laws (FOI) throughout Australia have been routinely studied by law and media scholars. These authors have revealed widespread challenges to functioning FOI regimens, which range from government hostility to public sector restructuring to globalisation. Nevertheless, analysts have only begun to fully appreciate and explore the symbolism of FOI. Access laws are situated at the very heart of state and citizen relations, and they are especially sensitive to broader assumptions about citizenship and democracy. This paper aims to explore this sensitivity through a contextual examination that is as much about democratic theory as it is about access law. Many of the deficiencies outlined by various studies, it is argued, can be best viewed as a cluster of concerns that relate to one major problem – a lack of popular sovereignty. Australian and global democracy must be viewed and conducted in a more generally robust manner in order to strengthen FOI.     

Infrastructures of trust and distrust: The politics and ethics of emerging cryptographic technologies

The authors of this article are engaged in anthropological research on the links between the growing interest in privacy and data security as a technical field and how notions of trust, security and accountability are practised in and beyond technical fields of cryptography, specifically a field called multi-party computation (MPC). They pursue the relationship between trust in different forms of cryptography – academic and activist – and notions of trust as they are articulated in relation to data security and the protection of citizens’ data. There is a tension between the concerns raised in public debates about data security and the promises of emerging cryptographic protocols. In political speeches and public debates, citizens’ trust that governments and tech companies will protect their data is framed as important and essential. In the environments of emerging cryptographic technologies, such as blockchains, bitcoin and MPC, a promise to provide ‘trustless trust’ and abandon the need for trusted intermediaries, authorities and institutions is articulated.     

Did Waldegrave Work? The Impact of Open Government upon British History

The Impact of the waldegrave Initiative on Open Government uponBritish History is examined and placed within the wider frameworkof changes in Whitehall, which might be interpreted as a shifttowards transparency, or alternatively towards more sophisticated‘information control’. The areas of intelligencehistory, nuclear history and international history are examinedin detail and used to suggest that while their broad contoursremain largely unchanged, specific subjects that were once inaccessiblecan now be tackled. The mundane nature of some of the materialhitherto withheld for exceptional periods sheds light not onlyon the period that it documents, but also on the absurd andfantastical secrecy of the government in the 1980s, which continuedto keep eighteenth century records under lock and key, claimingtheir continued sensitivity. The workaday world of the DepartmentalRecord Officer is considered and found to be suffering badlyfrom the strains of under-resourcing The significant problemsthat are identified here, it is argued, will be exacerbatedby the arrival of Freedom of Information Legislation     

Crisis attack: Impromptu ethnography in the Greek maelstom (Respond to this article at http://www.therai.org.uk/at/debate)

Assailed by mounting debt and increasing economic distress, Greece today is also the target of media representations that emphasize violence and disorder. Michael Herzfeld – who was mugged and tear‐gassed in Athens this past July – argues that these representations are misleading and indeed are part of the problem they seek to explain. The structural violence of an insistent barrage of negative media coverage as well as that of international financial pressures undermines a previously stable and relatively crime‐free country, encouraging new forms – including police and popular racism, physical violence at demonstrations, and acts of petty crime – of what had once been a largely codified and ritualized idiom of aggression. While many Greeks do feel that debts should be paid, increasing economic desperation fuels a different view, and one that can best be interpreted in light of the social values that anthropologists have long studied in Greece: that the country's creditors are violating their own obligations toward Greece and thus deserve to face both default on the massive debt and the public hostility of the Greek people.     

Khat: Chewing on a bitter controversy (Respond to this article at http://www.therai.org.uk/at/debate)

When the slender green succulent leaves of the khat tree are chewed, a mild natural amphetamine called cathinone is gradually released, and absorbed into the bloodstream through the mouth and cheek tissues. The effects, which last for several hours, include the softening of one's temper, increased gregariousness, and a piqued sexual appetite, while at the same time inhibiting hunger, anxiety, and feelings of fatigue. In the Arabian peninsula and the Horn of Africa, where khat is autochthonous, men have been chewing it recreationally for hundreds of years. Khat chewing has recently burgeoned to a global and pointed controversy, however, featuring in academic ethnopharmacology journals, the official publications of neoliberal development organizations, and worldwide in popular news media outlets. Khat has thus received multitudinous accusations of it being: an obstacle to economic growth; a pernicious narcotic; a positive mediator of political discourse in the public sphere; a public health concern; and a barrier to national development. Of these ambiguous tensions, Klein et al. (2012: 1) say that ‘Khat provides a unique example of a herbal stimulant that is defined as an ordinary vegetable in some countries and a controlled drug in others’, fingering khat as an exemplar of a globally contested object of concern – constituting different political stakes when viewed from distinct situated perspectives – and ready prey for anthropological critique. This essay interrogates some of the divergent formulations that khat has taken across the distinct political arenas that orchestrate the ‘controversy’. Following a Latourian actor‐network approach, I argue against a universal ontology of khat, suggesting instead that khat might be more meaningfully traced and apprehended through the political work it achieves in its various contexts and situated deployments. This critical reading of khat as a ‘thing in movement’ should therefore speak to the anthropology of controversy more broadly.     

‘Get me out of here’: Bail hearings of people indefinitely detained for immigration purposes (Respond to this article at http://www.therai.org.uk/at/debate)

This article is based on observation of 66 applications for bail brought by men detained indefinitely for immigration purposes. It argues that although the research is incomplete – the full stories of the applicants could not be known, neither the Home Office Presenting Officers nor the Immigration Judges could be ‘shadowed’ or even interviewed, court records are not public – there is value in doing ‘observation’ without ‘participation’ of institutions which act in the name of the public. This research shows that the outcomes of bail applications are not, as the public might imagine, always fair and unequivocal. All too often, they look like ‘the luck of the draw’, bringing the institution and its presiding officers into disrepute. The article illustrates this point using ‘dialogues’ from two bail hearings where the same applicant appeared before two different judges, with very different outcomes.     

Audiovisual laws and legal intervention in South American cinematic culture

In South America, various state organizations have an investment in producing some kind of ‘national’ cinema. Although different countries around the world have varied levels of government involvement, the four countries I would like to examine – Argentina, Bolivia, Chile and Peru – can be drawn upon for their similarities and the shared regional context in which their policies operate. Particularly important is the fact that an increase in government involvement and support has been taking place in the twenty‐first century against predictions that enhanced global capital would weaken the function of the state. Furthermore, it is frequently the case that policy, in the form of government regulation and funding, provides the only means for cinema’s continued existence, visibility and access to the public and thus cannot be underestimated. Complicating these factors is the fact that while legislation is in place, government bodies often struggle to implement the policies in a practical manner. This article examines these issues and suggests the effect they are having on the cinematic culture of the region.     

Public anthropology and the financial crisis (Respond to this article at http://www.therai.org.uk/at/debate)

When anthropologists write about finance and the economy, their publications seldom reach audiences as wide as those of economists or journalists. Is there a space for anthropologists in public debates about our era's acute economic dilemmas? The short answer should be yes, partly because anthropologists are trained to probe social silences and make the invisible visible, and because we reject the pitfalls of Econ 101, oversimplifications that pervade public discourse. Academic anthropologists can draw lessons from what we might term ‘public economics’, as well as from the writings of Gillian Tett, an award‐winning financial columnist trained in anthropology. Perhaps we can also learn a little from tricksters – or from satirical activists who deploy irony, caricature, and paradox as sharp instruments in this age of austerity and billionaires. As we analyze finance and the economy in the aftermath of a financial meltdown whose causes and policy implications are intensely debated, our challenge still is to satisfy journalists' appetite for sound‐bite narratives without sacrificing nuance, historical contingency, and complexity.     

Masculinity and the mic: confronting the uneven geography of hip-hop

This article explores the uneven gendered geographies of rap music. It argues that Black men's blocked access to culturally dominant masculinity, vis-à-vis access to public space – and the resulting containment of Black men within Black communities – has produced an overly compensatory form of masculinity, for which access to and control of the public domain within Black communities is essential for access to hegemonic masculinity. Rapidly declining economic opportunity has meant that young Black men thrown out of work put their talents, time, and energy into an emerging youth culture brewing in parks, on street corners, train stations, and viaducts in places such as the South Bronx. The early innovators of the hip-hop movement used this new art form to remake the public space of the abandoned, segregated, and spatially disempowered Black neighborhoods they lived in. It was in this context that the link between masculinity and rap music was established. I conclude by providing an example of how Black women have found ways to break the link between masculinity and the mic by creating spaces where they can confront and remake the uneven geography of hip-hop, restoring hip-hop's radical spatial potential.     

Reform in Turkey: Liberalization as government and critique (Respond to this article at http://www.therai.org.uk/at/debate)

Turkey is in the midst of a wide‐ranging reform of historic proportions, the most profound reorganization and restructuring of institutions and practices since the foundation of the Republic in 1923. These reforms, inspired and guided by the country's EU integration, are multifaceted but can be summarized as liberalization of economy, politics and society. While capitalist penetration and privatization are obvious features of the reform, its techniques, kinds of knowledge and objects, as well as its reflexive aspects – the ways in which it studies itself unfolding – have not been sufficiently conceptualized.     

Indirect legislation: it is just a question of time

ABSTRACT

This paper focuses on unveiling the underlying conceptions required to elaborate a concept such as indirect legislation, and on possible methods of distinguishing it from direct legislation. Three elements will be put to the test to analyse whether they could be used as distinguishing criteria. Firstly, indirect legislation – like contemporary forms of indirect means to influence behaviours, such as the famous nudges of Thaler and Sunstein – relies heavily on an accurate and complete account of human nature. However, so does direct legislation. Having human psychology as a foundation for legislation leads to several epistemic and evidential issues. Secondly, temporality seems initially to be a likely candidate for the sought for criterion: direct legislation, through punishment, applies after the offence, whereas indirect legislation applies before the offence, precisely in order to prevent it. However, I will show that this understanding needs to be revised. Thirdly, the solution to the difficulty might lie in resolving the issue of what is really the target of influence: what is it that indirect means attempt to modify. At the end of this paper, I will show that the difficulties faced both by Bentham and by contemporary nudge theory seem to imply that a complete re-evaluation of indirect means to influence behaviour is needed.     

Peeing under surveillance: bathrooms,gender policing,and hate violence

The experiences of trans and gender non-conforming people in public restrooms confirms what feminist scholars have been saying for decades: public space is not a neutral space, rather it is where power is enacted. In this intervention, I extend Foucault’s analysis of docile bodies to gender, suggesting that sex-segregated bathrooms are technologies of disciplinary power, upholding the gender binary by forcing people to choose between men’s and women’s rooms. The resulting lack of safe access to public restrooms is an everyday reality for those who fall outside of gender binary norms. Faced with a built environment that denies their existence and facilitates gender policing, I argue that trans and gender non-conforming people sometimes engage in situational docility. Bodies are adjusted to comply with the cardinal rule of gender – to be readable at a glance – which is often due to safety concerns. Changing the structure of bathrooms to be gender inclusive and/or neutral may decrease gender policing in bathrooms and the need for this situational docility, allowing trans and gender non-conforming people to pee in peace.     

The Medical Periodicals of J.C. Tode and the Idea of Public Health

In 1770 ‘Den medicinske Tilskuer’ (The Medical Spectator) was published in Copenhagen. The man behind it was the surgeon, physician and poet Johann Clemens Tode. This was the first of 16 journals in total on health and medicine that Tode was to write, edit and publish until his death in 1806. With his journals, Tode contributed significantly to making health a public issue. This implies conceptualizing health and medicine as reaching beyond the private sphere and individual lives, to rather concerning society at large. To understand the late 18th century, it is equally important to see that the idea of ‘public health’ also implies the existence of a public sphere. The article argues that Tode’s journals contributed to the making of such a public and that he did so by addressing its health. It investigates how the readers and – more generally – the public were staged and produced in Tode’s medical periodicals. The object of investigation is not primarily the medical advice given by Tode as much as the way it is given, the figures or personae that it is given to and the public that it helped to create.     

A game of risk: Boat migration and the business of bordering Europe (Respond to this article at http://www.therai.org.uk/at/debate)

Largely in response to irregular migration flows, a Euro‐African border is under construction at the southern edges of Europe. The latest phase in this ‘borderwork’ is a system known as Eurosur, underpinned by a vision of a streamlined surveillance cover of Europe's southern maritime border and the African ‘pre‐frontier’ beyond it. Eurosur and other policing initiatives pull in a range of sectors – from border guards to aid workers – that make the statistically small figure of the irregular border crosser their joint target. To highlight the economic and productive aspects of controlling migratory flows, I call this varied group of interests an ‘illegality industry’. Casting an eye on the Spanish section of the external EU border, this article investigates how the illegality industry conceptualizes migrants as a source of risk to be managed, visualized and controlled. The end result, it is argued, is a ‘double securitization’ of migrant flows, rendering these as both a security threat and a growing source of profits.     

Access to the Information Age: Fundamental Decisions in Telecommunications Policy

As federal and state budget sheets show more red than black ink, the private sector is delivering more social services and even protecting rights. The experience of disability rights leaders during the past five years shows that the private sector will accept such obligations as long as the burden is evenly distributed throughout an industry. They will balk if it is not. The task of ensuring access and fairness for people with disabilities in an industry where equal allocation of social responsibility is difficult is illustrated by the continuing effort of disability rights leaders for accessibility to Information Age telecommunications products and services. The effort also highlights a recurring theme in public policy: Does equity mean that all Americans pay a little more so that those with disabilities gain full access, or does it mean that overall rates are kept low while those with special needs use adaptive devices? Each point of view was illustrated in the telecommunications policy debate of the 102nd Congress-and likely will shape that of the 103rd Congress as well.     

Universal Access for Universal Value: Creating Disabled Access at Heritage Sites for those with Mobility Impairments

Abstract

In today's society it is recognized that all people, regardless of disability, should be welcomed at heritage sites. As mobility impairments are one of the most common types of disability faced by visitors to heritage sites, this study will look at how the changing views on disability discrimination have affected heritage sites by reviewing current legislation and comparing it with visits to heritage sites in the UK and the US. For this purpose, site visits looking at adaptations for mobility impairments were carried out at fifteen sites in the UK and six sites in the US. There are additionally three case studies: a comparison between a UK and a US early nineteenth-century naval vessel, a site with traditional adaptation methods, and one that has creatively designed access. Overall, both the UK and the US have adopted similar methods for creating disabled access. Yet, the research shows that although many sites have designed some type of access, there is no conformity as to how this access is achieved. In addition, many sites use the loopholes in legislation to ensure that little is changed in the physical material. In the end, it is evident that more must be done to find a compromise between accessibility and preservation.     

The Gaza Freedom Flotilla: Ethnographic notes on ‘othering violence’ (Respond to this article at http://www.therai.org.uk/at/debate)

This narrative recounts the events that unfolded around the Gaza Freedom Flotilla as witnessed by an anthropologist invited onboard one of its ships. It shows a pervasive preoccupation of neocolonial states with Othering violence. This is defined as the ability to transform spaces of liberation and solidarity into spaces of deviation and imprisonment. The choice to be an outspoken participant‐observer opens up novel spaces for reflection and research otherwise left to the sensationalist tendencies of journalism and the propaganda machinery of states. Moreover, acting as witnesses to events such as these, in our professional academic as well as in our personal capacity, could also be a last line of defence against expanding Othering violence.