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.     

‘The invisible chain’: Jeremy Bentham and neo-liberalism

ABSTRACT

Bentham's thought cannot be reduced to the usual oppositions between ‘natural freedom’ and government interference. For Bentham, freedom in a political society is determined by the existence of a legal system that creates obligations for some people and rights for others. The government's task does not directly consist in respecting a sacred natural right, but aims at producing the ‘arrangements’ that are to direct the interests of the greatest number towards beneficial goals for the community as a whole. The legislator is to know, form and guide the individual interests. For this purpose, he has to summon public opinion in order to control individual action. On this point, we should reiterate, contrary to what Michel Foucault contended, that the main form of power in modern society is not exerted by a central state, but by each individual on others. That is the meaning of a very important idea in Bentham's theory, which appears in his writings on indirect legislation under the metaphor of the ‘invisible chain’. The habit of watching and judging others in the permanent Public Opinion Tribunal is the best way to learn self-discipline. Bentham's ideal is the self-government of individuals by the calculation of pleasures and pains.     

Nudges and the limits of appropriate interference: reading backwards from J.S. Mill’s harm principle to Jeremy Bentham’s indirect legislation

ABSTRACT

The starting point of the present paper is the nudge phenomenon. The most disturbing element of nudge is its potential for individual manipulation, that is, for relying on initiatives that go beyond the acceptable limits of interference in individual choice. This feature is not ignored by nudge advocates, who discuss it extensively to justify the overriding benefits of such initiatives. In this discussion, they acknowledge the seminal importance of J.S. Mill’s harm principle, which is introduced in On Liberty. Academics without hidden agendas must look into Mill’s theories from an intellectual history perspective and study to what extent Mill’s harm principle lends support to the interference of government and society in private lives. This paper first unveils some contradictions in the interpretation of Mill’s harm principle in order to show that it is an unlikely source of philosophical justification for nudge proponents. The paper argues further that Mill was familiar with Jeremy Bentham’s writings on indirect legislation, presented in the Traités de legislation civile et pénale. It pinpoints elements of indirect legislation that are discussed by Mill in On Liberty, without ever naming them as such. The paper contends that Mill’s presentation of the harm principle can be read as a discussion with Bentham in relation to the appropriate limits of government intervention in people’s lives. This double reading of Mill and Bentham through the lens of indirect legislation makes it possible to pinpoint the main differences between the authors as regards the appropriate degree of government interference. Bentham’s theories appear to be a more appropriate source of philosophical justification for the use of nudges than Mill’s harm principle.     

Society as a Code: Bentham and the Fabric of Order

The essay argues that Jeremy Bentham played a major role in the transitional process between the eighteenth and the nineteenth centuries leading to the ‘discovery' or ‘invention of society' as an order, i.e., as an autonomous object of knowledge. By comparing Bentham's discourse with those developed by select protagonists of that transition, particularly Ferguson, Sieyès, and Mirabeau, it is shown how society emerges as the logical and historical space of a set of relationships that affects both the rationalisation and the practice of government. In contrast with Michel Foucault's interpretation of Bentham's role in the genealogy of neoliberalism, recently developed by Pierre Dardot and Christian Laval, this paper suggests that ‘the new governmental reason’ rose from within the discourse of law. Consequently, the problem of ‘constitution’ was not left behind by the epistemological change of the eighteenth century, as they argue. Rather, the scientific and political understanding of society as a code became the base for an innovative conception of both law and politics.     

Bentham on asceticism and tyranny

In the late 1810s, Jeremy Bentham wrote a set of texts entitled Not Paul, But Jesus, arguing against the religious authority of St. Paul, and the principle of asceticism he propagated. This paper argues that Bentham’s critique of the principle of asceticism was not only or primarily a religious one, but a political one. Bentham objected to the principle of asceticism because it could be used to provide practical and ideological support for tyranny. The principle of asceticism, as a principle which repudiated common pleasures, provided a ‘cloak’ for tyranny, in giving rulers a reason to establish laws which penetrated further into the everyday activities of men and women (than would have been justified under the principle of utility), and so enabled them to increase their power over their subjects. The principle of asceticism also enabled rulers to create the conditions of fear and social isolation, which encouraged obedience to their laws. The Not Paul texts and related writings can be read as an extended argument against the principle of asceticism as a political principle, and as a defence of common pleasures.     

Agamben and the Migrations of Glory

Abstract

In the American political imagination, there is a longstanding and wide-ranging discussion about the separation of church and state. Though Americans argue about whether it should be a ‘‘high wall,’’ or whether certain ‘‘breaches’’ in it might be desirable, they all take ‘‘separation’’ to describe an institutional arrangement. From Giorgio Agamben's perspective, however, ‘‘separation’’ is an image that conceals much more than it reveals about the religious character of the state and the global economy. Agamben traces ‘‘the migrations of glory’’ from church, to state, to global capitalism. For part of this task, Agamben accepts Michel Foucault's diagnostic approach to power. By one reading, certainly, governmentality has us in its grip. But now government itself is overshadowed by the power of global capitalism. While Foucault sought only to make us ‘‘a little less governed,’’ Agamben is interested in a deeper iconoclasm and a greater emancipation. According to Agamben, our less-than-free condition can be illuminated by reflection on: (1) the state of exception and the camp, which are only made possible by a form of idolatry in which the sovereign assumes to themself a power that they should not have; (2) On another of the ‘‘maps’’ drawn by Agamben, however, there is a further ‘‘migration of glory,’’ away from national sovereignty, toward postmodern global capitalism; (3) The Coming Community provides the barest sketch of Agamben's hope for a remedy, while his reading of Paul's Letter to the Romans in The Time that Remains brings a more visible kind of messianic expectation or vocation back into the discussion of political life. A concluding section discusses five sorts of questions that might be put to Agamben about the overall shape of his project.     

Historiographical Foundations of Modern International Thought: Histories of the European States-System from Florence to Göttingen

Summary

The foundations of modern international thought were constructed out of diverse idioms and disciplines. In his impressive book, Foundations of Modern International Thought, David Armitage focuses on the normative idioms of natural law and political philosophy from the Anglophone world, from Hobbes and Locke to Burke and Bentham. I focus on parallel developments in the empirically-oriented disciplines of history and historiography to trace the emergence of histories of the states-system in the Italian- and German-speaking worlds, from Bruni and Sarpi to Pufendorf and Heeren. Taking seriously Armitage's remark that ‘the pivotal moments in the formation of modern international thought were often points of retrospective reconstruction’, I argue that the historical disciplines supplied another significant intellectual context in which the modern world could be imagined as ‘a world of states’.     

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.     

Human rights,domestic politics,and informal agreements: parliamentary challenges to international cooperation on migration management

ABSTRACT

Developed and developing countries are increasingly cooperating on migration management, and human rights NGOs have harshly criticised these instruments for cooperation. This article asks how and to what extent parliaments are challenging policies for international cooperation on migration management. On the one hand parliaments have traditionally been described as ‘moral tribunes’ in international relations, due to their principled support for human rights. On the other hand, parliaments are increasingly operating in political systems marked by anti-immigrant sentiment and increased support for right-wing populist parties. How do parliaments navigate between these two poles when it comes to international cooperation on migration management? Based on examples from Australia, the EU and Israel, this article shows that the use of non-legally binding instruments for cooperation limits the formal role of parliaments, but also and more importantly that there is a lack of political will to scrutinise these instruments and hold executives to account (notwithstanding attempts by some members of parliament or some political groupings to challenge policies through informal means). The lack of political contestation implies that, as far as migration management is concerned, ‘politics stop at the water's edge’.     

Jeremy Bentham,the French Revolution and political radicalism

An unresolved debate in Bentham scholarship concerns the question of the timing and circumstances which led to Bentham's ‘conversion’ to democracy, and thus to political radicalism. In the early stages of the French Revolution, Bentham composed material which appeared to justify equality of suffrage on utilitarian grounds, but there are differing interpretations concerning the extent and depth of Bentham's commitment to democracy at this time. The appearance of Rights, Representation, and Reform: Nonsense upon Stilts and other essays on the French Revolution, a new volume in The Collected Works of Jeremy Bentham, containing definitive texts of Bentham's writings at this crucial period, offers an opportunity to reassess this debate. First, Bentham's most radical proposals for political reform came not in the so-called ‘Essay on Representation’ composed in late 1788 and early 1789, as has traditionally been assumed, but in his ‘Projet of a Constitutional Code for France’ composed in the autumn of 1789, where he advocated universal adult (male and female) suffrage, subject to a literacy test. Second, it may be doubted if the very question as to whether Bentham was or was not a sincere convert to democracy is particularly helpful. Rather, it may be better to see Bentham as a ‘projector’ during this period of his life. Third, the nature of Bentham's radicalism was very different at this period from what it would become in the 1810s and 1820s, for instance in relation to his commitment to the traditional structures of the British Constitution. Having said that, his attitude to the British Constitution remained complex and ambivalent. At his most radical phase, in the autumn of 1789, he advocated wide-ranging measures of electoral reform while at the same time harbouring aspirations to be returned to Parliament for one of the Marquis of Lansdowne's pocket boroughs. To conclude, it was, arguably, the internal dynamic of Bentham's critical utilitarianism, rather than the events of the French Revolution, which was ultimately responsible for pushing him into a novel form of radical politics.     

Jeremy Bentham on liberty of taste

This article examines Jeremy Bentham’s treatment of taste in his essays on sexuality, in the context of the historical development of the idea of taste as a singular practice with a broadly social character. My analysis of Bentham’s comments on taste in these essays also engages with Bentham’s criticisms of David Hume’s writing on social standards of taste. Bentham’s essays on sexuality enable us to understand why he condemns Hume’s critical, and avowedly unprejudiced, analysis of good and bad tastes, with as much vehemence as he does the anti-democratic attitudes of ‘aristocratical’ taste. In his essays on sexuality, Bentham defines taste as a disposition to derive pleasure, which assumes meaning in a social context where human beings transact with one another to secure and increase their enjoyment. By this definition, judgements on good and bad tastes are aspects of an anti-social practice that exerts a negative influence on what Bentham calls ‘an uncontrolled choice’ that links pleasure to utility.     

Memory in warfare: history as a destituent narrative

Abstract

To what extent may we consider historical writing a field of political tension? Could we make a plausible conceptual distinction between a constituent and a destituent narrative? According to Carlo Ginzburg – one of the proponents of ‘microhistory’ – historical sources are ‘distorting mirrors’, which let the truth shine through in an indirect way. Consequently, the good historian is the one who manages to grasp the ‘Freudian slips’ of history and fixes them in a coherent framework. Michel Foucault’s ‘political historicism’ seems to adopt the same historiographical approach: the most reliable witnesses of the past are the victims of the dominant power and the forgotten subjects of the constituent historical narrative. It seems to the author that Walter Benjamin and Simone Weil’s warfare writings share this destituent attitude towards historical representations. As far as Benjamin is concerned, the author’s hypothesis is that between the two world wars he radically redefines his notion of memory. With the apotheosis of the Nazi regime, he starts to conceive memory of the catastrophic past as the only possible input of an authentic revolutionary action. With a similar attention to collective memory, Weil goes through European history in order to deconstruct its principal political mythologies, from Rome to the Third Reich. Her purpose is to let the stories of the defeated re-emerge in order to show the history of violence that lies beyond the official representation of the past. In both cases, the main political aim is eventually to produce a destituent narrative of Europe that could serve as a guideline in the post-war period.     

The Potential Impact of Disability Studies on Political Science (as well as vice-versa)

The conjunction of two seemingly disparate fields of research such as disability studies and political science creates the potential of yielding results that are either familiar or unexpected. On the one hand, it is probable that the merger of these subjects might contribute insights that could expand the scope of investigations about disability and add one more important element to policy analysis. On the other hand, it is also possible that the reciprocal impact of these areas of research could expose significant anomalies in the dominant paradigms of either or both fields that might have a lasting effect. The first portion of this paper examines the impact of political science on disability studies; the second part assesses the potential effect of disability studies on political science; and the final segment explores the prospects for a new paradigm in political science that would permit an increased analysis of social movements and political identity, theories of social change, the phenomenon of paternalism, and the implications of differences in physical appearance.     

Turnout,preferential voting and vote flows in the E.U. election1

ABSTRACT

This article aims at focusing on four main features of the European elections that were held on 26 May 2019. Firstly, it analyses electoral turnout, both from a diachronic and a geographical point of view. Secondly, it presents electoral data and identifies winners and losers of the vote, not only by comparing 2019 E.U. results to 2014 E.U. results and 2018 political results, but especially focusing on the territorial dimension of electoral dynamics. Thirdly, it discusses flows of vote in five Italian cities (Brescia, Turin, Florence, Naples, Palermo), in order to give a clearer picture of how citizens (potentially) changed their electoral preferences from 2018 to 2019. Fourthly, it focuses on preferential vote, with the aim of distinguishing between parties characterized by ‘micro-personalization’ and ‘macro-personalization’. On many of these aspects, the 2019 European elections in Italy can be understood on the basis of the well-known ‘second-order election theory’. Yet, there are also interesting empirical findings that deviate from this pattern, among which the electoral success of the League – one of the two parties in government at the moment of the elections – merits further attention and can be mostly explained on the basis of government political action. That same electoral success, in addition, represented one of the causes that led to the end of the so-called yellow-green government in August 2019.     

The rediscovery of ‘the national’ in the 1990s – contexts,new cultural forms and practices in reunified Germany

This article examines how and in which societal and political contexts nationhood is expressed and symbolised in reunified Germany. This ‘rediscovery’ of nationhood since the 1990s mixes new and old motifs of the cultural repertoire of ‘the national’ for different purposes. Three main contexts triggered a rediscovery of ‘the national’ after 1989: reunification, immigration and the retrenchment of the social state. I argue, by analysing ethnographic material and political discourses, that these contexts, on the one hand, rearticulate old forms of ethnic and cultural nationalism and, on the other hand, create new images and symbols of an open civic society and immigration country. There are ‘playful’ forms, such as campaigns of nation branding, that symbolically include the ‘productive’ and ‘useful’ immigrant into the national project. Moreover, such campaigns serve to legitimatise the downsizing of the national state that – according to a neoliberal attitude – relies on a new community spirit of entrepreneurial, ‘activated’ citizens who ‘help themselves’. Thus, focusing on these pluralised renationalisation processes makes evident how polyvalent ‘the national’ still is. It can be employed by those who attempt to ‘reunite’ the East and West Germans, by businesses to sell their goods and ideas and by almost any political orientation, be it right‐wing or left‐wing.     

From political enemy to profane reality: the ‘friend–enemy’ relation in the political ideology of Italian communists

Abstract

The ‘friend–enemy’ relation represented an essential ideological mainstay of the thought and action of the Italian Communist Party (PCI) in the years of republican Italy. This relation goes back to the aftermath of World War I when Soviet communism became established as a global revolutionary movement. The PCI’s strategy of delegitimation of political opponents underwent substantial changes over the years of republican Italy. The long period spanning Togliatti and Berlinguer’s leadership of the party saw a change in political culture destined to alter the very nature of the ‘friend–enemy’ relation. Particularly in the 1970s, with the so-called ‘moral question’, a new antiparty public discourse became established and was implemented mainly against the parties in government. This paved the way to a more radical and absolute logic of enmity that, in the long run, overwhelmed the PCI itself in the dramatic transition from First to Second Republic.     

Is absolute secularity conceivable?

ABSTRACT

This paper critically examines the prospects for thoroughly secular thought. It does so in relation to recent theories of secularization (and especially Charles Taylor’s and Hans Blumenberg’s) as well as by attending to two very different intellectual projects, one mounted by Jeremy Bentham (in particular his concept of felicity or happiness), the other by Michael Oakeshott. It argues that Bentham’s utilitarian account of happiness depends on a Christian conceptual structure, and that Oakeshott’s understanding of philosophy as a practice of questioning presents a brighter hope for thoroughly secular thought.     

Double opening,split temporality,and new spatialities: an interview with Sandro Mezzadra on ‘militant research’

Abstract

A militant research approach, Mezzadra suggests, should gesture towards a ‘double opening’: towards struggles on the one hand, and towards the production of concepts and theoretical innovation on the other. Mezzadra defines militant investigation as ‘the ability to localize and consolidate the possibility for ruptures’ and as a practice that does not take the meaning of ‘political struggle’ for granted. Building on the ‘within and against’ militant posture of the Italian Workerist tradition, Mezzadra reflects on the split temporality of militant investigations and on the contested spaces of a political epistemology of migrations.     

Education for what? Shaping the field of climate change education with children and young people as co-researchers

ABSTRACT

Children and young people are often positioned as the next generation of leaders in whom the public imagines or expects to overcome the legacies of climate and environmental inaction. Increasingly analyses of progress in environmental education independently identify the need for researchers and teachers to ‘listen to children’s voices’. In this paper we argue that climate change education presents a significant platform not only for youth voices, but also for a genuine activation of children’s political agency in schools, universities, and the public domain. In so doing, we draw upon the government funded project Climate Change?+?Me, which has involved working with 135 children and young people from across Northern NSW, Australia as co-researchers investigating young people’s voices in climate change. We conclude that climate change education can open up an entirely new field of educational experience and inquiry when it is inclusive of and led by young people.     

On the current absence and future improbability of political Catholicism in Italy

Clerical ‘non-negotiable values’ were actively promoted by right-wing governments in the 2000s, the Monti government that replaced them was strongly supported by the Vatican and the Italian bishops, and the current left-wing government is led by a former member of the Catholic popolari who attends Mass every Sunday. But this article argues that, rather than a new golden age of political Catholicism, the return of Catholicism to Italian politics has taken a ‘low intensity’ form which lacks the robust combination of ideas, leaders, organizations, and interests that informed earlier, genuinely political forms of Catholic engagement. The article demonstrates this by focusing on the ‘Todi movement’, which played a crucial role in the Monti government, and on Matteo Renzi’s current leadership of the Partito democratico and the national government. It also proposes a theoretical framework to explain the apparent contradiction between the high visibility and the low political relevance of Catholicism in Italian politics.