Nudging Bentham: indirect legislation and (neo-)liberal politics

SUMMARY

The debates over Sunstein and Thaler’s Nudge oppose libertarianism and paternalism, or defend the authors’ proposed manipulation of individuals’ ‘choice architectures’ as a consistent system of libertarian paternalism. My essay looks beyond the terms of this debate and revisits Bentham’s ‘Indirect Legislation’ in order to excavate the issues raised by the deployment of technologies of behavioural economics in schemes of government. On the one hand, nudging is nothing other than a mild and carefully considered mode of indirect legislation, and the authors are right to join Bentham in pointing out that the landscape they seek to improve is always with us; we are always already governed and governing others, and we might as well govern and be governed better than we do/are. On the other hand, nudge-like innovations reveal the extent to which Bentham’s insights have been captured by a disciplinary orientation that removes its subjects from political space. Put differently, the issue with this kind of government is not that it interferes with our liberty so much as that it presumes our lack of political orientation and efficacy. Bentham’s liberal subjects inhabit a public and even republican space that Sunstein and Thaler’s neo-liberal subjects have long since abandoned.