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ECPR Futures Lab 2020

Governance in a Nudge World: A Philosophical Review of the Literature

Democracy
 
Governance
 
Policy Analysis
 
Public Policy
 
Critical Theory
 
Jurisprudence
 
Institutions
 
Political theory
 
Presenter
Robert Lepenies
Helmholtz Centre for Environmental Research (UFZ)
Authors
Robert Lepenies
Helmholtz Centre for Environmental Research (UFZ)
Magdalena Malecka
University of Helsinki

Abstract
Our contribution summarizes the state of the debate on the philosophical presuppositions of ‘behavioral governance’ – that is, the increasing reliance on findings of behavioral sciences in law and policy justified by attempts to govern people’s behavior in an efficacious way. We argue that in the literature and the debate on the behavioral sciences and nudging, only few commentators have sufficiently taken into account the fact that behavioral governance constitutes a distinctly new mode of policy-making that comes with specific philosophical quandaries. Our attempt is to structure the wealth and range of theoretical voices in the debate that specifically touch on these characteristics.
Drawing on recent scholarship, we identify three key areas in which there has been considerable philosophical interest and contention.

First, we summarize theories of governmentality which can contribute in situating ‘behavioral governance’ in a wider theoretical and historical perspective. 
Second, we examine and reconstruct the implicit epistemological assumptions underlying behaviorally-informed law and policy. We investigate whether they have been addressed by recent scholarship and whether there is a consensus that there are specific philosophical problems associated with behavioral expertise.
Third, we compare theories of agency underlying behavioral governance and nudging policies with the more traditional legal policies that are based on a model of rule- and norm-governed behavior. We outline which institutional designs follow from and embody these diverse notions of agency. 

We conclude by linking the studies on application of behavioral sciences to law and policy to the analysis of power orders and regimes. We propose an institutional and biopolitical frame which we hope might lead to further empirical and normative work. We aim hence to provide both a philosophical overview and propose a critical synthesis.
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