The Dark Side of Nudging: The Ethics, Political Economy, and Law of Libertarian Paternalism

Libertarian paternalism, as advanced by Cass Sunstein, is seriously flawed, but not primarily for the reasons that most commentators suggest. Libertarian paternalism and its attendant regulatory implications are too libertarian, not too paternalistic, and as a result are in considerable tension with ‘thick’ conceptions of human dignity. We make four arguments. The first is that there is no justification for a presumption in favor of nudging as a default regulatory strategy, as Sunstein asserts. It is ordinarily less effective than mandates; such mandates rarely offend personal autonomy; and the central reliance on cognitive failures in the nudging program is more likely to offend human dignity than the mandates it seeks to replace. Secondly, we argue that nudging as a regulatory strategy fits both overtly and covertly, often insidiously, into a more general libertarian program of political economy. Thirdly, while we are on the whole more concerned to reject the libertarian than the paternalistic elements of this philosophy, Sunstein’s work, both in Why Nudge?, and earlier, fails to appreciate how nudging may be manipulative if not designed with more care than he acknowledges. Lastly, because of these characteristics, nudging might even be subject to legal challenges that would give us the worst of all possible regulatory worlds: a weak regulatory intervention that is liable to be challenged in the courts by well-resourced interest groups. In such a scenario, and contrary to the ‘common sense’ ethos contended for in Why Nudge?, nudges might not even clear the excessively low bar of doing something rather than nothing. Those seeking to pursue progressive politics, under law, should reject nudging in favor of regulation that is more congruent with principles of legality, more transparent, more effective, more democratic, and allows us more fully to act as moral agents. Such a system may have a place for (some) nudging, but not one that departs significantly from how labeling, warnings and the like already function, and nothing that compares with Sunstein’s apparent ambitions for his new movement.

Home is Where the Human is?:Ethics, Intervention and Hospitality in Kosovo

The human is frequently made central to the way international ethics is thought and practiced. Yet, frequently, the human can be used to close down ethical options rather than open them up. This article examines the case of British foreign policy in Kosovo. It argues that the human in this context was placed at the centre of ethical action, but was discursively constructed as a silent, biopolitial mass which could only be saved close to its territorially qualified home. It could not be protected by being brought to the UK. To remain human, the subject of ethical concern, the Kosovan refugee, had to remain near Kosovo. This construction of the human-home relationship meant that military humanitarian intervention became the only ethical policy available; hospitality, a welcoming of the Kosovan refugee into the British home, was ruled out. This article questions such a construction of the human, listening to the voices of Kosovan refugees to open up the relationship between the human and its home. The complexity that results shows that a more nuanced view of the human would not allow itself to be co-opted so easily to a simplistic logic of intervention. Rather, it could enable the possibility of hospitality as another way of practicing international ethics.

On Suffering and Sympathy: Jude the Obscure, Evolution and Ethics

This article links Thomas Hardy’s exploration of sympathy in Jude the Obscure to contemporary scientific debates over moral evolution. Tracing the relationship between pessimism, progressivism, and determinism in Hardy’s understanding of sympathy, it also considers Hardy’s conception of the author as enlarger of “social sympathies”--a position, I argue, that was shaped by Leslie Stephen’s advocacy of novel writing as moral art. Considering Hardy’s engagement with writings by Charles Darwin, T. H. Huxley, Herbert Spencer, and others, I explore the novel’s participation in a debate about the evolutionary significance of sympathy and its implications for Hardy’s understanding of moral agency. Hardy, I suggest, offered a stronger defence of morality based on biological determinism than Darwin, but this determinism was linked to an unexpected evolutionary optimism.

Struggles against Injustice:: Contemporary Critical Theory and Political Violence

This article investigates a significant problem in contemporary critical theory, namely its failure to address effectively the possibility that a campaign of political violence may be a legitimate means of fighting grave injustice. Having offered a working definition of ‘political violence’, I argue that critical theory should be focused on experiences of injustice rather than on ideals of justice. I then explore the reasons as to why, save for some intriguing remarks on retrospective legitimation, Jürgen Habermas has not addressed this issue directly. While Axel Honneth's recognition theory may have greater potential here, the absence of explicit consideration of the matter by him leaves considerable work to do. I introduce five questions in the concluding section that provide a starting point in setting out an appropriately stringent, normative test for claims that support violent action against injustice.

Recording Memories from Political Violence: a Filmmaker's Journey

Based on the work the author has carried out with survivors groups in Northern Ireland and South Africa, this book describes and analyses the use of documentary filmmaking in recording experiences of political conflict. A variety of issues relevant to the genre are addressed at length, including the importance of ethics in the collaboration between the filmmaker and the participant and the effect of location on the accounts of participants.

Further Information:
This monograph reflects on and analyses the work of the author/director over the past decade. His documentary films have been produced in the context of how to address storytelling in post conflict societies by drawing on the disciplines of oral history, ethnography, memory studies and documentary film. All the documentary films under discussion have been produced collaboratively with NGOs, including the Victims and Survivors Trust and WAVE Trauma Centre (both Belfast) and the Human Rights Media Centre, Cape Town. Investigating the influence of location in memory stimulation and the role of collaboration on authorship during trauma recovery, the author offers insights into the process of collaboratively production, which attends to both ethical and aesthetic considerations. While most emphasis is placed on the research, production and post-production phases, thought is also given to the reception of these films and the impact they have on the participants, wider communities, and on policy decisions.

Community Arts and Appropriate Internet Technology: Participation, Materiality, and the Ethics of Sustainability in the Digitally Networked Era

This thesis establishes appropriate internet technology as a matter of sustainability for the community arts field. It begins with a contextual review that historicises community art in relation to technological, cultural, and political change. It goes on to identify key challenges for the field resulting from the emerging socio-cultural significance of the internet and digital media technologies. A conceptual review of the literature positions these issues in relation to Internet Studies, integrating key concepts from Software Studies and the computational turn with approaches from the fields of ICT for Development (ICT4D), Critical Design, and Critical Making. Grounded in these intersecting literatures the thesis offers a new pragmatic ethics of appropriate internet technology: one involving an alternative philosophical platform from which suitable internet-based technologies can be designed and assembled by practitioners. I interrogate these ideas through an in-depth investigation of CuriousWorks, an Australian community arts organisation, focusing on their current internet practices. The thesis then reflects on some experimental interventions I designed as part of the study for the purpose of provoking shifts in the field of community arts. The research findings form the foundation of a series of recommendations offered to practitioners and policy makers that may guide their critical and creative uses of internet technologies in the future.

Clinical Trials Abroad: The Marketable Ethics, Weak Protections and Vulnerable Subjects of EU Law

This chapter explores how the EU is a largely overlooked exporter of normative power through its facilitation and use of clinical trials data produced abroad for the marketing of safe pharmaceuticals at home; a move that helps to foster the growing resort to pharmaceuticals as a fix for public health problems. This is made possible by the EU’s (de)selection of international ethical frameworks in preference to the international technical standards it co-authors with other global regulators. Clinical trials abroad underscore how ethics are contingent and revisable in light of market needs, producing weak protections for the vulnerable subjects of EU law. I argue that these components and effects of the regime are ultimately about that which undergirds, shapes and directs regulatory design. That is, I point to the use, infiltration, perpetuation and extension of market-oriented ideas, values and rationalities into formally non-market domains like biomedical knowledge production and public health. I explain how these are central to efforts at producing and legitimating the EU, its related imagined socio-political order based on a more innovative, profitable and competitive pharmaceutical sector in order to foster economic growth, jobs and prosperity, and with them the project of European integration. ‘Bioethics as risk’ is highlighted as a way to reshape and redirect the regulatory regime in ways that are more consistent with the spirit and letter of the ethical standards (and through them the human rights) the EU claims to uphold.

Philosophy and Political Engagement: Reflection in the Public Sphere

Do philosophers have a responsibility to their society that is distinct from their responsibility to it as citizens? This edited volume explores both what type of contribution philosophy can make and what type of reasoning is appropriate when addressing public matters now. These questions are posed by leading international scholars working in the fields of moral and political philosophy. Each contribution also investigates the central issue of how to combine critical, rational analysis with a commitment to politically relevant public engagement. The contributions to this volume analyse issues raised in practical ethics, including abortion, embryology, and assisted suicide. They consider the role of ethical commitment in the philosophical analysis of contemporary political issues, and engage with matters of public policy such as poverty, the arts, meaningful work, as well as the evidence base for policy. They also examine the normative legitimacy of power, including the use of violence.

State power matters: power, the state and political struggle in the post-war American novel

This article is concerned with resituating the state at the centre of the analytical stage and, concomitantly, with drawing attention to the dangers of losing sight of the state as a locus of power. It seeks to uncover the relationship between two related lines of critical inquiry: Marxist and Foucauldian theories of the state; and the attempts by three postwar American novelist (Ken Kesey, William Burroughs and E.L. Doctorow) to determine the nature and extent of this power and to consider under what conditions political struggle might be possible. It argues that such a move is needed because recent critical analysis has been too preoccupied by corporeal micropolitics and global macropolitics, and that the postwar American novel can help us in this move because it is centrally concerned with the repressive potentiality of the US state. It maintains that the resuscitation of Marxist state theories in early 1970s and a debate between Poulantzas and Foucault is intriguingly foreshadowed and even critiqued by these novels. Consequently, it concludes that these novels constitute an unrecognized pre-history of what would become one of the key intellectual debates of the late twentieth century: an engagement between Marxist and post-structuralist conceptions of the power and resistance.