Revue Européenne du Droit
Governing globalization through law: The hypothesis of a new natural law
Issue #2
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Issue #2

Authors

Vincent Forray , Sébastien Pimont

21x29,7cm - 186 pages Issue #2, Spring 2021 12,90€

1. Obligation and determination

To discuss governing globalization through law, we would like to start by talking about two techniques of government of our lives: obligation and determination. A priori, the first belongs to law or morality while the second belongs to nature and its laws. On reflection, things may not be so simple. From the laws of nature, it is possible to make a kind of law: a new natural law, strangely close to what we call classical natural law 1 . A law that is perfectly capable of governing our lives in the globalized world and thus of governing globalization. A law that is far more effective in this role than positive law linked to declining States or attached to increasingly fragmented communities. A law we must distrust for that very reason that it is terribly efficient. This is the working hypothesis that we would like to present in the following lines. But let’s not go too fast and let’s start from who is intended to be governed: beings.

In the political domain, the obliged being can be opposed to the determined being. Of course, for a living being the performance of an obligation can lead to the same result (to do or not to do) as the realization of a relation of determination. However, their nature is profoundly different. The obligation is civil or moral, it finds its measure in freedom; the determination is natural: a relationship of cause and effect, it is revealed by the science that observes and describes it. In modern political philosophy, the former intervenes in order to legitimize what the latter cannot: servitude. Law is opposed to force in order to explain the limits of our liberties 2 . It is “the operation of social becoming” 3 . This is the mythical passage from the state of nature to civil order.

The description of this “becoming” mobilizes the forms of law: these are the categories of civil law, i.e. Roman law 4 . It is these forms which, in the philosophical discourse of modernity, explain the uprooting from the laws of nature. Submission to laws other than the laws of causality (force) is thus due to a contract; it will also find its justification in a quasi-contract; or it could find its cause in liability. Thus, the specificity of the social being is to oblige himself, whatever the formal source of his obligation: his will or his fault.

It is in this sense that we can distinguish the figure of the obliged being from that of the determined being. Being no longer simply determined, a new relationship is necessarily woven between the being and his environment: an artificial and normative order. The uprooting that gives certain beings laws other than those of nature imposes a novation: a legalization or moralization of the norms that bind us to the world. As far as politics is concerned, intertwined cause-and-effect relationships metamorphose into bundles of civil or moral obligations. So that the order that leads to the preservation of the earth and other living beings no longer has to be spontaneous 5 ; it is no longer simply the fruit of a law of nature, such as that of evolution. It becomes a function of will or responsibility, and therefore of freedom. The care of the earth, as that of other beings, is a function of the power of the obliged being. The one having the faculty to oblige himself (morally, legally) rather than to be determined (scientifically). Let us finally say that each being contributes, depending on the information at his disposal and on his will, to such a mechanism of novation: the passage from the reign of facts to the rule of law.

Thus, the passage from is (an observation of the depletion of the planet’s resources) to ought (an injunction to take care of the earth) is the fruit of moral or legal reasoning: awareness of a fact becomes the real cause of obligations (limiting the emission of greenhouse gases; sorting one’s waste; limiting one’s air travel; etc.). A civil form thus mediatizes, starting from the will and awareness of the world, the movement from fact to law. Let us insist on one point: the existence of this form changes everything. Its strength is, we have said, novatory. It is therefore not the facts that have a binding force 6 . It is an act of will that produces an obligation. Awareness of the facts (a consequence of their scientific description) is the motive for the decision to act in law 7 .

2. Classical and modern natural law

We have described as modern the distinction between being obliged and being determined. In particular, we have linked it to the theory of the social contract. We must now stop on this point. We could say more precisely that it is attached to modern natural law and that for this reason it is opposed to another doctrine: that of classical natural law. According to the latter, the issue is not escaping from any state of nature, removing oneself from it with the help of the forms of law; quite the contrary: the social state is the order of nature: “the law of nature is not pre-social; it is found in the best possible society.” Consequently, “the state of nature is the state that conforms to the essence in a good society” and natural law takes shape in the “duties” establishing the conditions in which the essence can be realized. For this reason, knowledge of the law of nature implies the “competence of the wise man”, i.e. the one who is able to determine the essences and thus to say what the duties are 8 . In short, the practice of such a law consists in a scholarly activity that derives duties from a study of the world of facts. Thus, as Michel Villey put it, “the Roman obligation, whether mediately or immediately, has its foundation in nature. In the social reality, which we are free to observe”, a “reality presumed good” 9 . To this end, “the role of the judge”, he teaches elsewhere, “will be to say the dikaion, to state in indicative mode what the fair division is, which he discovers in ‘nature’ or, if scientific research is not enough, which he determined authoritatively. The entire community of the jurists assists the judge in this effort to state the measures of the fair ratio. Thus are marked the delineations of the legal discipline” 10 .

By comparison, modern natural law can be presented as the law of “power” 11 . With it comes the question of force: that of the law of the strongest that pre-exists the social state. It is the pre-social nature which it is possible, as we have said, to escape through the intellectual force of the forms of law. The way will thus be open to the reign of positive law. The law (in a normative sense) is in fact the act of will (the artifice) through which society is produced as the becoming of nature. Positive law is thus, by definition, what is intended to limit and constrain power.

At this point, modernity introduces a political and epistemological distinction between “normative laws” and “descriptive laws” 12 , between proposals formulated in the imperative and statements expressed in the indicative, between civil law and the laws of science. We recognize the distinction between “is” and “ought.” A stream of knowledge in legal theory is born from this separation 13 : hence, for jurists, the distinction between the sociology of law and normativism. Such a separation also engenders logical prohibitions, such as that of the naturalistic paralogism: a factual judgement is not a normative judgement (even if it can lead, as we have explained, to the production of an obligation). Finally, this distinction modifies the role of the scholar (the scientist): he no longer has the vocation to formulate duties.

3. Behavioral incentives

By simplifying things considerably, we thus observe a division between fact and norm (the art of law is not natural science) taking on the meaning of liberation (man is freed from the state of nature by the forms of law). However, it would be naive to believe that such a liberation is definitive; or even that it is possible. So to speak, “the animal aspect of man resists the law” 14 . A being is always determinable. His life remains subject to the jurisdiction of the laws of nature. The biological man (he whose life is bare) always emerges on the surface of the civil man (he whose life is dressed with the forms of law); he is his double and his envelope, his weakness too; he is the measure of his freedom, that of his humanity too. The political animal is also an animal 15 . This is self-evident. Natural laws govern our bodies, our cognition and our environment; they control the climate, the seasons and the earth; they also govern our understanding of climate change, the order of the seasons and the book of the earth. But that is not all. They sometimes compete on political territory with civil laws for their empire. In some cases, the laws of nature are instrumentalized to govern our lives in ways other than positive law 16 .

The making and use of so-called “nudges” 17 – also known as “behavioral incentives” 18 – can serve as an illustration. In this way, certain domains of knowledge (e.g. behavioral sciences, social psychology, behavioral economics) serve public policies 19 or private strategies 20 . This knowledge is instrumental and offers a technical power that captures the determinable share of our beings and, to some extent, determines it.

3.1 Analysis

To show this, we do not want to discuss directly the political meaning given to this technique by its promoters (that of a “libertarian paternalism”). Rather, we intend to reflect on the mechanism that constitutes it. The word “nudge” literally means an encouragement. By using this expression (or that of ‘nudging’), which is rather imprecise, we always evoke a series of processes that exploit the cognitive biases of individuals in order to smoothly orient their decisions towards predefined solutions that are deemed to be good. Thus, for example, placing fruit at children’s eye level will provoke their consumption. Similarly, painting white lines at increasingly narrow intervals gives the impression of increased speed, which will encourage the driver to decelerate when approaching a dangerous turn 21 . Similarly, in order to “encourage” the nursing staff to use a hydro-alcoholic solution dispenser, “it is possible to place a lemon aroma diffuser at the entrance to the intensive care unit” 22 . In short, “nudges” are based on several (cognitive) levers that allow for unconstrained suggestion.

A few clarifications are needed. At the risk of being mistaken, given how many references and how many different types of behavioral incentives exist 23 , we can say that thanks to the (empirical) behavioral sciences, the function of this type of tool is to “influence the behavior of agents who are neither completely rational nor perfectly informed” 24 . More specifically, Pell Hansen (quoted by Péter Cserne) 25 states that a nudge “is a function attached to any attempt to influence people’s judgement, choices or habits and make them predictable.” This is “made possible” by the fact that there are “cognitive limitations,” “biases,” “routines” and “habits present in individual and social decision-making.” All of which “prevents people from acting rationally in their own interests.” In order to influence these “people” in this direction, the “functioning” of the nudges “is based on these limits, biases, routines and habits.”

Thus, one can hope to guide (i.e. to govern) a person’s decision by instrumentalizing the way in which the branches of the options open to her (the “architecture of choice”) are presented according to their cognitive limitations and biases 26 . The objective is, without limiting the number of choices, to encourage her to make the right one. The advantage of such processes is understandable. For the French administration, for example, for a low cost and with limited risk-taking, “nudges” are used to facilitate relations with users, to guide them in their administrative procedures or to prevent risky behavior 27 .

3.2 Qualification

Nudges can thus be said to be instruments for controlling the “behavior” of individuals 28 . They are organized between two poles: a mobilization of the discoveries of behavioral economics as well as the will to achieve certain political goals: means and ends. Since this will is not expressed in the imperative; since it does not implement State violence; it can also be said that the technique it mobilizes cannot easily be reduced to the common definition of positive law – even if this definition is itself open for discussion 29 . In fact, this is precisely the intention of the promoters of such tools 30 : to “encourage” or suggest “without coercing” and thus not to resort to “obligation or fear of punishment” 31 . Nudges, like positive law, belong to the means available to the State, public authorities and private companies in order to direct the life of beings. One can speak, for both, of a “normative guide” or, more broadly, of a technique of government 32 . It can also be said that behavioral incentives demonstrate the existence of an art of governing that mobilizes “practices” constructed outside the forms of law 33 . This is so even if, in the exercise of sovereignty, these practices (these governing facts) sometimes come under the jurisdiction of the law: nudges can thus ensure the application of a statute.

Of course, civil law lawyers have long known how much, without any external constraint, the force of the law resonates in its very subjects 34 . However, the phenomenon described goes beyond the marks of such wisdom. And it is not necessarily satisfactory for a jurist, committed to the rule of law project, to imagine that the administration and private companies have a catalogue of tools or recipes to govern the bare lives of citizens. Nor that some of the items in such a catalogue escape the empire of legal knowledge and action. To emphasize this point, let us say that one of the characteristics of such governmental phenomena is to be hidden. In this sense, nudges seem to lose their effect if they are known (from the nudged). Secrecy is thus their problematic condition 35 . Somewhat like the government recipes (Chou as opposed to Fa) of ancient China 36 . Which is a clear difference from the principles of modern legislation. The problem of concealment of such government practices is not just a question of publicity. It goes deeper and is epistemological. Our theory of legal knowledge does not allow us to identify such a phenomenon as belonging to the world of law: it is a matter of public policy, behavioral sciences and even economics. Such practices of government thus remain legally unknowable or, more precisely, outside the world of jurists; for this reason, in order to say what they are, they call for an “external point of view.” In short, the observation is as follows: “it is there; it governs our lives and yet it is not law.”

Giving some depth to the subject, let us say that what has been hidden, at least from the eyes of modern jurists, is that a natural science of politics has been possible from the outset. A science whose purpose is the domination of men by other men 37 ; a science that can thrive in the shadow of obligation and, more broadly, of the forms of law. Such assertions will come as no surprise. They are in line with one of the faces of the Enlightenment: scientism 38 . Saying things in this way also corresponds to a figure to which critical thought has accustomed us: showing one thing, in this case the rule of law, always obscures another: science governs our bare lives by updating an ancient conception of the state of nature. Law is thus the operation of a social future that never happens. A reasoned study of these assertions would deserve to be conducted differently 39 . It should be pointed out that we could also start thinking from other objects, such as the discipline of bodies, for example 40 . Let us also say that such a reflection can be included in a broader proposal. That according to which, following the work of Michel Foucault, we think that “on the threshold of the modern era (…) natural life is beginning to be integrated into the mechanisms and calculations of state power, with politics becoming bio-politics”. 41 Out-law.

4. A new atypical natural law?

With such ideas in mind, a solution may exist to legally interpret such naturalistic practices. In order to give them such a meaning it is possible to compare them to what is called classical natural law. A distinction with positive law would thus be possible, while hoping to keep such practices within the domain of legal philosophy and theory. It should be noted that this is not to say that nudges are natural law in the sense that Aristotle, Cicero, Michel Villey or Leo Strauss understood it. However, without making such a connection, it is possible to establish links between classical natural law and “nudges” and to draw certain conclusions.

If we look first at the system implemented, we observe an instrumentalization of the laws of science. That is to say, the mobilization of a descriptive conception of law in the domain of political organization, which in this matter corresponds to a return to nature or, if you like, to the immutable order of the world. It is again, in this field, the reappearance of the scholar (the scientist); that is to say, the one who studies nature, who brings to light the relations of determination. A scientist who is a priori in his modern position: he discovers, describes, formulates hypotheses, and experiments with the laws of nature. For example, it is on the basis of an “ethnographic analysis of the behavior of users, their journeys and their needs in the course of their administrative procedures” that the French Direction générale des finances publiques determines the types of “nudges” relevant to encouraging the use of online services. More generally, while reading the guides produced by the French government, it can be seen that a genuine scientific methodology always governs the design of the relevant behavioral incentives 42 .

Of course, the scholar, like the one who, as in the example mentioned, writes and interprets an ethnographic analysis, does not directly formulate duties. This is no longer his competence. However, he does offer recipes (the appropriate types of nudges not known to the people nudged and the architecture of choice) in order to induce them to act according to a conception of the good which, itself, is calculated by economic science (by answering the question of what rational man should do in such a situation, i.e. a cost/benefit calculation: the one that should prevail in any decision). Such an assertion leads us to introduce a nuance into our argument. By formalizing what is in conformity with the world order, it seems to us that the scientist does indeed determine duties. In this sense, he always formalizes “the conditions under which” (…) “the essence” is realized; he then allows, using the words of classical natural law 43 , “life conform to the essence in the best society possible.” Now, if the essence of man is to be “reasonable,” the scientist helping to conceive “nudges,” does indeed contribute to the definition of “moral action in conformity with the essence.” Understand: what is the best choice for an individual – or for society. That is, defining what is right. And this does not, of course, amount to laying down the principle of human “power” – that of the pre-existence of freedom as a natural right 44 . This would be leaving “the influence” that the “architecture of choice” intends to exert “in the hands of chance” 45 . We have left the shores of modern natural law.

We could therefore very cautiously argue that a new natural law (of the classical type) is emerging. It is understood as the instrumentalization of one or more laws of nature in order to suggest the realization of one or more acts or abstentions. In its formula, however, such a natural law is atypical. Like positive law, it derives from the act of will of an authority whose object is to produce a behavioral incentive. By comparison, positive law itself sometimes has a similar role: it may be comminatory (e.g. the penal clause), prophylactic (e.g. civil or criminal liability) 46 or simply inciting (e.g. the supplementary provisions of will). But the act of will to which the behavioral incitement corresponds is not a prescriptive statement that can be derogated from. It has no “binding force:” its force derives from the facts (the physical “blow” literally given by the “nudge”). While the law has violence at its service; behavioral incentive is a factual process. “The act is material; it is not normative” 47 . Its content refers to the mobilization of descriptive formulas of facts (scientific laws). And its aim is to govern the bare life of people. One can say it is normative in the sense that the objective of the instigator of the nudge is to favor the choice of the best behavior – tending towards the realization of what is good. The new natural law would thus be a hybridization: it is an act of will whose aim is normative, whereas its content is made up of politically instrumentalized descriptive laws.

At the extreme, the advantage of the new natural law is that, given the type of laws it mobilizes, by definition it cannot be violated. Scientific laws are invariable; they do not suffer from non-execution 48 . To put it quickly: machines, even human ones, do not disobey. With regard to the laws of nature, there is no “deviation that is analogous to what crime or fault are in relation to civil or moral law” 49 . And in fact, these laws are not addressed to the will to impose an act or an abstention. They are the consensual formula of a determination which grasps the natural aspect of the being, seeking in him the causes capable of mechanically producing predictable effects. Of course, in the case of “nudges,” freedom of choice seems to remain; it remains by definition, one might even say, since it is not a question of prescribing but of encouraging in order to inspire the “right decision” in “gentle” ways; there is therefore no formal constraint on choice or reduction in the number of options. However, as a result of the technique used (see above), freedom is overtaken, circumvented, diverted; more precisely, it is relegated: the determined being, who is the object of the “targeted reorganization” of his or her “decision-making environment,” 50 is not the obliged being. The process put in place regards his determinable aspect.

Thus, rather than freedom, there remains “the mere – misleading – feeling of having it” 51 . The citizen, consumer or employee is dealing with an “architect of choice,” not a legislator. Obviously, given the diversity of “nudges” (and the consequent vagueness of their definition), the limitation of the field of application of freedom (its removal from the game) will be more or less clear-cut depending on the technique used 52 . But it can always exist 53 . And at least in some cases, it is qualified by some as “manipulation” (a civil law lawyer could speak of fraud); even if this manipulation is temporary and if it is carried out in the interest of the person being manipulated.

5. Relations with positive law

The new natural law ­– if we admit its existence, which we propose here as a hypothesis – is the fruit of an observation of nature by scholars; it produces descriptive laws formulated in the indicative; laws that can metamorphose into tools at the service of a policy. This is a kind of naturalization of the law, and it is quite serious and is not limited to a question of borders and disciplinary diplomacy. It is thus outside the realm of law that a new law governs our lives. Very simply put, a thing governs us and yet this thing is not a legal norm. Having said this, about this thing, however, we find it necessary to talk about law. A law that is close to classical natural law; a law that shares a structure with it: it is the fruit of the work of scholars (co-architects of choice) producing, from the observation of nature, tools (“architecture of choice”) that make predictable certain behaviors deemed good: behaviors that conform to the essence, one might say. There would therefore exist two laws rather than one. Such an assertion itself calls for precision. There is no question of pointing out that there exists, in addition to an applicable positive law, an ideal law produced by God or reason; the latter being above the former, the two being linked by an interlacing of subtle relationships (natural law inspires reforms, it is a complementary source for the interpreter, it justifies the right to rebel, etc.). What we mean instead is that there are two fully positive law: each, by different means (normative, factual), with the ambition to really govern our lives. Two laws that function simultaneously. Two laws, one of which, since its modern foundation, has concealed the existence of the second from lawyers.

Such a hidden coexistence can be explained.

The founding mythology of modern law (be it a convention or a code) relegating the laws of nature outside (the definition of) the law did not – and could not – have the consequence of making the vocation of science for government disappear. On the contrary, for more than two centuries, the progress of science, applied to politics, has only increased the means available to govern the lives of beings.

At this point, by way of conclusion, it is possible to argue that positive law and its dogmatic science can play a critical and protective role in autonomy – we could say emancipatory 54 . It is possible to mobilize them against what we have called (new) natural (classical) law. In this sense, there are of course “legal remedies” against “material acts” 55 that constitute “practices of government.”

Activist legal criticism is therefore possible. It is similar to the struggle for law described by Jhering. It can mobilize private and public law and fundamental rights. Beyond the activity of the courts, given the nature of behavioral incentives, constitutional action must democratically determine the areas of our social lives where we decide to give less room to freedom of choice (see above). Finally, beyond the practice of law, such a struggle can also invest the field of epistemology or language – the place where the theory of positivism prohibits knowledge of other techniques of government. Given the normative purpose (see above) of these practices, it is indeed possible to try to “describe” them legally. In other words, it is possible, by projecting the categories of law onto these facts, to understand them legally and to formulate them as part of the legal order. Such an “imputation” of the nudges to the universe of legal texts could, in a sense, give hope for their civilization 56 .

Notes

  1. On this hypothesis, see also: « Droit et gouvernementalité. Le nouveau droit naturel », Droit et Philosophie, forthcoming.
  2. See, J.-J. Rousseau, Du contrat social, presentation by B. Bernardi, GF, Flammarion, 2001, p. 46.
  3. The expression is from Gilles Deleuze, Cours Vincennes du 09/12/1980 : « La puissance, le droit naturel classique » : https://www.webdeleuze.com/textes/9.
  4. On the notion of obligation see M. Villey, « Métamorphose de l’obligation », Critique de la pensée juridique moderne, Douze autres essais, preface by M. Bastit, Dalloz, 2009, p. 201 s.
  5. We can reflect, however, following the Scottish Enlightenment, on the spontaneous aspect that remains in the order of modernity.
  6. On this fearsome issue see B. Latour, Face à Gaïa, huit conférences sur le nouveau régime climatique, Les empêcheurs de penser en rond, La découverte, 2015, p. 33 et seq.
  7. On the importance of purpose in law se R. Jhering, L’évolution du droit, translated by O. de Meulenaere, Librairie A. Maresq, 1901.
  8. We use and quote here G. Deleuze, Cours Vincennes of 09/12/1980: “La puissance, le droit naturel classique”, op. cit.
  9. See, M. Villey, “Métamorphose de l’obligation”, op. cit.
  10. “Torah-dikaion (paristique et haut moyen-âge)”, in Critique de la pensée juridique moderne, prec. Dalloz, 2009, pp. 19-20.
  11. See, G. Deleuze, Cours Vincennes of 09/12/1980: “La puissance, le droit naturel classique”, op. cit.
  12. See, R. Brague, La loi de Dieu, Gallimard, Folio essais, 2005, p. 395.
  13. See, e.g. H. Kelsen, “Qu’est-ce que la théorie pure du droit ?”, Droit et société, n° 22, 1992, pp. 551-568.
  14. See, Alain, Propos sur les pouvoirs, Éléments d’éthique politique, Gallimard, Folio, Essais, 2003, p. 307.
  15. See, G. Agamben, Le pouvoir souverain et la vie nue, Homo sacer, L’intégrale, 1997-2015, Opus, Seuil, 2016, pp. 11-13.
  16. See, A. Flückiger, “Gouverner par des ‘coups de pouces’ (nudges) : instrumentaliser nos biais cognitifs au lieu de légiférer ?”, Les cahiers de droit 59 (1), p. 199-227.
  17. Among an abundant literature see (in French): J. Chevallier, “Les nudges dans la modernisation de l’action publique”, in Bozzo Rey, A. Brunon Ernst (dir.), Nudges et normativités, Généalogies, concepts et applications, Hermann, 2018, pp. 227-238. See also in this journal A. Alemanno, “Le ‘Nudge’ et l’analyse comportementale du droit : perspective européenne”, Revue européenne du droit, September 2020.
  18. See, T. Griessinger, Transition écologique : quels apports des sciences comportementales ?, Direction interministérielle de la transformation publique, 2019.
  19. For a very clear presentation see le Portail de la transformation de l’action publique and more specifically the page dedicated to « sciences comportementales au service de la transformation publique » : https://www.modernisation.gouv.fr/nos-actions/les-sciences-comportementales.
  20. For a presentation of the usefulness of “nudges”, particularly in the context of “business prolematics”, see the pages of BVA company’s website relating to the “expertise” of this company in order to “facilitate the adoption of new uses”: https://www.bva-group.com/nudge-et-comportement/.
  21. These examples are borrowed from Richard H. Thaler and Cass R. Sunstein, Nudge, Improving decisions about health, wealth and happiness, op. cit.
  22. This example comes from the BVA company’s website: https://www.bva-group.com/nudge-et-comportement/accelerer-changements-comportements/.
  23. “The authors identify six techniques for this purpose: 1) opting by default; 2) anticipating errors; 3) establishing benchmarks; 4) retroacting; 5) restructuring complex choices; 6) creating incentives,” says A. Flückiger, op. cit., p. 205.
  24. See, P. Cserne, «les Nudges sont-ils extra-juridiques ?», in Nudges et normativités, généalogies, concepts et applications, under the direction of M. Bozzo-Rey et A. Brunon-Ernst, Hermann, 2018, p. 126.
  25. See, P. Hansen, “The definition of nudge and libertarian paternalism: does the hand fit the glove?”, European Journal of Risk and Regulation, 7 (1), 2016, p. 4 ; reference quoted by P. Cserne, op. cit., p. 124.
  26. However, not all authors admit that nudges necessarily rely on cognitive biases – see S. Lemaire, “Nudges, information and manipulation”, in Nudges et normativités, sp. p. 178 et seq.
  27. See « Le portail de la transformation de l’action publique » : https://www.modernisation.gouv.fr/outils-et-methodes-pour-transformer/le-nudge-au-service-de-laction-publique.
  28. “The application of nudges represents a real opportunity to help change behavior,” says the BVA website: https://www.bva-group.com/nudge-et-comportement/former-equipes-nudge/.
  29. On the idea that the law can be analysed as a technique of government, we would like to refer back to V. Forray and S. Pimont, “En partant de la gouvernementalité libérale, deux interprétations du droit”, Foucault face à la norme, edited by J. Guittard, E. Nicolas and C. Sintez, Mare & Martin, Coll. Libre droit, 2020, p. 155 et seq.
  30. Thus very clearly, Thomas Cazenave, inter-ministerial delegate for public transformation, declares that “this approach” (the mobilisation of behavioural sciences at the service of public policies) “supposes allowing oneself a number of audacities, among which that of definitively divesting the State of its customary reflexes: producing standards or acting through taxation or financial incentives”: https://www.modernisation.gouv.fr/sinspirer-pour-transformer/thomas-cazenave-sciences-comportementales-et-politiques-publiques-inciter-plutot-que-contraindre.
  31. See, “Le portail de la transformation de l’action publique”: https://www.modernisation.gouv.fr/outils-et-methodes-pour-transformer/le-nudge-au-service-de-laction-publique.
  32. See, P. Cserne, “Les nudges sont-ils des outils extra-juridiques ?”, Nudges et normativités. Généalogies, concepts et applications, under the direction de M. Bozzo-Rey et A. Brunon-Ernst, Hermann, 2018, p. 121 et seq.
  33. On the relationship between law and government practice see M. Foucault, Naissance de la biopolitique, Cours au Collège de France 1978-1979, EHESS, Gallimard, Seuil, 2004, p. 15.
  34. Man is reasonable and sees the application of the law as useful. “And then,” adds Jean Carbonnier, “the law can count on the support of sentiment, of more or less troubled emotional forces:” Droit civil, introduction, 27th ed, PUF, Themis, 2002, n° 6.
  35. On the debates on this point see S. Lemaire, op. cit., sp. p. 186 et seq.
  36. M. Granet, La pensée chinoise, preface by L. Vandermeersch, Albin Michel, Bibliothèque de l’évolution de l’humanité, 1999, p. 378: on the opposition between fa and chou, “two terms that first meant indistinctly ‘recipes, ways of doing things’ (…). Fa takes on an imperative meaning and means law as soon as it is applied to regulations that are made public, while chou retains its value as a recipe because (chou or) recipes must remain secret.”
  37. On the birth of such a science see M. Horkheimer, Les débuts de la philosophie bourgeoise de l’histoire, Petite bibliothèque Payot, Payot-Rivages, 2010, p.16 et seq.
  38. See, M. Esfeld, Sciences et liberté, l’image scientifique du monde et le statut des personnes, EPFL PRESS / Presses polytechniques et universitaires romandes, 2020.
  39. This is the project of a book being written on the new natural law.
  40. On the question of the mistreatment of bodies by contemporary management, see J. Le Goff, “L’effet de la norme sur le sujet : la cruauté dans le rapport managérial au corps”, Foucault face à la norme, prec. p. 355 et seq.
  41. See, G. Agamben, Le pouvoir souverain et la vie nue, Homo sacer, L’intégrale, 1997-2015, Opus, Seuil, 2016, p. 12 et seq.
  42. About this methodology as well as these applications in the field of ecological transition see T. Griessinger, Transition écologique : quels apports des sciences comportementales ?, Direction interministérielle de la transformation publique, 2019.
  43. Here again we use Gilles Deleuze’s course on Spinosa; more precisely: Cours Vincennes du 09/12/1980 “La puissance, le droit naturel classique” : https://www.webdeleuze.com/textes/9.
  44. On freedom and nudges see the rather radical position of S. Conly, “Doit-on accorder de l’importance à la liberté de choix ?”, in Nudges et normativités, supra, pp. 199 et seq. 
  45. The expression which comes from the aforementioned work by Thaler and Sunstein (cited above) is quoted here in the Manuel méthodologique de l’approche comportementale à l’usage des décideurs publics, Direction interministérielle de la transformation publique, p. 11.
  46. See, Ph. Malaurie, L. Aynès et Ph. Stoffel-Munck, Droit des obligations, L.G.D.J., 8ème éd., 2016, n° 31.
  47. “The creation of an incentive behavioural environment is not a matter of soft or hard norms, but of facts,” rightly points out A. Flückiger, “Gouverner par des ‘coups de pouces’” (nudges) : instrumentaliser nos biais cognitifs au lieu de légiférer ?”, Les cahiers de droit 59 (1), p. 215.
  48. See, Montesquieu, De l’esprit des lois, Œuvres complètes II, text presented and annotated by R. Caillois, NRF, Gallimard, 1951, p. 234.
  49. See, A. Lalande, v° “LOI”, Vocabulaire technique et critique de la philosophie, Volume I, A-M, Quadrige, P.U.F., 1999, p. 583.
  50. See, Manuel méthodologique de l’approche comportementale à l’usage des décideurs publics, Direction interministérielle de la transformation publique, p. 10.
  51. See, A. Flückiger, “Gouverner par des ‘coups de pouces’ (nudges) : instrumentaliser nos biais cognitifs au lieu de légiférer ?”, Les cahiers de droit 59 (1), p. 205.
  52. For a reflection on the autonomy violations of information nudges see S. Lemaire, “Nudges, information et manipulation”, in Nudges et normativités, op. cit., pp. 175-198.
  53. Ibid, sp. p. 181, “I will therefore admit that there are situations in which nudges can lead individuals to make better choices than they would make without them, either because they are best suited to satisfy the interests of the individuals in question or because they are preferable from a social, moral or political point of view. Of course, if this thesis is challenged, then nudges are never justifiable. However, this radical objection does not seem to me to apply to all nudges. It seems to me simply absurd to maintain that it is always impossible to make sense of the idea that a person could have made a better choice based on, for example, his or her interests.”
  54. “Politique des formes civiles”, R.T.D. Civ., 2020, p. 526 s.
  55. See, A. Flückiger, “Gouverner par des ‘coups de pouces’’ (nudges) : instrumentaliser nos biais cognitifs au lieu de légiférer ?”, Les cahiers de droit 59 (1), p. 215 s.
  56. On the strategy for incorporating a non-legal text into the textual universe of law see V. Forray and S. Pimont, Décrire le droit … et le transformer, Essai sur la décriture du droit, Dalloz, 2017, n° 428 s.
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Vincent Forray, Sébastien Pimont, Governing globalization through law: The hypothesis of a new natural law, Aug 2021.

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