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Jeremy Bentham, choice architect: law, indirect legislation, and the context of choice

Quinn, M; (2017) Jeremy Bentham, choice architect: law, indirect legislation, and the context of choice. History of European Ideas , 43 (1) pp. 11-33. 10.1080/01916599.2016.1251720. Green open access

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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.

Type: Article
Title: Jeremy Bentham, choice architect: law, indirect legislation, and the context of choice
Open access status: An open access version is available from UCL Discovery
DOI: 10.1080/01916599.2016.1251720
Publisher version: http://dx.doi.org/10.1080/01916599.2016.1251720
Language: English
Additional information: Copyright © 2016 Informa UK Limited, trading as Taylor & Francis Group. This is an Accepted Manuscript of an article published by Taylor & Francis in History of European Ideas on 22 December 2016, available online: http://dx.doi.org/10.1080/01916599.2016.1251720
Keywords: Indirect legislation, Bentham, knowledge, interest, nudge
UCL classification: UCL > School of Arts and Social Sciences
UCL > School of Arts and Social Sciences > Faculty of Laws
URI: http://discovery.ucl.ac.uk/id/eprint/1541137
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