Nudges and the limits of appropriate interference: reading backwards from J.S. Mill’s harm principle to Jeremy Bentham’s indirect legislation

Abstract

ABSTRACTThe starting point of the present paper is the nudge phenomenon. The most disturbing element of nudge is its potential for individual manipulation, that is, for relying on initiatives that go beyond the acceptable limits of interference in individual choice. This feature is not ignored by nudge advocates, who discuss it extensively to justify the overriding benefits of such initiatives. In this discussion, they acknowledge the seminal importance of J.S. Mill’s harm principle, which is introduced in On Liberty. Academics without hidden agendas must look into Mill’s theories from an intellectual history perspective and study to what extent Mill’s harm principle lends support to the interference of government and society in private lives. This paper first unveils some contradictions in the interpretation of Mill’s harm principle in order to show that it is an unlikely source of philosophical justification for nudge proponents. The paper argues further that Mill was familiar with Jeremy Bentham’s writings on indirect legislation, presented in the Traités de legislation civile et pénale. It pinpoints elements of indirect legislation that are discussed by Mill in On Liberty, without ever naming them as such. The paper contends that Mill’s presentation of the harm principle can be read as a discussion with Bentham in relation to the appropriate limits of government intervention in people’s lives. This double reading of Mill and Bentham through the lens of indirect legislation makes it possible to pinpoint the main differences between the authors as regards the appropriate degree of government interference. Bentham’s theories appear to be a more appropriate source of philosophical justification for the use of nudges than Mill’s harm principle.