Schuppert, Gunnar Folke

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Nudging: Neither a Novelty, nor aPromising Lead – Unless in ContextGunnar Folke Schuppert 2015-04-17T12:36:43Let me begin with a few preliminary remarks. In their comment entitled "NudgesPolarize!", Emanuel Towfigh and Christian Traxler state that this polarisationis mainly owed to the different ways of thinking prevalent among German legalscholars with their strong belief in the state, Anglo-Saxon legal scholars and theirscepticism of the state, and laypersons. However, this statement does not really getus anywhere. It may well be the case that the German guild of legal scholars – atraditionally rather conservative group – tends to initially struggle with new terms, ashas been seen before in the case of the term "governance". But to claim that legalscholars cannot help but think in ways that idolise the state, due to their educationand the exams they sit, seems to me to be fairly farfetched. The term "NeueVerwaltungsrechtswissenschaft", as stressed by Towfigh and Traxler, illustrates this.A bashing of disciplines is therefore, in my view, neither expedient nor called for.It is by the way not as a legal dogmatist that I make the following critical comments,but as an administrative scientist who is versed in social sciences, and has engagedhimself with controlling and governance for a long time. If we take a look throughthe lens of administrative science – like I do – we see two things: firstly, that theconcept of nudging cannot rightfully claim to have any news value, and secondly,that it needs to be placed within the context of contemporary insights from the fieldsof controlling science and communication theory.1. If we have a closer look, we will find that there is much more to governmentcontrol than the handling of commands and prohibitions we find in classicalregulatory law. However, this is a fact which social scientists with their tendency toidentify the state with hierarchy and "command and control" like to overlook.Different regulatory tools have always been distinguished within administrativescience, just as Werner Jann suggested in the following way, in a comment that waspublished as early as 1981:Regulatory Tools Financial Tools Informational Tools- 1 -Norms of commandand prohibition, whosefulfilment is monitoredand whose violation ispunishedPermissionrestrictions Ways of enforcement:Compulsory executionCompulsory sanctionsLaws and legislativedecreesAdministrative actFinancial transfers, i.e. thetransfer of financial meansto authorised recipients, forexample social benefits andhousing allowanceFinancialincentives throughsubsidies, funding, andgrantsNegative incentivesthrough duties, taxes andfeesCreation of artificialmarkets, for examplethrough education vouchersInformation and publicitycampaigns, for examplethrough appeals andrecommendations viamass mediaIndicativeand informative plansand programmes, forexample through govern-mental declarationsand declarations ofintent, as well as theannouncement of referencepointsSymbolic rewards,for example throughtitles, awards and publiccommendationProcedural regulations, forexample the determinationof codes of practiceWhat we can learn from this is that around the beginning of the 1980ies thereduction of governmental and administrative acts of the command-and-control-typehad already long been surpassed. The following remarks by Klaus König and NicolaiDose from the year 1993 confirm this:– Given a set of values, information programmes merely convey informationthat is perceived to be essential in order to be able to act in accordancewith the respective attitude. For instance, when customers are thus warnedto refrain from eating foods that have gone off, it is to be expected thatnobody would eat foods on purpose that would be detrimental to theirhealth.– Persuasion programmes, however, are often related to an interferencewith sets of values which in many cases begins to be effective only inthe long run, for instance when a careful use of the natural resources isbeing advocated. Here, we can fall back either onto a persuasion strategywhich is oriented towards the emotional sphere, and which ties into moralcategories and builds upon emotions, or onto a persuasion strategy whichis oriented towards the rational sphere. The former type of persuasionstrategy is suited to the realisation of relatively short-term goals, since itbears reference to existing value sets that need to be activated emotionally,and potentially need modification. In contrast, the latter type of persuasionstrategy is only suited to bring about long-term changes in behaviour.We can thus summarise that both information and persuasion programmes arecases of nudging in a generalised form.- 2 -2. In terms of the necessary contextualisation of the concept of nudging, we mustdifferentiate between two related but separate contexts:The first context is that of the theory of regulation, and can be labelled with the term"ruling through signals". The function logic of this mode of governance has beencharacterised by Claus Offe as follows (2010, p.2):The third family of policies [besides coercion and material incentives, G. F.S.] is designed to affect courses of action through the sending of signals,defined as the dissemination of information which, if accepted as valid andincorporated into the beliefs of target actors, will modify their course ofaction. "Signals are suggestions from the government. It encourages orrecommends certain choices […] and discourages others. With signals,in contrast to regulations, there is no enforcement and no compulsorycompliance." […] The role of signals and signalling has been widely studiedin economics, such as the signalling activity of central banks (concerningthe development of interest rates), prospective employees (concerning theirproductivity) or business partners (concerning their trustworthiness). Publicpolicies of the third type […] operate by instilling motivating beliefs in diffuseaudiences with the expectations that courses of action will as a result bemodified in intended ways. The considerable attraction of the practice ofruling through signals is that it appears less costly compared to the use (orultimate and credible threat) of coercion as well as the promise of costs andrewards attached to (un)desired courses of action.If we let this paragraph sink in, we will quickly realise that what we just read was infact a short profile of libertarian paternalism.The second context is one of communication theory and could be entitled“Governance as and by Communication”. In his inspiring discussion paper with thetitle “The Powerlessness of Powerful Government”, Stein Ringen (2005) describesin more detail what is meant by this: Ringen establishes – and we agree with him– a tendency from power towards authority, and breaks down their relation to thefollowing and simple formula: the less governance is able to rely solely on power, themore important authority as a resource of public policy will become:Power explains a government’s ability to get decisions made. But poweris not what regulates its ability to get cooperation from its bureaucraciesand compliance from its citizenry. For this, it does not help governmentsto be able to give orders, at least not very much: they need to be ableto persuade. Persuasiveness is not contained in the weight of power; itdepends on the strength of authority. Power is a necessary condition for agovernment to be able to rule, but not a sufficient one. Once it is in power,its ability to rule depends on authority. Weak governments struggle forpower. Powerful governments are beyond that but not beyond struggling.They need to find the authority that can enable them to translate power intorule.- 3 -This performance of translation, however, can only work when those in governmentmanage to convince the recipients of their policies of the necessity of their voluntarycooperation, but only he who disposes of authority can convince:A government depends, for what is not under its control, on the obedienceand compliance of others. Legitimacy, power and so on may oblige andincline others to obey but cannot enforce obedience, at least obedience inthe form of willing and active co-operation. […] Governments that want torule must […] give them [their citizens, G. F. S.] reasons to obey. That theycan only do by persuasion, never by use of power.We take these considerations of Steiner’s as a plea in favour of the strategyof nudging. However, we do believe that taken by itself, without a doublecontextualisation (ruling through signals, governance by communication), theconcept of nudging is not meaningful.Translation from German: Karima LaborenzReferences:Jann, Werner (1981), Kategorien der Policy-Forschung, Speyerer Arbeitshefte Nr.37.König, Klaus/Dose, Nicolai (1993), Klassifikationsansätze zum staatlichen Handeln,in dieselben (ed.), Instrumente und Formen staatlichen Handelns, Köln/Berlin/Bonn/München, p. 1ff.Offe, Claus (2010), Signals and Information as a Resource of Public Policy(unpublished manuscript).Ringen, Stein (2005), The Powerlessness of Powerful Government (unpublisheddiscussion paper).- 4 -

Nudging: Neither a Novelty, nor a Promising Lead – Unless in Context

Gunnar Folke Schuppert

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Nudging: Neither a Novelty, nor a Promising Lead – Unless in Context

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