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(École de Droit de Sciences Po, C3E et ESPOL), JACOPO MARTIRE

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Dans le cadre du projet
«NUDGE – Extralegal Normativities and Public Policies» (École de Droit de Sciences Po,
C3E et ESPOL),
nous avons le plaisir de vous inviter à la séance de notre séminaire qui accueillera
JACOPO MARTIRE, Professeur de Droit à l’Université de Stirling
sur le thème
«Liquid modernity, East Coast v West Coast and the (fleeting?) allure of nudging»
Abstract
Zygmunt Bauman has famously described modern society as “liquid”. He opposes “solid” to “liquid” societal forms. According
to Bauman both solid and liquid forms are modern. But while the first represented a recasting of old traditional structures
(e.g. the estates, the corporations) into an improved, more efficient, version of solidity, the latter mark a new stage in the
process of modernization, a final dissolution of previous forms. Namely, the difference between solid and liquid modernity,
rests in the collapse of the modern illusion of a telos in human progress, brining to the fore an unprecedented process of
individualization.
I would suggest that liquid modernity is having a “virtualising effect” on our conception of the individual. Building on Gilles
Deleuze’s concept of the virtual, I speculate that the individual will be increasingly understood as a shifting subject shaped by
the transient concatenations between his/her bodily predispositions, the environment, and his/her choices; a protean being,
changing from one moment to the next and not a static and stable entity.
Given this picture, it seems to me important to explore an important normative question linked with such developments. Prof.
Roger Brownsword has famously distinguished between so-called “East Coast” and “West Coast” modes of regulation. While
the first focuses on classical “ex post” punishment of illegal behaviour, the latter, taking advantage of modern technologies
and structural design, aims at preventing “ex ante” any illegal behaviour. Brownsword has forcefully rejected the allure of the
“West Coast” mode by arguing that preventing tout court a specific behaviour would impinge on human dignity because the
individual would not be able anymore to do “the right thing for the right reason”, but would be forced to follow an inescapable
prompted response.
In the wake of the “virtualising turn”, we are faced with an anguishing choice. The virtual nature of individuality necessarily
undermines our capacity for a consistent social attitude. If there are many selves at many points in time, often
contemporaneously, is it not too much asking individuals to exercise a coherent and encompassing control on their own
actions? On the other hand, Brownsword’s argument retains its strength. Confronted with the melting of social and individual
“solidities” we need a normative anchor that would avoid the transformation of our society into a version of “The brave new
world”, and that anchor could be a renovated conception of human dignity as a space to make informed and responsible
choices.
A way out of this conundrum might be represented by the rise of nudging techniques. Nudging looks like the soft side of
West Coast regulation: it shepherds individuals towards a desired outcome but it does not prevent completely conscious
decisions, leaving a considerable space for personal independence. But does nudging really evade the East-West Coast
dichotomy? Are we experiencing a genuinely original form of regulation or are we confronted with a style of socialmanagement that, in the end, falls back into old tropes and well-trodden avenues?
Vendredi 11 mars 2016 de 11h00 à 13h00
Université Paris 2 Panthéon-Assas
92 rue d’Assas, Paris 6ème - salle 411
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