Some governments have responded to the COVID-19 pandemic by developing policies based on ideas from behavioural psychology, especially ‘nudge theory’. But the pandemic has highlighted two important failings of ‘nudging’ – its libertarian opposition to state intervention; and its lack of any theory of psychological interiority.
First popularised by Harvard law professor Cass Sunstein and University of Chicago behavioural economist Richard Thaler, nudge theory has been credited for many policies that are common-sensical – positioning hand sanitisers in prominent locations in receptions of buildings accompanied by colourful signage will increase usage; citizens should be advised to sing happy birthday while washing their hands as this will ensure their handwashing lasts for the recommended duration; tissues might be placed within easy reach of office workers to discourage unprotected face touching; etc. Continue reading
The widespread contemporary understanding of the New Haven School runs as follows. In the 1940s American power rises. Shrugging the formalism of international law, Hans Morgenthau, George F. Kennan and great power politics announce a new paradigm. Myres McDougal senses the zeitgeist the realists have captured and leads a ‘legal’ response. Positivist social science is instrumentally refashioned as ‘policy-science’, the lawyer policy-scientist pitched as the anti-communist power behind the throne. The story tends to be completed by one of two alternative conclusions. For some critics this ends as a story of Cold Warrior lawyers hawking a method skewed to imperial American policy. A cautionary tale of lawyers losing sight of legality in a clash between ‘realism’ and ‘legalism’. A moral of this critical story tends to be that policy-oriented lawyers were bought out of their vocation by hegemony and neoliberalism. Continue reading