Ethic Theory Moral Prac (2017) 20:597–616 DOI 10.1007/s10677-017-9805-2

The Beneficent Nudge Program and Epistemic Injustice Evan Riley 1

Accepted: 24 March 2017 / Published online: 5 April 2017 # Springer Science+Business Media Dordrecht 2017

Abstract Is implementing the beneficent nudge program morally permissible in worlds like ours? I argue that there is reason for serious doubt. I acknowledge that beneficent nudging is highly various, that nudges are in some circumstances morally permissible and even called for, and that nudges may exhibit respect for genuine autonomy. Nonetheless, given the risk of epistemic injustice that nudges typically pose, neither the moral permissibility of beneficent nudging in the abstract, nor its case-by-case vindication, appears sufficient to justify implementing a nudge program in worlds like ours. Drawing on Miranda Fricker’s account of epistemic injustice, I argue that the cogent defense of any nudge program, relative to worlds like ours, stands in need of serious attention to its potential for fostering or sustaining epistemic injustice. A more specific point hinges on recognizing a form of epistemic injustice not enough attended to in the literature to date, which I call reflective incapacitational injustice. This includes relative disadvantages in the attaining of (or opportunity to exercise) the capacity to engage in critical reason, such as the capacity to go in for potentially critical reasoned deliberation and discursive exchange concerning ends. Since Cass Sunstein’s First Law of behaviorally informed regulation would be taken, in worlds like ours, to justify indeterminately many nudges leading to such epistemic injustice we have general grounds for doubting the moral permissibility of this nudge program. We should hence oppose the implementation of any such program until it is shown not to violate the demands of epistemic justice. Keywords Nudges . Epistemic injustice . Critical reason . Fricker . Sunstein . Manipulation

1 Introduction Nudges, part of the basic stock-in-trade of behavioral economics, remain controversial despite their increasing ubiquity. Even beneficent nudging, effectively championed by Richard Thaler and Cass Sunstein (T&S) (Sunstein and Thaler 2006; Thaler and Sunstein 2009 [2008];

* Evan Riley [email protected]

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The College of Wooster, Scovel Hall—Department of Philosophy, 944 College Mall, Wooster, OH 44691, USA

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Sunstein 2014; Sunstein 2015), has been the focus of much recent critical discussion (Sugden 2008; Bovens 2009; Hausman and Welch 2010; Rebonato 2012; Blumenthal-Barby and Burroughs 2012; Blumenthal-Barby 2013; Cohen 2013; Wilkinson 2013; Conly 2014; Saghai 2013; Waldron 2014; Hansen and Jespersen 2013; Barton and Grüne-Yanoff 2015; Grüne-Yanoff 2015).1 This is partly due to the awareness that nudges, while not coercive, are nonetheless typically manipulative, and there is renewed philosophical interest in clarifying the nature and ethical status of manipulation generally (Baron 2003; Greenspan 2003; Coons and Weber 2014). Matters of pressing ethical significance are at stake, as we find ourselves confronting both increasing technical power enlarging the scope for and scale of manipulation at a distance, and increased normalization of such manipulation. As Allen Wood observes Bmodern society has made people even more vulnerable to calculated mass-manipulation than they were in premodern social orders^ (Wood 2014). Embracing any general policy of nudging is expected to increase this calculated mass-manipulation, and that should give us pause, philosophical objections to paternalism aside.2 Yet, all this not withstanding, these circumstances also clearly present opportunities to do good in new ways and on a historically grand scale (Shogren 2012). T&S emphasize this latter thought in their eloquent and influential defenses of beneficent nudging (Sunstein and Thaler 2006; Thaler and Sunstein 2009 [2008]; Sunstein 2014; Sunstein 2015). They do not simply hold that nudging is in some circumstances morally permitted and practically called for. Rather, they favor and would have us foster the broad adoption of the beneficent nudge, to be deployed as a general purpose tool for good, across the institutional milieu of contemporary social life.3 In a recent defense of implementing this—which I call the beneficent nudge program (BNP)—Sunstein has gone so far as to christen and defend the BFirst Law of behaviorally informed regulation: In the face of behavioral market failures, [beneficent] nudges are usually the best response, at least when there is no harm to others^ (Sunstein 2014). The central question considered here is whether—as Sunstein presumes in endorsing the First Law (FL)—implementing the BNP is morally justified in worlds like ours.4 I argue for two claims. First, it is clear that the nudge theorists have not yet provided a cogent and robust rationale for the BNP revealing its moral permissibility. The argument for this claim is straightforward. The demands of epistemic justice, whatever their precise nature, are clearly relevant for determining an answer to that central question, and the nudge theorists do next to no examination of those demands and hence cannot get the question properly in view.5 Second, the nudge theorists’ explicit rationales aside, it is simply not obvious that 1

This is a selection from what is a very large and still growing interdisciplinary literature. The nudges about which there is particularly lively philosophical controversy are those intended to be welfare promoting for the nudgee(s). 2 For the purposes of this paper I assume (with T&S) that at least some forms of paternalism are acceptable. 3 To appreciate the social power and worldly reach of nudge theory and practice (beyond the initial effects of Nudge’s having been very widely read and discussed) recall that Sunstein served directly in the Obama administration as head of the White House Office for Information and Regulatory Affairs. Thaler has advised David Cameron, who went on to form ‘the nudge unit’ within the Prime Minister’s Office in the UK. And the approach has rapidly proliferated—for instance, the OECD has embraced it. For a further sense of the scale of its reach see the webpages for The European Nudging Network. 4 The extension of the category of social worlds like ours includes our world and all those near possible worlds beset by similar characteristic challenges to respecting social justice and realizing human well-being. See section 6. 5 There is a very brief discussion and endorsement of a publicity principle in Nudge (T&S 2008:247–249). There is some discussion of JS Mill’s epistemic argument in Why Nudge but that discussion focuses on justifying paternalism. In neither book is there any mention of epistemic injustice and justice, let alone careful discussion of the issues.

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implementing the BNP is, in general, morally justified in worlds like ours. The reasoning for this is slightly less straightforward. First, there is clearly a standing risk of epistemic injustice that even beneficent nudges pose simply in virtue of what they are and how they function. Second, it appears plausible that any implementation of the BNP would multiply the occasions for those risks. Third, it also seems that, given (i) the very broad extension of Sunstein’s conception of a behavioral market failure, (ii) the force of the FL, and (iii) the presence of the availability bias, if the BNP were implemented under the rationale provided by the FL the use of nudges would increase across social life as we know it. This gives us reason to doubt that the implementation is morally justified with respect to worlds like ours. I acknowledge both that nudges are in some circumstances morally permissible and indeed called for, and that nudges may exhibit respect for autonomy (5). Nonetheless, neither the potential moral permissibility of beneficent nudging in the abstract, nor its case-by-case vindication, appear sufficient to justify implementing the BNP (under the presumptive authority of the FL). I herein draw on the seminal account of epistemic injustice developed by Miranda Fricker and others (Fricker 2007; Medina 2013; Fricker 2013). I suggest that we should recognize a form of epistemic injustice not enough attended to in the literature to date— reflective incapacitational injustice (4). This form of epistemic injustice is reflected in failures to support the development and(or) exercise of our reflective capacities for critical reasoning— hence the name. I go on to argue that implementing the BNP is expected to subject people to a standing risk of at least this sort of epistemic injustice, exploring three illustrative cases (7). After addressing a pair of likely responses, I conclude that the defense of the BNP needs, at least, a rethinking in the light of (i) a suitably general and detailed conception of epistemic injustice and (ii) an appropriately rich conception of the phronimos—the person who reasons practically reliably well. I provide a preliminary sketch of some constraints on such a rethinking. The basic hope is to alert those inclined to embrace or accept the BNP to the risks of injustice that nudging appears to carry, and to suggest that standard sorts of nudging—even when beneficent— not be allowed to crowd out or undermine either the development or the exercise of critical reason.

2 Nudges Explained Nudging in the relevant sense is a kind of intentional intervention in the choice architecture within which the target of the nudge (the nudgee) is presumed to be liable to choose and act so as to incline the nudgee in a direction intended by the nudger.6 Nudges leave the nudgee’s previously salient options on the table, do not dramatically alter the incentives, and aim to incline the target toward a subsequent action or outcome in a way that is nonetheless also easily resisted (Thaler and Sunstein 2009 [2008]).7 Hence, nudges are not restrictive of liberty in the disturbing way that characterizes clear coercions.8 T&S officially endorse only those ‘Choice architecture’ is a term of art for those aspects of the circumstances having some salience for an agent or chooser. Some incentivizing can be nudging though dramatic shifts in the relevant incentives count as shoves not nudges, since they are less easy to resist. 8 Any shifting of elements of the choice architecture will take some possibilities of action, using an extremely fine-grained analysis of action types, off the table. If I take the salient choice to be between obtaining a very large serving of soda by using this particular easily available cup and any other option, any shift that makes getting that cup less easily available will count as a restriction of my previous salient liberty. But adopting such a fine-grained analysis is tendentious. 6

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nudges plausibly viewable as beneficent—nudging (sans qualification) is a more general category.9 Crucially, nudges operate by engaging the mind of the target in a way that is not per se an invitation into (or actualization of) explicit, open-ended, potentially critical deliberation or practical reasoning. Nudging instead typically activates what Yashar Saghai calls Bshallow cognitive processes^ (Saghai 2013). This term covers both nondeliberative cognition, of which the cognizer is not reflectively aware, and narrowly channeled explicit rational inference where, yet, genuinely open reflective or fully critical deliberation, (e.g., on the overall choice-worthiness of one’s ends) is not engaged. Reflection on this shows that nudges are indeed properly conceived as manipulations. For I take manipulations to be, simply, actions (or active mechanisms) aimed at moving people to behave in some preferred way, neither coercively, nor merely by explicit appeal to relations of established authority or agreement, and not by directly engaging a person’s fully reflective capacities of potentially critical reason.10 Since nudges indeed operate precisely by not engaging the nudgee’s fully reflective critical capacities (directly), they count as manipulations. This is so despite the fact that some nudges present nudgees with truths, plausible claims, or information of which they were not previously aware, and thereby get them engaged in relevant, practically oriented, rational inference.11 In short, nudges should not be confused with other kinds of interventions such as the issuance of commands or requests per se, explicit public mandates or bans, credible serious threats, large bribes, that combination of standing command and threat arguably characteristic of the core of systems of positive law, explicit invitations to open and full deliberation, or open and direct attempts at fully reasoned persuasion between those regarding each other as epistemic and social peers.12 Neither should nudges be conflated with bodily coercions such as incarceration, the administration of chemical agents, or literal shoves and pokes. By contrast, nudges are intentional efforts to move people through engaging their (imperfectly) rational psychologies and sensibilities and yet, again, not by directly addressing them in their full capacity as properly reasonable and potentially critical beings. It bears emphasis that one can consciously deliberate (e.g., in cases of consumer choice) without having one’s full capacity for critical reason engaged. The category of nudges so conceived is broad. It includes those manipulations found in advertising and propaganda, effects of architecture and design, and various features of educational programs, bureaucracies, schooling, family life, and training regimens. Crucially, instrumentally well-designed nudges will track and try to take advantage of those cognitive patterns or habits we are inclined toward as a matter of typical human reasoning, knowledge, and sensibility.13 The relevant habits are often useful or even practically indispensable, as the 9

I discuss what makes for full beneficence in the relevant contexts below (5). Mine is a non-moralized and quite broad conception of manipulation—its extension includes some traditional economic incentives. This does not make those necessarily unjust (epistemically or otherwise). 11 Sunstein seems not to fully appreciate this important point. He claims that since some nudges foster conscious deliberation at least these accordingly avoid Bany semblance of manipulation^ (Sunstein 2014: 149). This is mistaken since one can be manipulated into conscious deliberation. 12 Some argue that the provision of relevant information is per se a typical form of nudging (Cohen 2013). This is misleading. For surely some provision of relevant information is intended to directly engage a person’s fully deliberative potentially critical faculties and reflects the recognition of an epistemic peer by making available relevant reasons—it thereby constitutes a non-nudge. 13 T&S discuss this in the terms of dual-process theories of human psychology. But their basic argument does not depend upon commitment to any precise theory of the mind. 10

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psychological literature on heuristics indicates (Tversky and Kahneman 1974; Kahneman 2011). Yet this usefulness is highly contextually constrained; it is plainly not a matter of their reflecting globally sound reasoning. Familiar examples of such cognitive habits include those tracked by ‘framing effects’, the status quo bias, the availability heuristic, the planning fallacy, implicit prejudicial biases, stereotype threat, hyperbolic discounting, and loss aversion. A familiar general method of nudging is to shift from the original default setting to a more preferable one, given one or more of the above patterns thought to be at work.14 Some specific (beneficent) nudges discussed and defended in Nudge include: Cafeterias: removing trays from cafeterias, and attractively presenting healthful options whilst making unhealthful options slightly less conveniently available (thought to result in more healthful eating); Save More Tomorrow: getting people to commit a portion of future raises towards their retirement savings by making that the default option (thought to increase the savings rate); Less Drinking Than You Think: giving college students data that is expected to move them by appeal to the thought that the vast majority of their peers are not regular binge (or heavy) drinkers (thought to result in less binge (or heavy) drinking in that population); Flies: etching images of houseflies into public urinal bowls (which reduces splatter).15 T&S make their argument for the BNP partly by direct appeal to those cases, consideration of which indeed shows that beneficent nudging is possible and at least potentially morally permissible. Yet implementing the BNP implements a practice of nudging across contemporary social life, so these considerations do not constitute a cogent justification. The prima facie attractiveness of implementing the program appears to have three further roots. First, the theoretical basis of the BNP is informed by recent work in social psychology, cognitive (and neuro)science, and behavioral economics. This work is alleged, in virtue of its purported departure from a neoclassical model of rationality, to give us a fresh and empirically more adequate picture of how human beings (currently) actually think and behave.16 Second, the particular subclass of nudges being championed under the auspices of the BNP are conceived as interventions intended and expected to benefit the nudgee (and to leave third parties at least in no serious way worse off). Third, since nudges leave the salient options as they are and do not directly engage the nudgee’s fully critical deliberative capacities, many possible costly and time-consuming non-nudge actions and policies are in fact (if not in principle) discouraged or sidelined. That is, part of the initial charm of beneficent nudges is that they appear to be inexpensive and easy to implement, relative to the cost and difficulty of implementing more traditional social or institutional policies (John and Richardson 2012). This is particularly so when the alternative would require mobilizing a large population though collective critical engagement and reasoned deliberation. I recognize all this.17 I also find it very plausible that that the general character of nudges leaves it open whether any particular beneficent nudge, or implementation of a beneficent ‘Default setting’ can function as plain description of a piece of programmed software that an agent confronts. It can also function at a higher order of abstraction wherein it describes the cognitive architecture of the agent-insitu. Notice that a change of the first kind of thing could result in a change with respect to the second kind of thing. 15 These examples are all found in Nudge and elsewhere. See Thaler and Sunstein op. cit. Thaler and Sunstein 2009, pp. 1–3, 105–119, and 68–9 respectively. 16 Not everyone in the know accepts this. Some economists argue that the improved empirical adequacy of behavioral economics (relative to the neo-classical model of rationality) is more aspirational than actual (Berg and Gigerenzer 2010). 17 Admittedly, I do not find these compelling reasons to favor the nudge program. 14

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nudge mechanism, is, from the moral point of view, called for, permitted, or ruled out.18 As in other areas of reasoning practically, the surrounding contextual details are decisive for answering these questions (Blumenthal-Barby and Burroughs 2012). Yet there is nonetheless a general concern with implementing the BNP that goes unaddressed by the nudge theorists— the real risk of epistemic injustice that nudging, in our circumstances, poses. This is not a mere fashionable slogan; I explain what epistemic injustice is immediately below.

3 Epistemic Injustices Introduced In Epistemic Injustice: Power and the Ethics of Knowing (PEK)(Fricker 2007) and in more recent work (Fricker 2013), Miranda Fricker elucidates a category of basic wrong having both epistemic and moral dimensions. There are three insights of her work particularly worth emphasis here. The first is simply that there is such a general category of injustice—those the nature of which cannot be properly articulated without particular reference to the victim’s epistemic nature, status, or capacities.19 Second, it appears that the discriminatory forms of epistemic injustice Fricker is most concerned with will typically make it difficult to realize the norm of freedom as non-domination, where the latter is conceived as a highly generic political ideal (Fricker 2013; Pettit 1997). If she is correct, respect for epistemic justice is an overlooked but basic criterion for securing conditions of substantive freedom in our complex political and social settings. Third, the extension of the category of actual and potential epistemic injustices is more well-populated than we might at first think. If we accept these points, the justification of any far-reaching policy proposal such as the BNP must address them if the proposal is to be in the end justified. I clarify the first two insights in this section and, in the following section (3), I make the case for the third. How are we to understand the notion of an injustice here? I propose this admittedly broad conception: A situation is well characterized as exhibiting injustice in that it exhibits an unchosen and undeserved contingent, fungible, relative disadvantage, pertaining to the achievement of something central to a successful human life, and which (once uncovered) warrants consideration on the part of one’s peers in the social and political order.20 (An action can of course create an injustice in this sense without being an intentional doing of injustice.) I take no stand as to what exactly would count as due consideration and response in every such case, and, further, not every case of injustice so-conceived warrants state intervention or other official public response. Some such cases clearly do—in particular those that are very grave, or fairly easily avoidable or correctible without creating other wrongs. Moreover, if injustice is expected to come from some action or policy this clearly counts pro tanto against its moral permissibility. Let this suffice. Our epistemic capacities are those capacities that are properly exercised in cases of knowledge. So, while the capacity for sound reasoning is surely epistemic, capacities for recognizing and trusting one’s genuinely reliable peers, and for being correctly taken as trustworthy or reliable are also epistemic. The capacities both for generating and exchanging putative knowledge, whether activated in perceptually mediated exchanges, or as individual 18

I argue for this below (5). This tracks human nature as typically that of a potential and actual knower, and so as one who is inference prone (a giver of and asker after reasons). 20 As this last feature implies, injustices are socially realized. 19

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attempts to make sense of one’s experience, do not always involve explicit second-order reasoning. For, in some interesting cases, as Fricker emphasizes, we will frequently generate the judgments more or less spontaneously through the heuristic mechanism of the stereotype (Fricker 2007; Tversky and Kahneman 1981). Where a stereotype is prejudicial (e.g., racist) we have a potent possible source of epistemic injustice—in particular we have the makings of what Fricker calls testimonial injustice (Fricker 2007; Medina 2013). Such an injustice is constituted as an inapt credibility assessment of the testimony of an epistemic agent, where the assigned credibility is mistakenly low in virtue of an identity prejudice.21 A second Frickerian type is hermeneutical injustice, which a victim suffers in virtue of a conceptual lacuna in the available cultural resources, blocking her from (for example) being able to successfully integrate her lived experience with her selfconception, or blocking others from properly understanding her actions or her life.22 In such a case the person may have to go to heroic lengths of conceptual and psychological creativity and effort to attain a coherent self-understanding, and this very circumstance appears to be an injustice.23 These kinds of discriminatory epistemic injustice may rise to the level where immediate corrective action or restitution is appropriate. Yet there are other serious worries afoot, and here I turn to the second insight. The specific instances of epistemic injustice that should most concern us are those cases interwoven with and supportive of other more drearily familiar forms of injustice. When, for instance, some testimonial injustice is generated through a stereotype that functions to denigrate a group the members of which are systematically subjected to unfair disadvantage here and elsewhere, it takes on an even more disturbing caste. Fricker reminds us of a real-world case in this connection: the thoroughly shoddy police investigation of the racially motivated Stephen Lawrence murder in London in 1993 (Fricker 2013).24 As the Brooks/Lawrence case shows, testimonial injustice may plausibly constitute a violation of what is quite basically owed to members of the political community as such. In short, if we discount the category of epistemic injustice, we risk overlooking genuine serious wrongs, wrongs that can be and often are enabling and amplifying of other more obvious forms of injustice. Such epistemic injustices are plainly a destructive and disturbing feature of our social worlds, and not always to be thought of as injustice in a minor key.

4 Reflective Incapacitional Injustice T&S and Fricker can each be seen to recognize the significance of recent work in the behavioral sciences and to appreciate the relevance of that work for productively addressing social problems with profound ethical dimensions. Yet there is a stark difference in the grounding presumptions and practical purport of the two projects. T&S propose and defend 21

For instance, consider a state trooper concluding that an African American driver is probably not the owner of the expensive vehicle he is driving, contrary to what he truthfully claims, and where the mistake is due to the presence of a potent racial stereotype informing the trooper’s thinking (Fricker 2013: 1319). 22 Consider a person undergoing gender dysphoria where the social and conceptual surroundings make it quite difficult for the person to be recognized by others or indeed to self-recognize in those terms. 23 José Medina uses the notion of an epistemic hero in his The Epistemology of Resitance (Medina 2013). 24 Duwayne Brooks, who directly witnessed the murder of his friend Stephen Lawrence, was sidelined and ignored in the initial investigation. For the disturbing details concerning institutional racism in the Metropolitan Police Service see The Macpherson Report (Macpherson 1999).

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a project—the BNP—that, in general, takes the relevant cognitive and behavioral patterns as settled tendencies to be harnessed for the welfare of an individual (or group) from outside.25 In their articulation and defense of the program to date, there is no evidence that careful thought has been given to the robust proper development of the higher-order critical reasoning capacities. Fricker, insofar as her focus is instead on neglected but pervasive forms of concrete injustice, is less sanguine about systemic error in our patterns of reasoning and behavior. Some of these, as she insists, should deeply disturb us for they are implicated in serious injustice and thus we are morally obliged to work towards their correction. T&S, though presumably sympathetic, have little to say in this regard, and it appears all might benefit from bringing the insights developed in PEK to bear in the context of considering the case favoring the BNP. Yet the extension of the category of epistemic injustice contains more than the focus of PEK suggests. As Fricker herself subsequently puts it, epistemic injustice is Ban umbrella concept, open to new ideas about which phenomena should, and should not^ fall under it (Fricker 2013). This is fruitful. One clearly important form of epistemic injustice not emphasized by Fricker is constituted by failures of education, where we take that term in its broadest sense to include not just provision of information and technical knowledge but the development of the capacity to reason critically, energetically and otherwise well. This capacity includes the various specific cognitive and deliberative skills that come in for discussion in the social science and educational theory literatures on critical thinking (Heijltjes et al. 2015). Yet it is not restricted to those skills. It surely also includes the willingness and ability to reasonably deliberate, not merely for oneself but as one amongst other recognized epistemic and cultural peers, and not merely of means to given or arbitrarily chosen ends, but with respect to the adoption or pursuit of the (individual or collective) ends themselves (Siegel 2003; Schmidtz 1994; Cohen 2009; Richardson 2005). We neither arrive in the world with this capacity, not do we simply receive it as a constituent or effect of sheer physiological maturity. Its development in one of us is, rather, a contingent culturally-mediated social and individual accomplishment. Further, it also appears that reasoning capacities of this sort need the right kind of setting, stimulus and ongoing support in order both to develop and to stay in good working order. Our basic rationality can be undermined in all sorts of interesting ways as recent work in the sciences of choice shows, and there are no obvious grounds to think that the capacity for critical reflective reason, at the second order, should be viewed as especially invulnerable (Tversky and Kahneman 1974; Frey and Stutzer 2007; Kahneman 2011.) Having the fully developed capacity to reason critically, energetically and otherwise well is plainly necessary for being a robustly epistemically fully-developed person. This is a truism whatever exactly we think critical reason consists in. Further, and more controversially, I take it that having this capacity is required for flourishing in the course of a human life in worlds like ours whatever sensible account we give of that.26 Still further, in some possible circumstances, including the actual ones of present social orders, many of those lacking this capacity are thereby at a relative disadvantage through no fault of their own (Anderson 2010; Shelby 2014). This circumstance appears to be a fungible contingent underserved relative disadvantage, 25 They are pretty clearly welfarists in their general approach. See Matthew Adler’s magisterial Well-Being and Fair Distribution for a very thorough articulation of this approach (Adler 2012). 26 This is controversial. A person who had many other constituents or markers of success in life would yet not be flourishing were he or she unable to exercise critical reason. I am signaling this commitment rather than arguing for it.

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attaching to an arbitrary feature of the person (e.g., where the etiology of the failure reflects a person’s being poorly educated from early childhood as a result of the circumstances of his or her birth). Since it pertains to the achievement of something central to a successful human life, once uncovered, it warrants some consideration on the part of one’s peers. If that is correct, injustice, in exactly the sense above, is on the scene. Accordingly, denying or neglecting to provide people the support, opportunities, or means necessary to develop those capacities, or making it relatively more difficult to develop and exercise those capacities, where this lack could be supplied or ameliorated without duly weighty sacrifice or some other comparatively serious consideration, is unjust. In addition, the character of this general kind of wrong cannot be made fully explicit without reference to the epistemic nature of the victim. Thus, it counts as an epistemic injustice. Call it reflective incapacitational injustice.27 This label suits insofar as the relevant kinds of injustices (whether brought about by particular agents or caused by extant social-structural factors) have precisely to do with (broadly) the incapacity of the victim’s actual or potential powers of critical reflective reason.

5 The Moral Permissibility of (some) Nudges Nudge has generated a very large multidisciplinary critical literature. Here I touch on some of the worries about nudges, and argue in particular that some nudges can indeed reflect respect for autonomy even robustly conceived. First, there is a class of worries to acknowledge and set aside. These all concern whether T&S have developed a genuinely coherent approach to normative political economy, both liberty preserving and a form of justified paternalism. T&S invite such worries since Nudge presents nudging as justified insofar as it reflects the tenets of a broader political philosophy they call libertarian paternalism, following some earlier work (Sunstein and Thaler 2006). T&S clearly think that since nudges are liberty preserving (by their lights), and since they are making the case for the use only of beneficent ones, the label suits. Paternalism is, after all, beneficent in intent. Some critics have, reasonably enough, pointed out that typical selfidentified libertarians understand libertarianism as essentially anti-paternalistic, whatever else it is (Hausman and Welch 2010; Rebonato 2012). This seems to make T&S’s use of the term a tendentious persuasive (re)definition. Since I am convinced nothing substantive hangs on this dispute, I am happy to give up the ‘libertarian’ label on their behalf. It is clear to all that the nudges most characteristic of the BNP are paternalistic.28 An interesting remaining pair of questions is, first, whether beneficent nudges are possibly morally permissible, and, second, whether they are expected typically to be so in worlds like ours. I address the first of these in this section and the second in the following section. Recall both the beneficence and the salient liberty preserving character of the subset of nudges being championed under the program. Intended beneficence is clearly not intrinsic to nudges since most advertising is subtle enough to count as nudging and is not remotely plausibly viewed as beneficent in intent. What is it exactly for an action to be beneficent? For my purposes, an action counts as beneficent iff the agent has good reason to expect the course ‘Reflective incapacitational injustice’ refers broadly. Its extension includes relative disadvantages both in the attaining of the capacity to engage in critical reason (e.g., the capacity to go in for sustained potentially critical reasoned deliberation and discursive exchange about ends, singly or socially) and in that capacity’s exercise. 28 Again I accept with T&S that at least some forms of paternalism are morally permissible. 27

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of conduct to benefit the patient and further, a grasp of this reasoning constitutes primary grounds upon which the action is undertaken. Can beneficent nudging (so understood) respect autonomy in a nudgee? One might doubt it, since nudging is precisely a mode of not directly addressing a person by openly engaging her capacity for fully autonomous deliberation and choice. Nonetheless, beneficent nudging can surely be respectful of a person in relation to her or his instantiated capacity for autonomous deliberation and choice. T&S are certainly open to this, though they operate with a more thinly conceived view of autonomy than the one in use here.29 First, suppose that being autonomous in one’s person requires having a mental capacity for robustly reflecting, critically, upon one’s various beliefs, aims, goals, desires, attitudes, preferences and commitments. Second, suppose one counts as autonomous in one’s person only where one can also exercise a degree of subsequent authority concerning these various beliefs, aims, desires, and so on. That is, it seems plausible to require, as at least partly constitutive features of personal autonomy, both the capacity for reflective evaluation and the capacity to give subsequent shape to one’s life and style to one’s character, grounded in such reflection (Dworkin 1988; Buss 2014). Finally, it seems that the mere possession of these capacities is not sufficient. That is, in order to be an autonomous person, one must also have brought or be bringing these capacities to bear on herself and in her life. Suppose that we accept this much, whatever further theoretical complexity we are drawn to in a full account of autonomy (Taylor 2005; Christman and Anderson 2005). Would it be possible to nudge a person, autonomous in this way, such that appropriate respect for them was maintained or reflected in the nudge? It seems so. For example, the nudging could function as a circumstantial prompt to bring effectively to mind a motivating desire, belief, or commitment favored by some process of personal reflective deliberation, perhaps in a context that would otherwise be expected to activate a different desire (or belief), disfavored by that very person in virtue of his or her having reflectively deliberated well. Nudging could clearly manifest respect for a person by serving the very ends developed or commitments made manifest or endorsed by such deliberation or reflection. This could even be explicitly acknowledged and embraced by the potential nudgee in advance of the nudge. Since such nudging would be serving the reflectively endorsed ends of the person as produced or made manifest through exercising the capacity in question, it is a clear way to respect this person in relation to his or her autonomy. I also accept that a nudge can count as showing respect for a person in her capacity for autonomy through the truth of a relevant hypothetical. More precisely, if the nudge is consistent with the ends that would be reasonably expected to be selected, were the person to exercise his or her extant capacity for fully critical reflection and deliberation, this too can manifest a kind of basic respect for this person, even where she or he has not yet reflected or deliberated on the matter at hand. This is so where the nudger honestly endorses the nudge itself partly on the well-motivated grounds that this hypothetical is plausible with respect to the potential nudgee(s). At least the nudger would need to lack serious epistemic reason to doubt the truth of this hypothetical and—what is perhaps more difficult to generate—have some good epistemic reason to accept it. In these cases though, the presumption should be that the particular nudge is morally permissible. Could we find a similar basis for morally permissible nudges of persons who do not at the time of the nudge, have any developed standing capacity for critical reflection or deliberation? Plainly so. A supporting example is afforded us by consideration of nudging in the service of 29

Sunstein identifies autonomy with freedom of choice. (Sunstein 2014:127 and following).

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fostering the development of such a capacity for autonomy in one who at first lacks it. Call this nudging serving Bildung. Clearly such nudging is respectful of personal autonomy since it is aiming precisely at fostering it on the grounds that it is worth fostering. In short, there are two general kinds of beneficent nudging that may plausibly be said to exhibit respect for autonomy in the person—either actual or potential. A lesson is clear: basic Kantian scruples not withstanding, particular beneficent nudging can be morally permissible, since it presumably is so in these sorts of cases. I expect T&S would concur with the forgoing reasoning, as it makes explicit some fairly broad grounds to take some beneficent nudging to be respectful of autonomy (though, again, this is a far richer conception of autonomy than they use). Yet note that this is merely the recognition of a conditioned possibility: beneficent nudges, without risk of serious harm to others, and which reflect respect for the autonomy of the nudgee, are possible. The question about typical nudges’ moral permissibility in worlds like ours is not yet addressed.

6 The Nudge Program and the First law In fact, there is a general serious tension between adoption of any broad practice of nudging (e.g., the BNP) and properly engaging people as epistemic justice demands. First, it is simply not clear that all the potential nudgers in all the various institutional contexts of contemporary social life would generally have the epistemic warrant to nudge the relevant people beneficently, in line with presumptive norms of reasonableness. Yet this is precisely what the FL calls for: it calls for the adoption of beneficent nudging as an all-purpose tool to efficiently address any behavioral market failure in whatever institutional context. On Sunstein’s conception, a social circumstance risks (or exhibits) behavioral market failure when it risks (or exhibits) a Pareto suboptimal outcome and that outcome stems from (or is expected to stem from) irrationality on the part of some agents in the absence of an intervention (Sunstein 2014: 34–50; Shogren 2012). The nudge theorists assert that beneficent nudges are to be in line with the ends of the nudgees Bas they themselves understand them^ but this point is quite underdeveloped (Sunstein 2014:19 and Thaler and Sunstein 2009 [2008]:5). There is very little in the pages of Nudge or Why Nudge? about how exactly to secure knowledge of what a person’s best rational self would choose, in all the various contexts with respect to which beneficent nudging is being promoted.30 Further, the FL says strictly nothing either about securing epistemic warrant, or respecting autonomy, and instead merely states that (beneficent) nudges are usually the best policy response to any behavioral market failure. The context makes it clear that Sunstein is contrasting beneficent nudges with coercive bans, but this is not an exhaustive categorization of intervention options. For political representatives, policy makers, and administrative and bureaucratic agents at every level are simply not limited only either to nudging (beneficently) or coercing, since direct address and invitation into reflection, deliberation, and critical reasoning are typically also among the standing options. Second, recall that nudges do not merely accidentally fail to directly engage the critical deliberative faculties of their targets. More precisely, they typically either seek to bypass 30

Presumably, T&S would have us rely on expert opinion in the social sciences generally. This is unsatisfactory however, in part (only in part) since expert opinion in the social sciences is quite far from a unified body of settled knowledge.

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genuinely open reflective deliberation entirely (as in Cafeterias and Flies), or they seek to jumpstart a narrow kind of practical thinking, with the expectation that it will take the agent down a previously selected inferential track to the desired outcome (as in Less Drinking… and Save More…). In either of these two typical kinds, genuinely open-ended reasoned reflection on the presently salient possible courses of action, on the part of the person or persons targeted by the nudge, is, for the moment, inconsistent with effectively realizing the primary intention of the nudge. That is, one nudges effectively in these two typical ways only by, at the time of action, not inviting, seeking or starting such critical reflection or deliberation. I take it to be clear that epistemic justice demands that we treat people as the reasoning beings we properly are. I further take it this implies that our communities, states, and social institutions should be actively fostering the capacities for reasoning well, and then should work to provide real and numerous opportunities for the exercise of those capacities across the social and political order and throughout human life.31 Inviting, seeking, engaging, and providing institutional structure supporting practices of reflective critical deliberation is called for by epistemic justice, and these two typical modes of nudging ordinarily fail to reflect due respect for this. To be clear, where epistemic justice plainly called for us precisely to so engage a person, it would be unjust not to do so and so unjust to attempt nudging in either of those standard ways in the relevant moment. Typical nudging is hence structurally prone to violations of epistemic justice in these sorts of circumstances—the sorts of circumstances that call for critical deliberation and reflection—even if we assume that the epistemic warrant problem could be effectively addressed. How should this risk weigh with us? This risk appears to me substantial enough to afford serious grounds for doubt that instantiating the BNP is morally permissible in worlds like ours. For it seems that the FL would be taken to provide a broad justification for any number of nudges, in worlds like ours, and were the BNP otherwise fully instantiated. Further, it appears plausible that a nonnegligible number of those nudges, taken to be justified under the FL, would, in such worlds, either lead to, or amount to, epistemic injustice. Here I sketch, in broad strokes, the reasoning in support of these claims. I take the following to be relevantly characteristic of our social world. First, our world is increasingly marked by pathological extremes of wealth and income inequality, and, across the globe, state and governmental institutions are increasingly subject to regulatory capture and outright corruption on behalf of cynical and powerful private interests. (Milanovic 2016; United States Senate 2014). This is the context in which the BNP is being promoted. Second, the overall information climate of the current epoch is increasingly a grotesque misinformation climate (Mintz 2012). Third, there is an increasing bureaucratization of the many transactions and social exchanges necessary for full participation in contemporary social and political life, and this trend does not clearly effectively serve overall human well-being or justice (Graeber 2015). We should expect that process (the bureaucratization) to be furthered by any implementing of the BNP. Fourth, there is an ongoing very serious planetary crisis produced by human impact on the environment, and which looks increasingly dire in its likely effects. Given these trends, it is plain enough that we have standing reason to be better fostering and securing the conditions of wide-spread critical reflection, including reflection on overall ends, both individually and collectively. Our situation thus informs what justice, epistemic and otherwise, demands of us, and it sets the context for evaluating any broad approach to social policy. Any approach that is inclined to 31

This is not to deny the importance of the various other ends of good social policy.

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encourage the ongoing acceptance of the status quo, and that fails to encourage and foster the conditions of real critical reflection is, prima facie, a kind of serious moral failure. In its typical operations nudging works precisely by not fostering such reflection, and thus appears to be prone to this style of moral failure on a broad scale.32 Notice that accepting the FL as Sunstein formulates and defends it is to accept a blanket license for nudging in a very wide range of cases—this reveals that is indeed an ambitious approach. For how would the reasoning of any potential nudger be expected to go under the rationale provided by the FL? Consider that if action of some human affecting type N is generally regarded as usually the best practice in circumstances C, whenever an agent finds themselves in C, going for some n instance of that type will have a prima facie attractiveness. Second, if actions of type N are further viewed as not per se morally wrong on the grounds that these are (i) beneficent, (ii) preserve liberty of choice and (iii) do not harm third parties, going in for one such n in C will normally be viewed as in general a not unreasonable thing to do. To the extent that a rational agent thinks it out to this point, she will likely conclude that, in C, an N-type act is probably best, or, if not best, not morally wrong (since beneficent, liberty preserving and harmless to others). Thus, given C, any n is to be deemed a reasonable option. The relevant C here is any circumstance that is plausibly viewed as a behavioral market failure broadly construed. Recall that a circumstance risks (or exhibits) behavioral market failure when it risks (or exhibits) a Pareto suboptimal outcome and that outcome stems from (or is expected to stem from) irrationality on the part of some agents in the absence of an intervention (Sunstein 2014: 16, 34–50). This category, as articulated by Sunstein, is very general and hence of quite large extension. It will include all cases of social interactions, or patterns of social interaction, wherein human well-being is less than it might be for some, where positive change is possible without making others measurably worse off, and where the suboptimality obtains in virtue of irrational behavior. Contemporary social life is apparently rife with such circumstances, if we accept the view defended in Nudge and Why Nudge?33 I propose to accept this here. Given all this, any potential official nudger, at any arbitrarily chosen time, is expected to have multiple cases counting as behavioral market failures falling within her domain of authority, and which thus look to be calling out for nudging. Further, were the BNP fully instantiated in the state and other social institutions, the class of potential nudgers would itself be relatively numerous and powerful. Finally, consider one form of the availability bias. Were the BNP fully instantiated, many of the potential nudgers, operating within their institutional settings, would be inclined to nudge whenever presented with a situation that seemed to call for a policy intervention, given merely that the nudge is available as the ostensibly efficient, all purpose, and non-coercive paradigm tool of the trade. This last point seems of particular importance. Any intervener having accepted the FL will look first to nudge, and not, for example, to invite the members of the community together for reasoned reflection on the relevant ends. It thus appears very plausible that actual nudging—whether beneficent or not—would become more ubiquitous wherever the BNP is instantiated and the FL accepted. 32

Again, I do not deny that nudging can serve us. It is the BNP, which regards nudging as the optimal tool of enlightened social policy that concerns me. 33 This is one place in which behavioral economics clearly departs from the assumptions of mainstream economics.

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It seems to me further plausible that at least some of the situations viewed as calling for nudging (behavioral market failures) are cases with respect to which epistemic justice demands something else. Some kinds of circumstances well classifiable as behavioral market failures are also those in which direct and fully respectful epistemic address, or an invitation to develop or exercise one’s capacities for genuinely critical reason, are called for. In the immediately following section, I consider three particular cases that I take to illustrate this last point. This is not intended to establish an empirically rigorous assessment of the precise level of risk of epistemic injustice associated either with the BNP or as regards some particular nudging program. Instead this discussion is intended to give us pause. This approach is an appropriate one, for the nudge theorists’ primary work aims in large part at providing a basic and abstract rationale for a practically-inclined and very broad approach to public policy in general. In this section, operating at a similar level of abstraction, I have argued that we do not know that the BNP is morally permissible and that we have some general reasons to doubt it. I illustrate this further below by appeal to three cases.

7 Three Cases I take the following cases to be emblematic of general problems proneness to which renders implausible the thought that the BNP is morally permissible in worlds like ours. The basic aim is to undermine our confidence in the nudge theorists’s ‘inference to the best social policy’ on the basis of their favored cases. Recently critics have been worrying in a serious way about a dearth of good social scientific evidence justifying nudging implementations. Till Grüne-Yanoff has forcefully argued that there is real lack of evidence concerning relevant causal mechanisms and that this undermines the justification for implementation (Grüne-Yanoff 2015). Yet this is only one narrow dimension of the justificatory challenge nudge theory faces. For, as I suggest here, were the BNP implemented in a world like ours, beneficent nudges will be licensed by the FL in many conceivable circumstances that call instead for more robust respect for, and concern with, our status as potentially critical and fully reasonable agents. First, let us imagine the operations of some local municipal board of elections. Suppose that the municipality is plagued by low electoral turnouts and stipulate that, if the community could be brought to a deeper engagement in its political life, all would benefit, even if not strictly equally. Suppose that the board, having accepted the lessons of nudge theory, proceeds to implement a program of beneficent nudges designed to increase turnout. Suppose that the nudges work to improve turnout, and even that this constitutes a marginal benefit to overall communal well-being. Yet, if this is all the board does, it is plausible to view their action as having constituted epistemic injustice. For notice that the board also has available a more ambitious policy option: a program approximating that defended in Deliberation Day (Ackerman and Fishkin 2004). That is, suppose the community could set aside three days for public discussion, debate, and dialogue leading up to its exercises in collective self-governance. Further assume that the full diversity of reasonable views in the community could be engaged, and that a conversational system directed by Bneutral arbiters, providing information and helping to manage discussion^ could be implemented as Sunstein would himself recommend (Schkade et al. 2007:939). The board would have here instituted a public practice that actually supports the robust exercise of the rational deliberative faculties, at both the individual and collective levels. Where that outcome

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was viewable as a feasible possibility in advance, it would be epistemically unjust not to have implemented it.34 Second, imagine a university of the early twenty-first century variety, and consider its academic advising. Suppose the advising aims to help the undergraduate student develop, revise and execute a reasonable plan for the course her education is to take.35 Allow that the advising is also properly intended to help the student develop into a person who can bring to bear a robust capacity for rational reflection and critical reasoning on herself, her projects (including her life projects), her society, and the broader world. Envision a particular advisor, A, and her student S who is considering possible major courses of study. S has multiple interests, inchoate preferences, and a motley of beliefs concerning herself, her future, the character of the departments she is considering working in, what kind of life has real value, and so on. Some of the relevant beliefs are accurate and decently wellgrounded and some are not, and her outlook and sense of self is also somewhat unformed and fragmentary. Suppose S would, if engaged in recurrent episodes of deliberation and regular discursive exchange (over the course of, say, eighteen months) both (i) strengthen her capacities for deliberative reflection, and (ii) become better able to make a deeply reasoned and appropriately personal approach to this particular life decision. I take it there is significant value in this. In such circumstances, ceteris paribus, it would be productive of epistemic injustice for A to intervene with respect to S in any way other than towards her achievement of these ends. Clearly it is epistemically unjust for A to nudge S into a hasty decision simply for A’s own trivial convenience, since (i) this costs S a precious opportunity for the development of her capacity for critical reason, (ii) the decision itself is important for her to make reflectively, and (iii) A’s trivial convenience is not good reason to treat S so. Yet even where A sets aside the question of what would most convenience A and instead properly looks to benefit S, nudging S will be productive of epistemic injustice whenever such nudging fails to respect the value in the development of S’s capacity for critical reason and in her bringing that capacity to bear on this very life decision. To appreciate this, alter the example. Suppose now that A, while conscientious, is skeptical of ‘Bildung’ and ‘critical reason’ talk, and is generally amenable to the BNP and the FL. A correctly recognizes that a nontrivial number of students, given no intervention at all, will fail to make a timely and sensible decision and end up a semester or more behind, or even drop out. A regards this outcome as a relevant behavioral market failure (let us suppose not incorrectly) and takes the FL to apply. Accordingly, A nudges S towards some particular course of study given her rough sense of S’s inchoate preferences, prospects, and abilities. This exhibits one kind of problem. For A is truly knowledgeable neither of what S presently prefers, nor of what S’s best rational self would prefer on actual S’s behalf. Though this nudge is modestly well-meaning, it does not count as robustly beneficent.36 So, further revising the example, suppose instead that A’s 34

Recall that epistemic injustice (reflective incapacitational injustice) arises whenever an action or failure to act has made it more difficult to exercise our capacities for critical reasoning or blocked the exercise of these. (See the final paragraph of section 4 above.) It is presumably more blameworthy when foreseen. 35 The rationality of this plan is partly relative to the student’s own actual and potential abilities, skills, prospects and interests, and with an eye to the social and economic milieu he or she is expected to enter upon completing the course. 36 Recall the standard in 5 above: the agent needs good reason to expect the course of conduct to benefit the patient and further, a grasp of this reasoning must constitute primary grounds upon which the action is undertaken.

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nudge of S is grounded in some truths about S that A has gleaned from careful consideration of S’s academic record, given A’s knowledge of how similar students have performed in the past. Let us stipulate that the nudge is hence reasonably expected to benefit S. So conceived, it fits as precisely the sort of beneficent nudge that nudge theory recommends. Yet no serious attempt is made to invite S to exercise and develop her own capacities as a critical reasoner, to reflect, and to begin to give her own style to her life and her character. This reflects a serious problem. If circumstances are as described thus far, and we accept the account of epistemic injustice given above, this nudge is epistemically unjust. More precisely, this nudge, in these circumstances, is a failure to provide an instance of the kind of opportunity necessary for the development and exercise of the relevant capacities—it is thus productive of reflective incapacitational injustice. If this opportunity could here be provided without weighty sacrifice or some other comparatively serious consideration, it is clear that it ought to be so provided, given the demands of epistemic justice. Though the nudge is beneficent, is expected to make S better off relative to a genuine prior risk, likely does not harm anyone else, and leaves S at liberty to choose, it fails her nonetheless. For this nudge, like the obviously unjust first example, would cost S a precious opportunity for the development and exercise of her capacity for critical reason, and this particular decision is, again, important for her to make reflectively. Instead of being subjected to a nudge, even a beneficent one, this is a circumstance in which S ought to be invited into critical reason and treated as an epistemic grown-up. There are three points worth emphasis. First, these two cases make clear that even satisfying all of T&S’s criteria of genuinely beneficent nudging is not sufficient to justify a particular nudge. Second, in circumstances (such as these) in which justice demands serious epistemic respect, any particular action that does not reflect such respect, where it easily could, is not obviously morally permissible. Third, it is also worth emphasis that, in practice, nudging under the FL might quite easily fail to meet the full complement of conditions that provide it a good rationale in other circumstances. Consider a third example, this one drawn from the pages of Nudge. Recall that kidney transplantation has become a routine medical procedure in the last thirty-five years. As the treatment has become more common, the demand for organs has increased and now looks to dramatically outstrip supply for the foreseeable future. T&S accordingly pose the following question: Do we have reason to confront people with a mandated choice on organ donation, and to subsequently nudge them to register as potential organ donors, as they are renewing their driver’s licenses at the local DMV? They answer in the affirmative, and embrace the thought that good nudging can tacitly appeal to de facto behavioral norms. In discussing Illinois’ version of this program they write (T&S Thaler and Sunstein 2009 [2008]:183–184): We think the Web page used to attract donors is an excellent example of good nudging…[S]ocial norms are directly brought into play in a way that builds on the power of social influences: B87 percent of adults in Illinois feel that registering as an organ donor is the right thing to do^ and B60 percent of adults in Illinois are registered.^ Recall that people like to do what most people think it is right to do; recall too that people like to do what most people actually do. The state is enlisting norms in the direction of lifesaving choices—and doing so without coercing anyone. That is, on the policy they endorse, we should nudge people to choose to be organ donors by tacit appeal to what are, for the nudgees, the inchoate but motivating grounds that many other people have so chosen. Yet that most people have chosen one option over another does,

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per se, nothing towards justifying or vindicating that choice. Of course, in some circumstances one might be justified in conforming to a public norm even where one also finds the substantive demands of the norm to be not well-founded. That is, that there is a de facto consensus supporting a social norm can feature as part of an overall sound rationale for going along with it (Bicchieri 2006). But that is not what is being appealed to by the authors of Nudge here, and this general form of rationale is plainly unsound. Further, manipulating people into this form of reasoning appears to do them epistemic injustice, for it (presumably) encourages a form of shoddy reasoning by eliciting it.37 This nudge encourages people to donate their kidneys on the inchoate grounds that other people have espoused a belief in line with this donation, and so both tracks and fosters what is a tendency to unthinking conformism.38 This undermines reflective, potentially critical, reasoning and is thus clearly productive of reflective incapacitational injustice.

8 Conclusion The nudge theorists call for us to embrace the FL and implement the BNP with little attention paid either to fully articulating the demands of epistemic justice or to carefully weighing the associated risks of epistemic injustice. If those in positions of social and political power accepted Sunstein’s FL in worlds like ours, this will be thought to generally justify ubiquitous attempts at nudging. For if nudging is thought to be usually the best response to any perceived suboptimality traceable to irrationality, those in positions of power, even with good intentions, will be found applying that tool everywhere to the extent that it is convenient. Yet it seems clear that, in some very typical circumstances, a plausible account of epistemic justice will call for non-nudge interventions. It follows that were the FL widely accepted, and the call for implementing the BNP otherwise heeded, widespread epistemic injustice ensues in worlds like ours. This suggests both that the implementation of the BNP here and now is morally impermissible and that the FL needs, at the least, radical revision and new theoretical surroundings. Consider briefly two replies to the line of thought articulated in this paper. First, Sunstein has recently argued that what I call the BNP does not pose a general threat to autonomous human agency since nudges per se respect liberty of choice. BMy basic response [to the concern that nudging threatens human agency] is that when nudges are in place, human agency is retained (because freedom of choice is not compromised).^ (Sunstein 2015:513). This is unconvincing to the extent that we take autonomous human agency to involve considerably more than mere liberty of choice, as we plainly should. Second, T&S have consistently pointed out that our typical cognitive resources are limited, that time is precious, and that arbitrary or accidental factors can be (and nearly always are) powerfully and surprisingly determinative of our choices and actions. I do not deny any of this, but I fail to see how it is supposed to count in favor of implementing the BNP. First, I have argued that it is doubtful whether the BNP is actually morally permissible given the demands 37

I am not defending a precise and general theory of good critical reasoning, but it surely involves an ability to make one’s ends the object of theoretical and practical reflection. The tendency to conformity relied on and reinforced in this nudge runs directly counter to this. 38 I do not deny that unthinking conformism might be, in some circumstances, an effective if inexplicit strategy for some human agents. I do not accept that this fact makes such cognition count as an excellence of human reasoning.

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of epistemic justice in our circumstances. I would favor instead far more robust support of institutions that effectively foster the development of, and protect the exercise of, critical reasoning and genuine autonomy. Indeed, if I am correct, we should oppose implementation of the BNP pending its being shown not to risk regularly violating the demands of epistemic justice; the burden of justificatory proof is on those who favor implementation. Second, I have granted that beneficent nudging is not objectionable per se and accordingly make no general argument against all beneficent nudges. Surely beneficent nudging is a kind of action that we ought to consider using on ourselves, but we do not yet have a sound and comprehensive defense of its appropriate conditions of use. The sound defense of some targeted nudging needs, but does not yet have, a general and detailed conception of epistemic injustice in our circumstances and an appropriately rich conception of the phronimos—the person who reasons practically reliably well. These are large and pressing theoretical tasks to be taken up in future work. (Though I cannot address it further here, a particularly important theoretical challenge lies in developing a unified and adequate conception of critical reasoning, building on both the insights of critical social epistemology and relevant work in the decision sciences.) T&S’s own case in favor of the BNP relies on a far too abstract defense of beneficent nudging per se for it exhibits a failure to recognize some distinctions necessary to get the demands of epistemic justice properly in view. As I have suggested, there is an important difference between (i) the liberty of choice between presently salient options or preferences (as in cases of consumer choice) and (ii) autonomous, potentially critical, and open-ended practical deliberation.39 Nudges respect the first simply in virtue of what they are, but this is fully consistent with their being widely deployed in ways that undermine the second. T&S fail to recognize this. On the vexed question of the true phronimos, though T&S emphasize that human beings do not consistently reason practically in ways consonant with the theory of rational choice as the maximization of expected utility, this recognition does not prevent them from relying on exactly that broad kind of theory as setting the normative standard for what counts as good practical reasoning. BUnlike Econs, Humans predictably err^ they succinctly insist (T&S Thaler and Sunstein 2009 [2008]:7). Yet this standard of instrumental rationality is too impoverished to serve us well in these contexts even in its more sophisticated variants.40 For there is a crucial difference between effective instrumental rationality (however that is to be understood) and fully sound, potentially critical, practical reason. Admittedly, there are no widely agreed-upon technically well-defined models of what overall sound practical deliberation concerning the content of ends is. Nor are we all agreed as to what precisely makes for an appropriately critical attitude towards our beliefs or the social norms of one’s surroundings. Yet that we lack such agreed-upon formal accounts is no reason to ignore these utterly crucial features of practical reasoning. Justice demands that we foster the capacities to reason practically well, all things considered, and that we respect the exercise of those capacities in ourselves and others. To begin to meet these demands we must first get (and keep) them in view. In closing, the following seems worth reemphasis. The properly effective defense of beneficent nudging will, I think, reflect the lessons of sections 4–7 above. In 5, I argued that nudging could well serve autonomous reflection and action. It could do so either by fostering 39

See sections 4 and 5 above. A particularly thoughtful sophisticated variant is the reason-based explanatory framework developed by Dietrich and List (2016).

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the development of the relevant capacities, or by reflecting the nudgee’s own proper actual or hypothetical autonomous reflection, and this would generally respect the demands of epistemic justice as articulated above. In short, epistemic justice in our circumstances gives us standing reason to foster and support our reflective capacities of critical reason, and calls for a broad commitment to provide opportunities for people to regularly engage those capacities individually and collectively. Beneficent nudging in the service of these commitments is not at all objectionable; yet this would be to view such nudging in a quite different light than nudge theory has placed it in to date. Acknowledgements The author here acknowledges and sincerely thanks two anonymous reviewers for their judicious critical comments and helpful suggestions.

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