Janet Semple wrote that Panopticon was the only book by Jeremy Bentham that Michel Foucault had ever read. It follows that Bentham scholars have considered Foucault's Discipline and Punish as both a critical and an incomplete analysis of Bentham's thought. The recent 2004 edition of Foucault's unpublished lectures at the College de France and the 2006 seminal paper by Christian Laval, a French Bentham scholar from the Centre Bentham, give grounds for reappraising received ideas on the relationship between Foucault and Bentham. Foucault's understanding of Bentham clearly goes beyond concepts of surveillance to focus on the idea of governance; the latter is more in tune with contemporary Bentham studies. Concepts used by Foucault in his lectures, such as that of 'frugal/frugality' not only derive from Bentham's writings but are more relevant to an analysis of Bentham's philosophy than the corresponding concept 'economical/economy' used by contemporary scholars. Over the years, Foucault seems to have moved on from an incomplete and therefore inaccurate knowledge of Bentham to a deeper understanding of his work. This paper not only challenges Bentham scholars' prejudices against Foucault's analysis but also aims at overcoming received ideas about Bentham's philosophy among the French academic community.1 I am grateful for Dr Christian Laval's and Irena Nicoll's comments as well as Professor Jennifer Merchant's and Anaig Fenby's careful re-reading of my draft.

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The text looks into the conditions justifying the use of a social norm as the basis for establishing a legally binding rule. It starts with the definition of some key-terms (nudges, behavioural insights, social norms) before describing initiatives led by the UK Nudge Unit and other behaviourally-informed policies, such as default options, used in a legal context. This helps to highlight the type of problems related to the incorporation of social norms in legal norms, especially the importance of deviance to the social norm. Jeremy Bentham’s and Michel Foucault’s writings can be used to solve the problems raised. A framework can be devised to explain when a social norm can legitimately be incorporated in a legal norm. Indeed, beyond statistical evidence which identifies recurring patterns of behaviour, only a meta-norm can justify the choice of a legal norm. It is the efficacy of the norm which appears as a legitimising factor as it allows the promotion either of the productive forces in society (according to Foucault) or of utilitarian principles (according to Bentham). However, it seems that this meta-norm can be legitimately imposed only if it emanates from a strict deliberative discipline and is publicised. The article thus concludes that deliberation and publicity are the two means allowing to check that the legal norm complies with the meta-norm, thus legitimising the use of a social norm as a legally binding rule.

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