Abstract
“Nudging” is commonly seen as an appealing form of “smart legislation” based on the findings of behavioural sciences and alternative to traditional forms of regulation. However, notwithstanding the ever increasing references and a growing body of literature on its acceptability, a proper definition of the concept seems still lacking, since all the (scarce) attempts to date have only provided over- or under-inclusive definitions. This chapter purports to offer a more plausible definition. Firstly, the received view and especially Thaler’s and Sunstein’s descriptions of nudging will be examined and subjected to a first critical assessment. Secondly, a few examples will be made of policies enacted all around the world which are usually referred to as cases of nudging. Thirdly, some of the elements which have often been associated to nudging as its definitional features will be tested against the set of examples: such test will show that most of those elements must be done away with. Lastly, a “minimal” definition will be offered. While allowing us to distinguish nudging from other forms of conduct-influencing interventions, the minimal definition will exclude many features as its necessary conditions: among others, those related to specific ends and political ideologies.
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Notes
- 1.
- 2.
See e.g. iNudgeyou—The Applied Behavioural Science Group; TEN—The European Nudging Network; Nudge-it European Commission-funded FP7 project; Ideas42 group, project and B-HUB; The Danish Nudging Network; Nudge Italia; Centro di Ricerca di Epistemologia Sperimentale e Applicata (CRESA); Ly and Soman (2013), Lourenço et al. (2016) and OECD (2017); The Nudge Sustainability Hub.
- 3.
The White House President Barack Obama (2015).
- 4.
Foulkes (2017).
- 5.
See e.g. Sunstein (2014b).
- 6.
- 7.
- 8.
- 9.
Thaler and Sunstein (2009, p. 6).
- 10.
Thaler and Sunstein (2009, p. 6).
- 11.
See e.g. Hansen and Jespersen (2013, pp. 3–28).
- 12.
Thaler and Sunstein (2009, pp. 6–9).
- 13.
Moles (2015, p. 646).
- 14.
Tor (2016). For some scholars, neither Econs nor Humans can make perfect forecasts and both are subject to errors, but the latter tend to make mistakes along predictable directions, determined by certain common aspects of human psychology.
- 15.
Thaler and Sunstein (2009, p. 9): “[…] a nudge is any factor that significantly alters the behavior of Humans, even though it would be ignored by Econs. Econs respond primarily to incentives. […] Humans respond to incentives too, but they are also influenced by nudges”.
- 16.
- 17.
Moles (2015, pp. 650–651).
- 18.
Moles (2015, p. 649 n. 21).
- 19.
Saghai (2013, p. 489).
- 20.
See, for instance, the 2011 House of Lords Select Committee report (Science and Technology Committee—Second Report—Behaviour Change), which states that “[…] interventions which may be described as “nudging” are not synonymous with, but rather are a subset of, non-regulatory interventions […] not all non-regulatory interventions are nudges in the standard understanding of the term. Nudges prompt choices without getting people to consider their options consciously, and therefore do not include openly persuasive interventions such as media campaigns and the straightforward provision of information” (para. 2.9).
- 21.
Thaler and Sunstein (2009, pp. 200–206) include these latter cases into nudging and dedicate a section of their book to “Feedback and Information”.
- 22.
Baldwin (2014).
- 23.
John et al. (2009).
- 24.
Incidentally, the provision of full and neutral information, not selected nor presented in a way that triggers emotional responses, presents us with a difficult borderline case. On the one hand, it could be seen as addressing mainly those agents who have already decided to make a considerate, careful choice. On the other hand, the very fact that full information is provided for the first time, in cases where it was not, might act on unreflective thinking by providing an alert that pushes the subject towards reflective thinking. Like in the aforementioned case of incentives, also with provision of full information we face epistemic uncertainty as regards its nudge or non-nudge nature: some individuals may be affected by its (arguably very slight) emotional push towards more careful decision-making, while others may simply use that information once they have already decided to choose in the most rational and reflective possible way.
- 25.
Contra Moles (2015, p. 647).
- 26.
van Aaken (2015). This author distinguishes between “Isolated Instruments Supporting Choice” and “Communicative Instruments Supporting Choice”. The former target isolated individuals who have to make decisions: examples are “regret mechanisms” that allow individuals to reverse decisions without costs, like pre-established waiting periods in divorce law. The latter focuses on communicative rationality and deliberation: e.g., the obligation in some clinical trials to have a consultation before the decision, or the duty for bankers to assess whether a potential investor understands relevant information.
- 27.
Thaler and Sunstein (2009, pp. 37–39).
- 28.
- 29.
For The Economist (2015), “the nudge revolution encourages the use by government of plain language; favours the design of policies that actually take account of real-world behaviour; and allows the testing of ideas on a small scale before wider implementation”.
- 30.
- 31.
- 32.
See e.g. Cohen et al. (2016).
- 33.
- 34.
- 35.
Santangeli et al. (2016, pp. 211–213).
- 36.
Santangeli et al. (2016, pp. 213).
- 37.
Ölander and Thøgersen (2014).
- 38.
See http://inudgeyou.com/en/could-a-nudge-improve-safety-at-railway-platforms. Given that collisions between a train and a person is the most common cause of death nearby railroads in Denmark, as well as the rest of Europe, BAR transport og engros, a Danish council for promoting health and safety, reached out to identify problematic behavioural patterns. The project resulted in a number of solution concepts to reduce accidents near the railway tracks, taking into account that they happen often when people walk too closely to the platform edge during crowded peak hours, due to people being overly preoccupied with smartphones, etc.
- 39.
- 40.
- 41.
Stopnitzky (2017, pp. 269–282).
- 42.
European Commission (2016a), https://ec.europa.eu/jrc/sites/jrcsh/files/jrc-biap2016-spain_en.pdf.
- 43.
Davidai et al. (2012, pp. 15201–15205).
- 44.
See e.g. Cserne (2016).
- 45.
Hansen (2016b, pp. 171–174).
- 46.
Thaler and Sunstein do not say much on the possibility for nudges to actually modify the set of choices by enlarging it. It should be noticed that the adding of new options could be a way of obtaining “decoy effects” and to exploit “asymmetric dominance”, which are clearly forms of nudging. See Hansen (2016a, pp. 12–14).
- 47.
van Aaken (2015).
- 48.
- 49.
- 50.
See e.g. Feinberg (1984, p. 12).
- 51.
See Sunstein (2013, p. 190 ff.). However, Thaler’s and Sunstein’s qualification of nudges as paternalistic presupposes a very weak definition of “paternalism”, which expands the most common definitions to include acts which are not coercion and only pursue the addressee’s welfare. In the case of nudges, “paternalism” could be simply substituted with “benevolence”.
- 52.
See e.g. Quong (2011).
- 53.
Smith and McPherson (2009).
- 54.
Glod (2015).
- 55.
Tor (2016).
- 56.
- 57.
As in Mongin and Cozic (2014).
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Zorzetto, S., Ferraro, F. (2019). Legislation and Nudging. Towards a Suitable Definition. In: Oliver-Lalana, A. (eds) Conceptions and Misconceptions of Legislation. Legisprudence Library, vol 5. Springer, Cham. https://doi.org/10.1007/978-3-030-12068-9_5
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