The Institutional Consequences of Nudging – Nudges, Politics, and the Law

Abstract

In this article we argue that a widespread adoption of nudging can alter legal and political institutions. Debates on nudges thus far have largely revolved around a set of philosophical theories that we call individualistic approaches. Our analysis concerns the ways in which adherents of nudging make use of the newest findings in the behavioral sciences for the purposes of policy-making. We emphasize the fact that most nudges proposed so far are not a part of the legal system and are also non-normative. We propose two ideal types: “law-as-normative” and “law-as-instrumental”, that allow us to understand and evaluate the relation of nudges and the law. We stress the importance of law as a safeguard for the possible negative consequences of nudges and conclude with proposals that could complement nudging policies.

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Notes

  1. 1.

    Jeremy Waldron has felicitously coined the term “nudge world” for a society in which nudging policies are widely adopted (Waldron 2014).

  2. 2.

    Ever since the publication of “Nudge”, a variety of very different policy instruments have been vaguely classified as nudges, both by critics and nudge enthusiasts. We treat here as nudges these policy instruments that rely on the findings of behavioral science and that are intended to impact behavior in a mode distinct from rational persuasion, command-and-control instruments, or (material) incentives. In this article, we focus on nudges that are non-normative and non-cognitive (and will define these terms later).

  3. 3.

    Often, influencing individual behavior into “rational” directions does, at the same time, increase social welfare (e.g. default rules for retirement savings programs). Hence, these two objectives may overlap.

  4. 4.

    Exemplary for this is the discussion between Kahneman and Gigerenzer on how mistakes, errors, and biases should be understood and whether reliance on heuristics leads to systematic mistakes or biases (Kahneman 2012), or not (Gigerenzer 2000; Gigerenzer and Todd 1999).

  5. 5.

    Which are mental shortcuts used in situations in which people assess the frequency of an event belonging to a class or the probability of it occurring, based on how easily instances or occurrence can be brought to mind (Tversky and Kahneman 1974).

  6. 6.

    New standards of disclosing information can be introduced by legal rules and as a part of a legal system (e.g. the CARD Act) and these are often coercive policies (since they coerce producers to introduce new standards of informing), rather than nudges. However, the content of these mandates may incorporate behavioral insights and be justified by behavioral findings – therefore an impact of these standards on their addresses can be understood as nudging.

  7. 7.

    The 401(k) retirement savings account scheme is a tax-advantaged way of saving for retirement in the US. Since 2006, employees are automatically enrolled in the program.

  8. 8.

    Catalogue of nudges based on Sunstein 2014b.

  9. 9.

    Some nudges, however, are accompanied with codified legal requirements imposed by a lawmaker. The best example of this can be shocking health warnings. In this case, law coerces producers to put warnings on the cigarettes packets. These warnings are nudges and have emotional effects on consumers. Consumers in these circumstances do not react to laws, but - non-cognitively – to a nudge. Law is not visible to consumers and it is not the law that discourages people from smoking, but the pictorial representation which brings about a non-cognitive reaction to the image and, as a result, the desired decrease in risky, unhealthy behavior (smoking).

  10. 10.

    Weber writes: “An ideal type is formed by the one-sided accentuation of one or more points of view and by the synthesis of a great many diffuse, discrete, more or less present and occasionally absent concrete individual phenomena, which are arranged according to those one-sidedly emphasized viewpoints into a unified analytical construct (Gedankenbild). In its conceptual purity, this mental construct (Gedankenbild) cannot be found empirically anywhere in reality. It is a utopia.” (1949, p. 90–94).

  11. 11.

    The issue of instrumentalisation of law has been discussed by philosophers, sociologists, and legal theorists (Pound 1942; Habermas 1996; Teubner 1986). Most of these analyses were focusing on the goal-oriented and bureaucratic procedures of lawmaking. For examples from current discussions in jurisprudence see Tamanaha (2006) and Harel (2014).

  12. 12.

    Since these default rules offer an opt-out option, they do not influence or determine behavior completely, meaning that they do not exclude the possibility of acting for a reason (provided by law). However, here a reason for action is not a legal requirement to behave in a particular way, but a departure from the influence of a (default) rule.

  13. 13.

    There is a similarity between our account and that of Hansen and Jespersen (2013). Especially, our understanding of cognitive (in “law-as-normative”) and non-cognitive (in “law-as-instrumental”) conditions for effectiveness of responses to law are comparable with their distinction between transparent and non-transparent nudges. We do not share their broad understanding of nudges as, for example, transparent nudges have attributes which make them hardly distinguishable from some other forms of coercion, or signs.

  14. 14.

    We understand self-legislation as the control a social collective has over its evaluation, deliberation and choice of social institutions (this definition is inspired by a related definition of autonomy by Hausman and Welch 2010).

  15. 15.

    Default rules in contract law offer a (legal) pattern in which one is free to choose, but some action is always required, that is, in order to act one has to choose either the option offered by default, or the opt-out (because otherwise one would not be able to make a contract).

  16. 16.

    Our solution can be viewed as similar to Sunstein’s remarks on active choosing, yet our proposal is stronger because it advocates required choosing, and not only a “simplified active choosing” between a default and opt-out (Sunstein 2014c, p.5). Sunstein treats a required choice (in our proposal: between a default and opt-out) as a form of coercion, and is hence inconsistent with his “libertarian paternalist” approach.

  17. 17.

    Nudges without safeguards jeopardize a vision of society which is presumed in the democratic legal order based on a rule of law. Here, we do not argue that such a legal order should be defended but merely argue that nudges undermine it.

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Acknowledgments

The authors would like to thank two anonymous reviewers and the editors for their valuable and helpful comments. The authors furthermore thank Konstantin Baehrens, Richard Bellamy, Juliana Bidadanure, Hent Kalmo, Shmuel Nili, Claus Offe, Dennis Patterson, Eva Tscherner, and their colleagues at the EUI’s Max Weber Programme. Dr. Małecka’s work has been funded by the National Centre for Science (NCN), individual research project no. DEC-2012/07/N/HS1/01560

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The authors declare that they have no conflict of interest.

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Lepenies, R., Małecka, M. The Institutional Consequences of Nudging – Nudges, Politics, and the Law. Rev.Phil.Psych. 6, 427–437 (2015). https://doi.org/10.1007/s13164-015-0243-6

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Keywords

  • Legal System
  • Policy Instrument
  • Behavioral Science
  • Political Institution
  • Ideal Type