Lepenies, R. and Małecka, M., 2015. The Institutional Consequences of Nudging–Nudges, Politics, and the Law. Review of Philosophy and Psychology, 6(3), pp.427-437.
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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.
See also the response to us by Cass Sunstein in the same issue.