Is nudging really extra-legal?

Cserne, Peter

Abstract

Some of the scholarly literature on nudges seems to assume, without giving it much further thought, that nudges represent a non-legal or extra-legal form of regulation. Others routinely assume nudges to be legal, i.e. capable of being authorized and implemented in accordance with the law. Perhaps the term ‘law’ is used in different senses in these two contexts. But the issue may run deeper. The question about the (extra-)legal character of nudges is not simply whether certain regulatory interventions can be implemented legally in country X or Y. Rather, it is whether nudges represent a genuinely distinct mode of governance, with a corresponding distinct normativity. In this paper I take a closer look at what makes a mode or technique of governance legal and query whether nudges can meet these criteria. This I shall do with reference to some of the abstract, and sometimes perhaps obscure, conceptual debates on the nature of law and the tasks of jurisprudence. Within the confines of this paper, I do not provide a fully-fledged theory of the nature of law. But in order to spell out the possible, and plausible, answers to the question in the title, I discuss some representative jurisprudential ideas and debates as to what kind of governance mechanism law is, drawing attention to the tension between instrumental and non-instrumental views of law and spelling out some conceptual consequences regarding nudges.

Citation

Cserne, P. (2016). Is nudging really extra-legal?. Revue Tocqueville / Tocqueville Review, 37(1), 159-180

• Acceptance Date: Apr 18, 2016
• Publication Date: Jul 27, 2016
• Deposit Date: Jun 29, 2016
• Publicly Available Date: Jul 27, 2016
• Journal: The Tocqueville review
• Print ISSN: 0730-479X
• Electronic ISSN: 1918-6649
• Publisher: University of Toronto Press
• Peer Reviewed: Peer Reviewed
• Volume: 37
• Issue: 1
• Pages: 159-180
• Keywords: Nudging
• Public URL: https://hull-repository.worktribe.com/output/440538
• Publisher URL: https://muse.jhu.edu/article/626856
• Additional Information: Authors' accepted manuscript of article published in: The Tocqueville review, 2016, v.37 issue 1.