Constitutional Limits to Paternalistic Nudging: A Proportionality Assessment

Forthcoming in: Alexandra Kemmerer, Christoph Möllers, Maximilian Steinbeis, Gerhard Wagner (eds.), Choice Architecture in Democracies, Exploring the Legitimacy of Nudging (Oxford/Baden-Baden: Hart and Nomos, 2015).

U. of St. Gallen Law & Economics Working Paper No. 2015-03

28 Pages Posted: 15 May 2015 Last revised: 21 Jul 2015

See all articles by Anne van Aaken

Anne van Aaken

University of Hamburg, Law School; Max Planck Society for the Advancement of the Sciences - Max Planck Institute for Research on Collective Goods

Date Written: May 14, 2015

Abstract

Nudges with paternalistic aims pose special legal problems in liberal States. Surprisingly, the discussion on regulation-by-nudging has not focused on the constitutional limits to nudging. Although the property rights of firms potentially infringed by nudging measures are dealt with in the literature and by (international) courts (eg the tobacco cases), the potential infringement of the rights of those being nudged is neglected. But judges may at one point be confronted with a nudge regulation challenged by the individuals being nudged; and even before reaching a court, the legality of nudging should be scrutinised by legislators.

I explore the legal limits of paternalistic nudging under the German Constitution, especially the right to freedom of action and self-determination under Art. 2 (1) German Basic Law, judging different types of nudges by the proportionality principle. The analysis can be extended to other constitutions as well. At issue is the question of how much paternalistic nudging and what types of paternalistic nudges the fundamental rights protection in Germany permits. The proportionality analysis can be applied, mutatis mutandis, to non-paternalistic nudges (targeting externalities and public goods/bads).

Keywords: Behavioral Economics, Nudging, Constitutionality, Proportionality, Paternalism

Suggested Citation

van Aaken, Anne, Constitutional Limits to Paternalistic Nudging: A Proportionality Assessment (May 14, 2015). Forthcoming in: Alexandra Kemmerer, Christoph Möllers, Maximilian Steinbeis, Gerhard Wagner (eds.), Choice Architecture in Democracies, Exploring the Legitimacy of Nudging (Oxford/Baden-Baden: Hart and Nomos, 2015).; U. of St. Gallen Law & Economics Working Paper No. 2015-03. Available at SSRN: https://ssrn.com/abstract=2606189 or http://dx.doi.org/10.2139/ssrn.2606189

Anne Van Aaken (Contact Author)

University of Hamburg, Law School ( email )

Johnsallee 35
Hamburg, 20148
Germany

Max Planck Society for the Advancement of the Sciences - Max Planck Institute for Research on Collective Goods ( email )

Kurt-Schumacher-Str. 10
D-53113 Bonn, 53113
Germany

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