Nudging and Autonomy. A Philosophical and Legal Appraisal

Handbook of Research Methods in Consumer Law, Edward Elgar, Forthcoming

31 Pages Posted: 19 May 2016 Last revised: 21 Apr 2017

Date Written: May 13, 2016

Abstract

While proponents of nudging claim that it respects basic liberal values such as freedom of choice, critics have mounted an “autonomy challenge” to behaviorally-informed interventions, portraying it as a menace to liberty, autonomy, and dignity. This chapter sets out to assess the validity of these postulates with respect to human autonomy. Increasingly, the nudging literature is unpacking the procedural dimension of autonomous actions. However, what is lacking is a general theory describing autonomous processes which result in legally relevant actions. This chapter draws on contemporary philosophical conceptualizations of autonomy to propose such a coherent framework against which specific instances of nudging can be tested.

This focus on the interference with autonomous cognitive processes allows to paint a nuanced picture of nudges. In particular, they can be evaluated according to their degree of compliance with a cognitive “independent procedure requirement.” While many nudges are transparent enough – even in the specific ways in which they influence behavior – to pass muster under this test, others such as framing and default rules are found to limit individual autonomy. However, such limitations can be justified by appealing to a range of publicly defensible normative goals, such as public or individual health, greater equality, or fairness. Only if such justification is unavailable or unconvincing, as in the case of subliminal advertisement, autonomy is in fact violated and the intervention must be rejected. In all other cases, measuring behavioral strategies against the yardstick of individual autonomy provides a necessary dimension of public control and accountability which, in turn, helps to reassert collective autonomy at the societal level.

Keywords: Nudging, nudge, debiasing, autonomy, manipulation, legal philosophy, cognition, framing, labels, social norms, shocking images, cigarette packages, default rules

JEL Classification: D80, E20

Suggested Citation

Hacker, Philipp, Nudging and Autonomy. A Philosophical and Legal Appraisal (May 13, 2016). Handbook of Research Methods in Consumer Law, Edward Elgar, Forthcoming. Available at SSRN: https://ssrn.com/abstract=2779507

Philipp Hacker (Contact Author)

Humboldt University of Berlin ( email )

Unter den Linden 6
Berlin, Berlin 10099
Germany
+49 30 2093 3498 (Phone)

HOME PAGE: http://hu-berlin.academia.edu/PhilippHacker

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