Is nudging really extra-legal?

Introduction

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.¹ 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.

The paper proceeds as follows. In section one, I briefly discuss the term nudge and what is sometimes called “the nudge agenda”. Some of the debates about nudges draw on legal arguments or set out legal implications. Sometimes they do so by relying on rather unsophisticated views on what law is and how it operates.

One can come to the view that nudges are extra-legal in at least two ways. The view that nudges are not legal may follow from the intuitive idea that law is (necessarily or typically) linked to coercion. In short, nudges are too “soft” to be considered law. One can come to the same conclusion through a different route as well. If we focus not on law’s typical coerciveness but on one of its arguably necessary features: its reason-giving, action-guiding character, then at least some nudges can be seen as too “strong” or “crude” to be called law. I discuss these two lines of argument in sections two §1 and §2, respectively. In section three, I suggest two ways of understanding nudges as legal. Section three §1 provides some conceptual as well as historical arguments for encompassing nudges into the legal domain as conceptually subordinate but practically important instances of regulation. In section three §2, inspired by Lon Fuller’s project of eunomics I suggest considering nudges in a broader normative framework, along with other regulatory techniques; a broader project of good governance that is not distinct from law but encompasses various forms of legality. At the end it turns out that nudges are not obviously and not always legal nor are they necessarily or typically extra-legal. This conclusion does not seem very original, nor does not qualify as a useful policy advice. But my aim is neither originality nor practicality. This paper is perhaps best seen as “philosophical reflection” in the Oakeshottian sense, i.e. as “the adventure of one who seeks to understand in other terms what he already understands.”²

Nudges as governance technique

Let me start with some conceptual clarification as to what nudges are, as well as some demarcations as to how they are distinct from but related to behavioural economics and libertarian paternalism. Some may find these points obvious. They are indeed not too controversial in the sense that the important disagreements lie elsewhere. These remarks simply serve as a conceptual starting point for the discussion to follow.

In a recent paper, Hansen discussed extensively the various definitions and characterisations of nudge suggested in the literature, pointing out some of their shortcomings.³ At the end he came to suggest the following explication: “A nudge is a function of any...