Is nudging really extra-legal?

Peter Cserne*

*Corresponding author for this work

Research output: Contribution to journalArticle

Abstract

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. 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 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. I shall refer to some of the debates on the nature of
law and the tasks of jurisprudence but within the confines of this paper,
I do not provide a fully-fledged theory of the nature of law.
Original languageEnglish
Pages (from-to)159-180
Number of pages22
JournalTocqueville Review
Volume37
Issue number1
Publication statusPublished - 27 Jul 2016

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