Beneficial and Exploitative Nudges.
The effectiveness of nudges in raising the welfare of the population hinges on the policymakers employing them. A frequent criticism based on a logical inconsistency questions policymakers’ immunity from the psychological biases of individuals that are the very foundation of nudging interventions. We argue that, rather than being concerned about policymakers’ incapacity to raise the population’s welfare, we should be concerned about their unwillingness to do so. We offer a solution to this problem. We resort to the constitutional level of decision-making in which voters are able to determine the procedures or processes by which governments may resort to nudging. Nudging should not be considered as an innocuous exception to constitutionally based decision-making. It must be admitted, though, that most nudges at first sight do seem to be beneficial to people. In a democracy, even “Liberal Paternalism” may not be imposed on the population without its consent in principle.
Economic Analysis of Law in European Legal Scholarship. Springer.