Data di Pubblicazione:
2024
Citazione:
Legislación conductual (Nudging) = Behavioral Legislation (Nudging) / S. Zorzetto. - In: REVISTA TELEMÁTICA DE FILOSOFÍA DEL DERECHO. - ISSN 1575-7382. - 27:1(2024), pp. 87-128.
Abstract:
Nudging is one of the leading trends in legislation worldwide. This paper discusses
the theoretical and practical advantages and disadvantages of nudges, focusing on the
paradigmatic area of ‘health and environment’ public policy. The starting point of the analysis
is a ‘minimal’ definition of nudging as a deliberate intervention, based on behavioral,
psychological and empirical research, to change the specific context in which a person decides
on his or her actions. As a nudger, the legislator acts on the premise that the individual’s
decision-making process will be unsatisfactory with regard to certain predetermined public policy goals or measures. By modifying the specific decision-making context, the intervention
aims to influence individual behavior in the direction desired by the nudger. A distinctive
feature of nudges is that the desired behavior is not prescribed directly and explicitly: it is
stimulated, rather, by indirect means, without any authoritative, coercive or binding
regulations. In this connection, the current debate on whether people should be forced (with
sanctions) or rather ‘nudged’ to behave in an environmentally conscious manner, as well as the
global debate on climate change, environmental pollution, waste of food, resources and energy,
etc. may be a good example in order to examine the virtues and problems of nudging. The
analysis will show to what extent nudging can be a fruitful tool in the lawmakers’ hands and
increase willingness to promote a more participatory approach to legislation. Nowadays, given
that large-scale behavioral changes are needed and risks and uncertainties increase, the added
value of nudges becomes increasingly important. From a prescriptive or normative viewpoint,
the analysis aims to show why and to what extent legislators can use nudges to avoid coercive
and ineffective laws and align human behavior with public objectives. In particular, the study
will defend the thesis that nudges, despite the criticism they receive from advocates and
detractors of liberal paternalism, play an important role in the legislative framework of
constitutional systems and can contribute to a better implementation of the ideal of the rule of
law. Although nudging is sometimes dismissed as a trivial phenomenon, an adequate and wellplanned
combination of nudges and legislation is beneficial. And, most clearly, such a
combination is required in exceptional or catastrophic situations in which the very resilience of
the legal system may collapse.
Tipologia IRIS:
01 - Articolo su periodico
Keywords:
Nudge; public policy; precautionary measures; rule of law; experimental legislation
Elenco autori:
S. Zorzetto
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