Politically as well as from the point of view of constitutional law, I see neither good reasons to generally reject health-related nudging towards less self-damaging behavior (1.), nor good reasons to issue a general clearance certificate on the grounds that nudging always leaves the addressee “at liberty” (2.). In both respects, I doubt that pondering or quarrelling over concepts of “embedded individualism” or “regulatory democracy” will bring us any closer to rationality of or consensus about the policy choices that have to be made.
1. General rejection to any sort of auto-health-related nudging (with respect to accountable persons) would imply that whether, what, where and how much people smoke, drink and eat or whether they ever rise from their sofa or desk chair in order to get some exercise is a matter of no concern whatsoever to the state or any other public agency as long as only the respective individuals´ own health, not that of others, is put at risk. That would amount to the view that the state must be neutral towards eating, drinking, smoking and physical inertia habits as it must be towards religious beliefs. To me, this view – which would leave people exposed to all sorts of nudging by private companies and circumstantial nudging without allowing the community to produce counterweights which only the community can provide effectively – has no plausibility whatsoever. And it is certainly not the view of the German Federal Constitutional Court (FCC).
The FCC has qualified public health as a community value of outstanding importance, capable of justifying interferences with fundamental rights guaranteed in the constitution. This qualification applies not only where state intervention aims at protecting health from being injured by others (as e.g. in the case of statutory reporting duties concerning contagious diseases) ...Zum vollständigen Artikel