Why not Nudge?

Now as ever, I agree with Cass Sunstein’s views on many matters. I above all agree that nudging is compatible with any defensible liberal idea of autonomy, and especially with the undeniable claim that nudges can often enhance autonomy in the empire of caveat emptor. Indeed, my concern is that libertarian paternalism is too libertarian, not too paternalistic. If one values current regulations on seatbelts, bicycle helmets, smoking, gambling, compulsory pension contributions, employment law, consumer protection, usury, as well as alcohol, drugs and medicines, then one ought to be very suspicious of how the idea is deployed in public policy. The crucial issue for social and economic policy is the role of mandatory, non-waivable regulation (mandates, penalties and taxes, also called ‘hard paternalism’) vs. waivable, optional default rules (nudges, also called ‘soft paternalism’). Nudges are better than nothing, but contrary to the leitmotif of Nudge (2009) and Why Nudge?: The Politics of Libertarian Paternalism (2014), mandates are almost always better in any social policy of large importance, and very few of them offend any defensible idea of liberal autonomy. But libertarian paternalism actually furnishes arguments against mandates. Let me explain these views by elaborating upon a few short propositions.

1. The argument for nudging is limited to regulation of harm to self, which properly understood is a relatively small policy space.

In Why Nudge? Sunstein seeks to qualify JS Mill’s harm principle, which holds that society may only use coercion to regulate a person’s harm to others, rather than harm to him or herself. Mill’s key argument was that each knows his or her own interests better than the community does. Drawing on empirical data on irrational decision-making, Sunstein shows why this is wrong-headed ...

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