Constitutional Limits to Paternalistic Nudging in Germany

von Anne Van Aaken

Nudges with paternalistic aims pose special legal problems in liberal States. Surprisingly, the discussion on regulation-by-nudging has not focused on the constitutional limits to nudging. Although the property rights of firms potentially infringed by nudging measures are dealt with in the literature and by (international) courts (e.g. the tobacco cases), the potential infringement of the rights of those being nudged is neglected. But judges may at one point be confronted with a nudge regulation challenged by the individuals being nudged; and even before reaching a court, the legality of nudging should be scrutinised by legislators.

I explore the legal limits of paternalistic nudging under the German Constitution, especially the right to freedom of action and self-determination under Art. 2 (1) German Basic Law, judging different types of nudges by the proportionality principle. At issue is the question of how much paternalistic nudging and what types of paternalistic nudges the fundamental rights protection in Germany permits. The analysis can be applied, mutatis mutandis, to non-paternalistic nudges (targeting externalities and public goods/bads).

1. The Tool Box of Paternalistic Measures

The legal system has different instruments at its disposal to regulate with a paternalistic intention: (1) it can manipulate choice invisibly (choice manipulation), including invisible default rules, (2) it can command or prohibit certain choices explicitly (prohibitions), or (3) it can support choice (choice support). Supportive instruments can take the form of either a measure providing facilitation for an isolated decision by an individual, or a communicative process. An isolated choice facilitation instrument is limited to slowing down the decision of an isolated individual during the decision-making process. It is a stop sign aiming at inducing auto-deliberation ...

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