Take your 3D glasses off – How nudging provokes the way we imagine law

von Christopher Unseld

Nudging does polarize, but it also challenges the conventional way German legal scholars imagine the world of law. Even though it is good intuition to be afraid of a totalitarian government of economic rationality, it would be wrong to defend our current logic of judicial proportionality against the nudging approach. Instead, we should embrace democratically supervised economic expertise within our regulatory framework, without giving up on the possibility of radical love and revolution.

1. German 3D glasses

The idea of nudging challenges the way German lawyers see the world through the glasses of law. As I have argued before (see here), I understand law not only as a mean to an end, but as a genuine perspective on our daily lives. Every German law student probably can remember during her first weeks in law school catching herself thinking about the number of contracts she just entered buying a loaf of bread at the local bakery store (hint: at least three). Of course, this is not unique to the legal profession. Economists probably have similar experiences. As the Chicago School has taught us, there is no issue that is completely out of reach of economic analyses.

But there is something idiosyncratic about the way German lawyers construct their legal perspective. In German legal education, one learns to see the world through something I would like to describe as 3D glasses. Through these glasses a legal dispute consists not only of a two-dimensional conflict between two private parties with contradicting interests, but also a third dimension, a power outside their sphere watching: the public government. From time to time, this great power gets involved. But if the state decides to intervene it needs a reason justified by public interest. This typically is the case if one of the private parties externalizes a significant harm on one or more other private parties ...

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