Why not nudge? The Law, Politics and Ethics of Libertarian Paternalism

Christopher McCrudden (Belfast/Michigan)

Berliner Seminar Recht im Kontext
Wissenschaftskolleg zu Berlin, Villa Jaffé
Wallotstraße 10, 14193 Berlin

Audioaufnahme der Veranstaltung

The German Federal Government has recently become interested in examining the use of 'nudging' and has established a Unit in the Chancellor's office to consider what use might be made of this approach to regulation. 'Nudging,' and the theory of 'liberal paternalism' on which it is based, has proven highly controversial in theory and practice in several countries. What is 'nudging' and why is it attracting so much attention recently? And what are the criticisms? Advocates see nudging as supporting the idea of autonomy and human dignity by respecting human agency, furthering autonomous decision-making, and limiting government, whilst at the same time furthering welfare. Opponents challenge this optimistic view in at least three important ways: first, it is alleged to divert government from its responsibility to use other, more effective, instruments that would secure the just redistribution of resources essential to us being able to exercise our human agency; second, it is alleged to reduce opportunities for public deliberation and democratic discourse in favour of non-transparent, technocratic manipulation; and, third, it is alleged to restrict opportunities to act as moral agents, which involves us doing the right thing for the right reason. Before going further down the path of 'nudging', it is important that public debate on the legal, ethical and political acceptability of the methods and effects of this approach should be thoroughly considered. This lecture hopes to contribute to this much needed public discussion.

Christopher McCrudden is Professor of Human Rights and Equality Law at Queen’s University Belfast, and William W Cook Global Law Professor at the University of Michigan Law School. During the academic year 2014-2015,  he is a Fellow of the Wissenschaftskolleg zu Berlin. Until 2011, he was Professor of Human Rights Law at the University of Oxford, and a Fellow of Lincoln College, Oxford. He studied law at Queen’s University Belfast, Yale University, and Oxford University. His main research focus is on human rights law. His current research deals with the foundational principles underpinning human rights practice. Professor McCrudden serves on the editorial boards of several academic journals, including the Oxford Journal of Legal Studies, the International Journal of Discrimination and the Law, and the Journal of International Economic Law, and he is co-editor of the Law in Context series (Cambridge University Press). He is a practicing Barrister at Blackstone Chambers in London. Professor McCrudden was elected a Fellow of the British Academy in 2008. Among his recent publications are: Understanding Human Dignity (OUP, 2014, editor); Courts and Consociations: Human Rights versus Power-sharing (OUP, 2013, with Brendan O'Leary); Reasoning Rights: Comparative Judicial Engagement (Hart, 2014, with Liora Lazarus and Nigel Bowles, editors), and Buying Social Justice: Equality, Government Procurement and Legal Change (OUP, 2007), for which he was awarded the American Society of International Law’s prize for outstanding legal scholarship.