Legislación conductual (Nudging) = Behavioral Legislation (Nudging)

Nudging is one of the leading trends in legislation worldwide. This paper discusses the theoretical and practical advantages and disadvantages of nudges, focusing on the paradigmatic area of ‘health and environment’ public policy. The starting point of the analysis is a ‘minimal’ definition of nudging as a deliberate intervention, based on behavioral, psychological and empirical research, to change the specific context in which a person decides on his or her actions. As a nudger, the legislator acts on the premise that the individual’s decision-making process will be unsatisfactory with regard to certain predetermined public policy goals or measures. By modifying the specific decision-making context, the intervention aims to influence individual behavior in the direction desired by the nudger. A distinctive feature of nudges is that the desired behavior is not prescribed directly and explicitly: it is stimulated, rather, by indirect means, without any authoritative, coercive or binding regulations. In this connection, the current debate on whether people should be forced (with sanctions) or rather ‘nudged’ to behave in an environmentally conscious manner, as well as the global debate on climate change, environmental pollution, waste of food, resources and energy, etc. may be a good example in order to examine the virtues and problems of nudging. The analysis will show to what extent nudging can be a fruitful tool in the lawmakers’ hands and increase willingness to promote a more participatory approach to legislation. Nowadays, given that large-scale behavioral changes are needed and risks and uncertainties increase, the added value of nudges becomes increasingly important. From a prescriptive or normative viewpoint, the analysis aims to show why and to what extent legislators can use nudges to avoid coercive and ineffective laws and align human behavior with public objectives. In particular, the study will defend the thesis that nudges, despite the criticism they receive from advocates and detractors of liberal paternalism, play an important role in the legislative framework of constitutional systems and can contribute to a better implementation of the ideal of the rule of law. Although nudging is sometimes dismissed as a trivial phenomenon, an adequate and wellplanned combination of nudges and legislation is beneficial. And, most clearly, such a combination is required in exceptional or catastrophic situations in which the very resilience of the legal system may collapse.