Nudging is one of the avant-garde directions of legislation around the world. This study outlines the theoretical and practical advantages and disadvantages of nudges by drawing attention to the paradigmatic area of recent precautions and vaccinations against Covid-19. The starting point of the analysis is a minimal definition of ‘nudging’, according to which it is a deliberate intervention based on behavioral, psychological and empirical surveys devoted to chance the concrete context where people make decisions and act. The “legislator” as nudger intervenes on the premise that the individual’s decision-making process in relation to certain predetermined policy goals would otherwise not be satisfactory. By changing 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 expressed directly or stated explicitly, but is sought indirectly and bypassing authoritative, coercive or otherwise binding means. In light of this idea, the current debate on whether vaccination should be mandatory or rather recommended will be examined, as will the world-shaking debate on precautionary measures to reduce risk of coronavirus infection. The analysis will show the extent to which nudges can increase preparedness and be a fruitful tool in the hands of “legislators” to promote a more participatory approach to legislation. As large-scale behavioral change is required and biases and uncertainties increase, the added value of nudges becomes more important. From a prescriptive perspective, the analysis aims to show why and to what extent “legislators” can take advantage of nudges to avoid ineffective laws and align people behavior with public goals. In particular, the study will defend the idea that nudges, although criticised by both proponents and opponents 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, a far-sighted combination of nudges and regulatory laws is beneficial. It should be planned especially for exceptional situations where the same resilience of the legal system might fail.

Legislative Architecture and Nudges: Complementary Tools to Increase Legal Order Resilience? / S. Zorzetto (LEGISPRUDENCE LIBRARY). - In: Exploring the Province of Legislation : Theoretical and Practical Perspectives in Legisprudence / [a cura di] F. Ferraro, S. Zorzetto. - Prima edizione. - [s.l] : Springer, 2022. - ISBN 978-3-030-87261-8. - pp. 209-241 [10.1007/978-3-030-87262-5_11]

Legislative Architecture and Nudges: Complementary Tools to Increase Legal Order Resilience?

S. Zorzetto
Primo
Writing – Original Draft Preparation
2022

Abstract

Nudging is one of the avant-garde directions of legislation around the world. This study outlines the theoretical and practical advantages and disadvantages of nudges by drawing attention to the paradigmatic area of recent precautions and vaccinations against Covid-19. The starting point of the analysis is a minimal definition of ‘nudging’, according to which it is a deliberate intervention based on behavioral, psychological and empirical surveys devoted to chance the concrete context where people make decisions and act. The “legislator” as nudger intervenes on the premise that the individual’s decision-making process in relation to certain predetermined policy goals would otherwise not be satisfactory. By changing 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 expressed directly or stated explicitly, but is sought indirectly and bypassing authoritative, coercive or otherwise binding means. In light of this idea, the current debate on whether vaccination should be mandatory or rather recommended will be examined, as will the world-shaking debate on precautionary measures to reduce risk of coronavirus infection. The analysis will show the extent to which nudges can increase preparedness and be a fruitful tool in the hands of “legislators” to promote a more participatory approach to legislation. As large-scale behavioral change is required and biases and uncertainties increase, the added value of nudges becomes more important. From a prescriptive perspective, the analysis aims to show why and to what extent “legislators” can take advantage of nudges to avoid ineffective laws and align people behavior with public goals. In particular, the study will defend the idea that nudges, although criticised by both proponents and opponents 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, a far-sighted combination of nudges and regulatory laws is beneficial. It should be planned especially for exceptional situations where the same resilience of the legal system might fail.
Nudge; Pandemic; Precautionary measures; Rule of law; Vaccine
Settore IUS/20 - Filosofia del Diritto
Book Part (author)
File in questo prodotto:
File Dimensione Formato  
estratto Zorzetto Springer 3^ Bozze finale.pdf

accesso riservato

Tipologia: Post-print, accepted manuscript ecc. (versione accettata dall'editore)
Dimensione 356.74 kB
Formato Adobe PDF
356.74 kB Adobe PDF   Visualizza/Apri   Richiedi una copia
Pubblicazioni consigliate

Caricamento pubblicazioni consigliate

I documenti in IRIS sono protetti da copyright e tutti i diritti sono riservati, salvo diversa indicazione.

Utilizza questo identificativo per citare o creare un link a questo documento: http://hdl.handle.net/2434/903056
Citazioni
  • ???jsp.display-item.citation.pmc??? ND
  • Scopus ND
  • ???jsp.display-item.citation.isi??? ND
social impact