Edited by Hans-W. Micklitz, Anne-Lise Sibony and Fabrizio Esposito
Chapter 2: Conceptual foundations for a European consumer law and behavioural sciences scholarship
This chapter introduces the reader to the basic behavioural concepts and their importance for consumer law. The analysis is organized on three levels, the descriptive, the axiological and the prescriptive. The focus is primarily on European research and its connections with EU law. At the descriptive level, the chapter defends the definition of ‘nudge’ as ‘an effect of the choice architecture that alters people’s behaviour by making use of one or more behavioural trait’ and offers a taxonomy of nudges. Then, it proposes to label ‘law and behavioural sciences’ the research field devoted to investigating the legal and policy relevance of behavioural insights and emphazises the importance of the concept of behavioural market failure in this regard. At the axiological level, the chapter suggests that, instead of focusing on the opposition between autonomist and welfarist frameworks, it is more interesting to reflect on the importance given to individual preferences and to look at their role in legal practice. At the prescriptive level, the chapter reviews the behavioural toolkit and then offers some insights on how to incorporate behavioural insights in legal discourse. It is argued that the concept of consumer weakness is particularly porous to behavioural insights, and that scientific uncertainty is not a categorical reason against their incorporation. The chapter concludes with some remarks about future research in consumer law and behavioural sciences.
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