Edited by Hans-W. Micklitz, Anne-Lise Sibony and Fabrizio Esposito
Chapter 3: Nudging and autonomy: a philosophical and legal appraisal
While proponents of nudging claim that it respects basic liberal values such as freedom of choice, critics have mounted an ‘autonomy challenge’ to behaviorally informed interventions, portraying it as a menace to liberty, autonomy and dignity. This chapter sets out to assess the validity of these postulates with respect to human autonomy. Increasingly, the nudging literature is unpacking the procedural dimension of autonomous actions. However, what is lacking is a general theory describing autonomous processes which result in legally relevant actions. The chapter draws on contemporary philosophical conceptualizations of autonomy to propose such a coherent framework against which specific instances of nudging can be tested. This focus on the interference with autonomous cognitive processes allows a nuanced picture of nudges to be painted. In particular, they can be evaluated according to their degree of compliance with a cognitive ‘independent procedure requirement’. While many nudges are transparent enough – even in the specific ways in which they influence behavior – to pass muster under this test, others such as framing and default rules are found to limit individual autonomy. However, such limitations can be justified by appealing to a range of publicly defensible normative goals, such as public or individual health, greater equality or fairness. Only if such justification is unavailable or unconvincing, as in the case of subliminal advertisements, autonomy is in fact violated and the intervention must be rejected. In all other cases, measuring behavioral strategies against the yardstick of individual autonomy provides a necessary dimension of public control and accountability which, in turn, helps to reassert collective autonomy at the societal level.
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