Are Nudges Legal? On Nudges, Human Dignity and the Rule of Law

Jeremy Waldron’s critique to Cass Sunstein on the risks posed by nudges on human dignity (by not allowing agents to recognize themselves in their own decisions) was a turning point in the academic discussion of the legitimacy of nudges. In this paper I will argue that this dignitarian objection can be invoked to question the legality of nudges, that is, their compatibility with the rule of law. For this purpose, I will emphasize that Lon Fuller’s conception of the rule of law (according to which laws ought to be clear, public, prospective, etc.) involves a commitment to the dignity of a responsible agent, that is, an individual capable of understanding and responding to rules. Since nudges do not create reasons for action and are not cognitively accessible some have suggested they lie outside the legal system. I will consider this possibility but, in the end, I favor a more moderate solution, arguing for the implementation of safeguards and mechanisms for a democratic control of nudges