Book Review: Nudge and the Law – A European Perspective
| Date | 01 April 2016 |
| Author | Qi Zhou |
| DOI | 10.1177/1023263X1602300212 |
| Published date | 01 April 2016 |
| Subject Matter | Book Review |
Book Reviews
23 MJ 2 (2016) 383
Alberto Alemanno a nd Anne-Lise Sibony (eds.), Nudge and the Law – A European
Perspe ctive, Har t Publishing, Oxford 2015, ISBN 978–1849467322, €59.99
Behavioural law and economics studies have o ered many valuable insights into
understanding human cognitive errors and lim itations of traditional regulatory
instruments. S cholars of behavioural law and economics suggest t hat ‘nudging’ is a better
regulatory instrument. e term, ‘nudge’ is used to refer to as ‘a choice architecture’
that alters people’s behaviour in a predictable way wit hout forbidding any options
or signi cantly chaning their economic incenttives.1 It can both respect individual
autonomy and, at the same time, correct cognitive errors and psychological biases.2
Nevertheless, key questions have still been le without answers. W hat are the features
of nudging as a regulator y technique? What are the adva ntages and disadvantages of
nudging in comparison with other regulatory instru ments? How can nudging be
adopted in a particu lar jurisdiction? Is nudging compatible w ith some non-instrumental
values respected by law? e new book, Nudge and the Law – A European Perspective3
is a collection of essays, which provide the answers to thes e questions from a European
perspective. Given the space ava ilable, my goal is not to provide a comprehensive review
of all the essays i n this book, but to highlight its sal ient features.
e rst i s that this book provides a c ritical eva luation of the e ectiveness of behaviour-
based regulatory i nstruments. Some behavioural law and economics scholars prefer
nudging to tradit ional regulatory instru ments because nudging is less interventionist . It
is based on the idea of so -paterna lism. It can overcome human cognitive errors without
undermining individuals’ autonomy. However, are behaviour-based strategies always
superior to traditional reg ulatory instruments?
Di Port and Rangone’s essay4 focuses on this quest ion. ey critically evaluate
the e ectiveness of behaviour-based inst ruments. According to them, nudging may
be ine ective and undermine individuals’ autonomy. First, they reconceptua lise the
question. ey prefer the term ‘cognitive and behav ioural limitations’ to ‘cognitive
errors’, and ‘unresponsive behaviour’ over ‘bounded rationa lity or irrationality’.
Sometimes, i ndividuals behave di erently from regulators’ expectat ions, or they are
unresponsive to traditional regulatory means because their behaviour is in uenced by
cognitive and behavioura l limitations such as heuristics, personal at titudes, or biases.
But it cannot be said that t heir behaviour is irrational. erefore, the goa l of regulatory
intervention should not be set up to overcome bounded-rationality or irrationality,
1 R. aler and C.R. Sustein, Nu dge Improving Decision s about Health, Wealth and Happin ess (Penguin
Books, 2009), p.6.
2 C.R. Sunstei n and R. aler, ‘libertaria n Paternalism Is Not an Oxymoron’, 70 Unive rsity of Chicago
Law Review (2003), p.1159.
3 A. Alemanno a nd A.-L. Sibony (eds.), Nudge and the Law A European Pers pective (Hart Publishing,
2015).
4 Ibid., Ch. 2.
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