Rebecca Zeilstra

Nudges are small psychological prompts that steer behavior in a noncoercive way. For example, low‐calorie products can be placed at eye level to encourage people to eat healthier. This article argues that governmental nudges are in tension with Fuller's formal legality principle, according to which regulation should meet requirements such as generality and promulgation. Moreover, it shows that this tension can be solved by taking two steps. The first consists in revising the principle of legality in light of the psychological insights that have inspired the theory of nudging; the second in tweaking the requirements of legality so as to arrive at a special legality principle for nudges.

Nudges are considered ‘innocent’ interventions because many nudges only have a small effect on how people behave. However, one particular nudging strategy has been held to have a great impact on behavior. This is the ‘Hooked’ model for smartphone applications, which consists of nudges such as the brightly colored icon of a smartphone app, the possibility to give and receive ‘likes,’ and infinite scrolling. I examine how these nudges affect the value of autonomy. As I contend, smartphone users will initially be able to act in an autonomous way when they are confronted with Hooked nudges. They can autonomously recognize that they have reason to follow these nudges, for example because they want to use certain smartphone apps for leisurely purposes, and they can act for this reason. I also argue, however, that Hooked nudges may undermine autonomy over time, in part because the Hooked model incorporates environmental cues known to promote addictive behaviors. As a result, smartphone users may find it difficult to resist Hooked nudges, even when they have reason to do so. Protecting autonomy therefore requires reducing the use of Hooked nudging.