On the justification and possibilities of soft paternalism
Three theses on the justification and moral problems of soft paternalism.
Soft state influence on family life – Irrelevant for the parents` fundamental rights?
The German basic law’s concept of constitutional liberties is difficult to reconcile with an idea of citizens who need to be told by the state what is better for them. Insofar as nudges and incentives affect fundamental rights, the government has to invoke public interests and cannot justify its measures on grounds of the assumed interests of the addressees.
Nudging and human dignity
Cass Sunstein’s "Why Nudge?" presents a proposal for nudging as an alternative to traditional regulatory mandates and economic incentive-based regulation. I shall suggest that nudging creates considerable tensions with thick conceptions of human dignity.
Why not Nudge?
Now as ever, I agree with Cass Sunstein’s views on many matters. I above all agree that nudging is compatible with any defensible liberal idea of autonomy, and especially with the undeniable claim that nudges can often enhance autonomy in the empire of caveat emptor. Indeed, my concern is that libertarian paternalism is too libertarian, not too paternalistic.
Constitutional limits to health-related nudging – a matter of balancing
Politically as well as from the point of view of constitutional law, I see neither good reasons to generally reject health-related nudging towards less self-damaging behavior, nor good reasons to issue a general clearance certificate on the grounds that nudging always leaves the addressee “at liberty”. The state is not prohibited from taking sides in matters of public health – neither generally, nor specifically insofar as self-damaging behavior of accountable persons is concerned. However, claiming that people who are just being nudged remain free to resist the nudge falls far short of the constitutional law problems that nudges can raise.
The Ethics of Nudging
The last decade has seen a rapid growth of interest in choice-preserving, low-cost regulatory tools, sometimes termed "nudges." Especially in light of that interest, it is important to obtain an understanding of the nature and weight of the ethical concerns.
CJEU Opinion 2/13 – Three Mitigating Circumstances
The academic response to CJEU Opinion 2/13 on EU accession to the European Convention on Human Rights can be characterised as a combination of shock, disbelief and protest. Indeed, the Opinion looks like total overkill, as the grounds for rejecting the draft accession agreement are so many and so diverse that they unavoidably give the impression of being primarily based on a defensive and territorial attitude of protecting the exclusive and superior nature of the CJEU’s own jurisdiction. That said, the critical discussion on Opinion 2/13 should include a search for rational explanations as to why the CJEU’s opinion is negative, even if in the extreme. What follows is a short reflection on three factors towards that kind of an approach, without any intention to defend the Opinion itself.
Opinion 2/13 on EU accession to the ECHR: a Christmas bombshell from the European Court of Justice
On 18 December 2014, the ECJ delivered its long awaited Opinion 2/13 on the compatibility with EU law of the draft agreement for EU accession to the ECHR. The ECJ concluded, to the great surprise of many, that the accession agreement is not compatible with EU law. Indeed it found so many obstacles with the agreement that it has now rendered accession very difficult, if not impossible.
Let Not Triepel Triumph – How To Make the Best Out of Sentenza No. 238 of the Italian Constitutional Court for a Global Legal Order
The Italian Constiutional Court’s English) already inspired a flurry of comments in the blogosphere (see in EJIL talk! Christian Tams (24 Oct. 2014) and Theodor Schilling (12 Nov. 2014); on the Verfassungsblog amongst others Andrea Pin (19 Nov. 2014); on the Völkerrechtsblog Heidelberg Journal of International Law 2015, issue 1. In that Sentenza, the Corte refused to give effect to the ICJ’s judgment (in) Immunities in the Age of Global Constitutionalism (Leiden: Brill 2015)), but – maybe even more importantly – because it concerns the relationship between international law (in the shape of a judgment by the ICJ) and domestic law, as applied by a domestic (constitutional) court. Just the latest item in ... continue reading
Acceding to the ECHR notwithstanding the Court of Justice Opinion 2/13
The Court’s Opinion on the accession of the EU to the European Convention on Human Rights may have shattered expectations. The revised accession agreement that was renegotiated by the EU and its Member States with the State Parties to the ECHR, after an initial rejection in the Council by the UK and France, has been dodged by the Court. Tobias Lock in his very fast and intelligent comment answered that question by stating that ‘[i]t is clear that the drafters of the DAA will have to return to the negotiating table’. I respectfully disagree.
