Christoph Möllers

Choice Architecture in Democracies: Exploring the Legitimacy of Nudging

Experts advise governments as to common traits in human behavior that need to be taken into account when designing rules for situations of decision-making by individuals – for instance in the fields of health, retirement provisions, or education. »Choice architects« shape situations of decision-making in such a way that the individual will take the »right« decision with a higher probability than in an alternative landscape. Based on insights from behavioral economics, tools have been developed in order to motivate the citizen towards more »reasonable« conduct. The European Commission has been rewarding the reasonable, self-determined individual for a long time, and in the German Federal Chancellery, too, the search for behavioral economic guidelines toward efficient and cost-saving policies is under way. The »how« of state interventions for the facilitation of a good life is being widely discussed. The »if«, however, seems to be the more pressing issue. Are citizens’ virtues the business of the state? May the state influence and »nudge« its citizens, or even paternalistically act as their benevolent guardian? Are there constitutional limits to »liberal paternalism«? What about freedom of the individual, dignity, autonomy, and self-determination in a democracy? This volume brings together a collection of contributions that explore the promises and dark sides, the limits and possibilities of behaviorally informed regulatory strategies. All chapters in the first part of the book were, in substance, presented and discussed at the Verfassungsblog Conference »Choice Architecture in Democracies: Exploring the Legitimacy of Nudging« which we convened at Humboldt-Universitat zu Berlin in January 2015 – with the exception of Morag Goodwin’s chapter that had been discussed in a preceding Recht im Kontext conference on Human Dignity held at the Wissenschaftskolleg zu Berlin in July 2013 and is now also part of the edited volume »Human Dignity in Context« (Dieter Grimm / Alexandra Kemmerer / Christoph Mollers, eds., Recht im Kontext 5). Goodwin’s paper inspired our interest in a constitutionalist perspective on choice architecture and behaviorally informed regulation, and is reprinted here with thanks. Christopher McCrudden and Jeff King went even one step further and turned the gist of their two separate conference papers into a joint contribution, put up for discussion in the Berlin Seminar Recht im Kontext and at the Max Planck Institute for Human Development. The blog posts republished in the second part of the book were first published as an Online Symposium on Verfassungsblog in April 2015, taking further the discussion we had during three vibrant conference days in Berlin.

Multi‐Level Democracy

Modern democratic polities regularly operate at several political levels. In the case of the EU at the level of the member‐states and the EU itself, and in addition at federal, regional, and municipal levels. Is there any democratic rule to determine which level is more legitimate than the others? The article argues that from a majoritarian perspective there is none. Individual citizens may have quite different preferences with regard to the level that is of particular political importance for them. The article critically analyses different concepts, from sovereignty to demos, subsidiarity, and the judicial review of competences, and tries to show that none of them can provide a solution to the dilemma. Instead, democratic theory has to assume that in the co‐evolutionary process of institutions and societies at different political levels, the question of the final say has to be left open.

Unification of Laws in the Federal System of Germany

In Germany, the central instrument for unification of the legal order is the federal power to regulate matters directly. The legislative powers of the federation (Bund) are considerable, and the Bund has made use of them extensively, resulting in a highly uniform legal order. Most matters subject to intense public discussion such as penal law, family law or labor law are federalized, with federal courts of last instance playing a key role in the development of the law through judicial interpretation. Legislative powers of the component states (Lander) are remaining mostly in the realm of administrative and somewhat technical law. However, the Lander are entrusted with the implementation of federal laws to a great extent. The executive branches of the Lander also have substantial political influence on the lawmaking process at the federal level, above all through their participation in the Bundesrat. Therefore, German federalism has been characterized quite to the point as an “executive federalism” or as a system of “vertical separation of powers”. A separate source of great – and steadily growing – influence on legal unification in Germany is the law of the European Union.

Human Dignity in Context. An Introduction

Human dignity is a complex topic. It is a philosophical, a theological as well as a legal concept and refers to a long and manifold intellectual history – a history it brought to the human rights context, to which it has been applied only rather recently. Within the legal world, it remains a gateway for ethical arguments. And as such it has received increased attention in recent years. Equally when the prohibition of torture was called into question during the so-called war on terror or when the ethical limits of biotechnology became more relevant in the face of disappearing practical boundaries, these issues were debated in dignity-based language in and outside the legal world. Human dignity arguments thus transcend disciplinary boundaries. To confront this phenomenon, and as the title suggests, we attempt to put human dignity in context. On the one hand, bringing context to universal concepts is an ambivalent undertaking. As our arguments claim to be universal when we evoke human dignity, they defy the very idea of context. On the other hand, given the abstractness of the concept and its application to various fields, we run the risk of missing something if we ignore the different contexts. In fact, it may often be easier to agree on the violation of human dignity in a specific context than on the abstract meaning of the notion. It is no coincidence therefore that German constitutional lawyers, following Gunter Durig, approach dignity cases not by abstractly conceptualizing what is protected under art. 1 Basic Law but by determining acts of infringement instead. This volume is the result of two conferences on human dignity convened by the editors and held at the Wissenschaftskolleg zu Berlin (Institute for Advanced Study Berlin) on 16-18 November 2011 and 19-21 June 2013. As exercises in comparative constitutional law in context, both events brought together a wide array of scholars from various disciplinary and regional backgrounds.

Recht im Kontext. Ausgangspunkte und Perspektiven

Vielfältiger und unübersichtlicher wird das Recht. Längst ist das kompetitive, aber auch komplementäre Nebenund Miteinander verschiedener Rechtssysteme und normativer Ordnungen Teil des sozialen Alltags geworden. Rechtspluralismus ist allgegenwärtig. Jenseits der Staaten und der von diesen gegründeten internationalen Organisationen entsteht ein transnationales Recht, das sich von der institutionalisierten Politik emanzipiert hat und neue Fragen nach Autorität und Legitimation aufwirft. Dies gilt auch für die Verbreitung neuer Gerichte und gerichtsförmiger Spruchkörper jenseits der Grenzen des Staates, die direkte Wirkung auf Bürger und Unternehmen haben. Der vielfach übereilt totgesagte Staat bleibt unersetzlich, doch seine Außenhaut ist permeabel geworden. Neue Formen und Ebenen des inter-, supraund transnationalen Regierens verlangen nach einer Neubestimmung der Elemente hoheitlicher Gewalt. Die Liquidität der Autorität verlangt nach einer Neubestimmung des Regierens. Die Grenzen des Rechts und seiner Wissenschaft entgleiten hergebrachten Ordnungsmustern. Intradisziplinäre Differenzierungen wie etwa die Dichotomie von Öffentlichem und Privatem bedürfen kritischer, aber