Ubi societas, ibi ius: Le nudging dans la perspective critique du droit en tant que raisonnement pratique

Résumé En

My study aims to highlight a number of the criticisms of nudging in relation to various elucidations of law, in particular positivist concepts as well as law as practical reasoning. It attempts to demonstrate that nudging is about imposing a direct impact on human behaviour, at least insofar as this sort of regulation instantly triggers a cause in ordinary human behaviour by systematically taking advantage of our mistakes. Not only nudging, but also normative and realist legal positivism affirm this method of causal and direct regulation. Ubi societas, ibi ius—law, on the other hand, as practical reasoning, consists solely of influencing the human crowd through persuasion. I have no doubt that certain incentives that function as rhetorical devices are of course welcome in the empire of law. On the whole, however, the autonomy of ordinary, imperfect, and reasonable people calls for social life to be regulated by legal influence and persuasion. This technique allows for better and fairer regulation than nudging. Of course, nudging is right to reject legal positivism, but it remains inferior to the concept of law as practical reasoning.