Nudging Is Judging: The Inevitability of Value Judgments Consequences of the Collapse of the Fact/Value Dichotomy for Behavioural Law and Economics

This article shows that there can never be nudging without judging. Specifically, the essay analyses the impact of the collapse of the fact/value dichotomy on rational choice and behavioural law and economics. Not only does a nudge require an ex-ante value judgment, but facts and values are almost always inextricably entangled. Thus, the real problem does not lie in "getting the facts right" (i.e. judging people as neutrally as possible), but in the so-called "facts" themselves, which already contain value judgments. In the context of rational choice and behavioural law and economics, the term 'rational' is at the same time used in its positive meaning (how things are) and in its normative meaning (how things ought to be). As a result, researchers in BLE engage in both positive and normative science. Instead of accepting the normative and making it explicit, however, it is often shunned by researchers. In doing so, an unscientific double standard is maintained with the explicit positive science in the fore and the implicit normative science looming in the background. As a result, the normative concept 'rationality' is maximized under the guise of it being a positive concept while 'autonomy' is rejected as a legitimate concept for maximization on grounds of it being normatively laden. Pragmatic ethics could serve as a basis to make the normative transparent while at the same time not exclude it from scientific discourse.