Scientific foundations of the nudge technique as a new instrument of legal regulation

Abstract

The close attention of the modern theory of lawmaking to behavioral methods involves not only an assessment of the prospects for their use in the practice of legal regulation, but also an analysis of their scientific foundations, theoretical origins. Understanding the nature of human behavior is necessary to select adequate means of legal action. The lack of such an understanding among legislators leads to overestimated expectations from the adoption of normative legal acts: well-founded, socially useful rules may face rejection from society and mass disregard for legal requirements. Explaining the motives of people's behavior and decision-making mechanisms, psychological science helps to find the best means of influence, to implement "smart" regulation of human relations. In the article, the origins of ideas about behavioral methods of regulation are associated not only with the development of behavioral economics (R. Thaler), but also with earlier studies in psychology (S. Freud). The idea of smart regulation is compared with approaches known from the history of political and legal thought to the concept and essence of legal regulation.