Nudge, its application in Chilean law, and its potential constitutional issues

Abstract

In the last few years different regulations consistent with the scholarly notion of nudge have been incorporated to Chilean law. Since these regulations aim to influence the systems that guide people’s cognitive processes, comparative literature on the subject recurrently questions their constitutionality from the standpoint of human dignity, individual liberty, democracy, and the principle of publicity and transparency. The main idea of this article is that although such questionings should not be overlooked, they do not have a universal scope and only refer to specific categories of this kind of regulation. In light of this observation it is stated that there is nothing intrinsically illegitimate in nudging and it identifies parameters to evaluate their constitutionality.