The Theory Of Legal "boost" And Its Prospects In China

The most basic economic man hypothesis of traditional economic theory has proved to be too simple to adapt to the increasingly complex social environment and gradually the predictive value of its theory weaken.The behavioral economics that rise after pointed out that when people make choices,they are usually dominated by bounded rationality,limited willpower and limited self-interest to make decisions that are not helpful to their own goods.In addition,the new findings of cognitive psychology in the social sciences,the existence of two sets of cognitive systems in the human brains has reached consensus.On the basis of this theory,the NUDGE theory came into being.As a new knowledge spectrum of law and economics based on the related scientific achievements such as behavioral economics and cognitive psychology,the NUDGE theory is enough to attract considerable attention in China's legal research.Since its inception,the NUDGE theory has been continuously tested by theory and practice.In the United States,the NUDGE theory has received strong support from the government,where the nudge toolboxes is used most skilled.Later,European countries have followed to launch their own nudge tools.However,the road of NUDGE theory is not always smooth,and the inherent paternalistic background contained in the NUDGE theory has also made it criticized.It is worth noting that there is a distinction between soft and hard within the theory of paternalism.Critics always criticized from the perspective of hard paternalism,and their foothold often comes down to the fact that hard paternalism will violate human freedom and contradict people's cognitive defense.From the perspective of typology,soft paternalism breaks away from the mandatory intervention of the doer and strengthens the respect for the true choice of the doer.Therefore,the overall critique of paternalism cannot be completely used on soft paternalism.As a kind of libertarian paternalism,the intervention is weaker than soft paternalism.The intervention logic of NUDGE is not to restrict the choice of the doer,but to guide people to make more favorable choices through designing choice architecture.And ultimately the right to choose is still in the hands of the doer.It is easy to say that the NUDGE theory adopts a strengthening choices path rather than the criticized restricting choices path.In China,the NUDGE theory has not set off the theoretical wave which is set off in imagination,but related basic theoretical research has been involved.Manyscholars in China have conducted research on legal paternalism.These studies have laid a solid theoretical soil for the NUDGE theory to a certain extent and created a theoretical stage with expectation possibilities.In the field of law in China's departments,there are a large number of practices of paternalism,such as criminal law,contract law,labor law,social insurance law,consumer protection law,tort law and other fields,there are many paternalistic institutional arrangements.If we want to incorporate it into the process of modernizing the rule of law in our country,we must take into account the uniqueness of China's rule of law modernization.Even if the NUDGE theory is mature in foreign countries.Due to the strong government intervention in China in the past,the direction of China's NUDGE innovation path should be diverted from strong push to good push.Legal paternalism is carried out under the circumstance of limited government.This is very different from the authoritarianism in the traditional perspective.It can neither bring the autocratic hat to paternalism nor put western characteristics on the NUDGE theory of China.In the Western NUDGE theory,the state and the government put more emphasis on a kind of good help,that is,to respect the greatest freedom of human beings in the maximum of the paternalistic background.In the current practice of the rule of law in China,NUDGE should emphasize a kind of good push,that is,to improve people's ability to optimize and better help people realize the optimal choice of interests.This kind of push will largely become a relatively hidden soft power,so the legitimacy and rationality of NUDGE must be regulated by the principle of proportion,the principle of public participation and the principle of accountability.