An Interview with Johannes Keders

1. What were the most important chapters of your life / career?

Frankly speaking, there was no “most important” chapter, not in my private life, not in my education and not professionally either. Every single stage of my life was really important, instructive, interesting and also exhausting. I wouldn’t want to miss any of it. Each chapter was also essential for my further path, I couldn’t imagine my life without any of them.

2. What fascinates you about law?

The rule of law as the basis for the unconditional orientation of decision-making towards the constitution and the law. Furthermore, the development of a basis for decision-making that corresponds as closely as possible to the facts.

3. Did you like the judicial activity or your work as president of the Higher Regional Court more?

The judicial activity has always had a decisive influence on my work in the various administrative tasks that I have performed up to the position as President of the Higher Regional Court. Thus there is no “more” or “less” for me.

4. Why did you decide to support us with this year’s nudges & the NudgeNight? What appealed to you about the topic?

The idea that, in a democratic constitutional state, there might be something that causes (even) more people to voluntarily do what corresponds to the intent of the rules that society creates for itself, in addition to the self-evident compliance with these rules.

5. How do you rate nudging from a legal point of view? Do you think it is a good option or do you feel that laws and regulations are more effective? Or do you see nudging as a problematic intervention in terms of the constitutional law/ fundamental rights?

The lawyer likes to answer (and often rightly) “it depends”. Nudges are, in other words, not good or bad per se. It depends on their design in the particular context – and very much on whether the nudge restricts the constitutionally protected freedom of the individual.

According to the guiding principle of our constitution, people are not only allowed to think freely and determine their lives freely, they are also allowed to act unreasonably. Perhaps what seems unreasonable at the moment is simply more correct and wise in the long run. History is full of examples of misguided people (Galileo Galilei: “and yet it moves”). This, among other things, is how all nudges must be measured. They must not develop constraints from which the individual cannot escape or can escape only with great difficulty; nor must they aim to prevent him (unnoticeably for him) from making his own free decision . The mere fact that his or her behaviour is then deemed not right in the eyes of those who have developed what they see as a well-intentioned and reasonable nudge without alternative, is not sufficient to restrict freedom through nudges. Only the legislator can do that – and only within the limits of the constitution – in highly formalised procedures.

6. And how do you see it from a personal point of view?

Just like that, because I personally value my freedom as my greatest good.

7. Do you think nudging has a future in German legal policy? Can you think of a legal challenge where nudging could provide a solution?

Unfortunately, I still cannot answer either question to my satisfaction. My involvement with nudging so far has been interesting and instructive, but it is by no means complete. But perhaps I am just living too much in my vision of a society oriented towards the law.