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Homo Juridicus: Correcting Law's Behavioural Illiteracy

Periodic Reporting for period 3 - HomoJuridicus (Homo Juridicus: Correcting Law's Behavioural Illiteracy)

Reporting period: 2022-09-01 to 2024-02-29

Recent scientific research has revolutionised our understanding of how law can reduce misconduct. It shows that legal incentives are often flawed, and that strict punishment alone cannot deter misbehaviour. It offers a new approach for law to address wrongdoing, incorporating social norms and morals, tapping into unconscious cognition, and applying practical and technical interventions that obstruct misconduct. Yet, these fundamental insights continue to be ignored, and with every new disaster, scandal or major risk, we produce more rules with stronger punishment, without successfully addressing the true behavioural mechanisms at fault. The core problem is that the field of law has not made conduct central, nor produced a behavioural legal theory to guide these scientific insights into legal research, education and practice. As a result, legal rules to code conduct are made and operated by lawyers that are behaviourally illiterate. The proposed research will instigate the necessary behavioural revolution in the field of law. To do so, it will develop a behavioural jurisprudence through three steps. First, it will provide a comprehensive synthesis of the scientific insights about how legal rules affect misconduct. Second, it will empirically analyse flaws and biases in the behavioural assumptions of lawyers tasked with addressing misconduct. This will produce a fundamental critique of existing legal thinking, to be summarized in the Homo Juridicus, shorthand for the flawed legal model of human conduct just like behavioural economics helped produce the Homo Economicus to show the fallacies in traditional economic thinking. Third, the research will synthesize this into a behavioural jurisprudence offering a normative framework that makes successful internalization of positive conduct central in the field of law, and that guides legal research and education to incorporate the social science to enhance the effectiveness of law to improve behaviour.
The first major objective of this project is to provide the most up-to-date review of the available research on the different mechanisms that have been associated with compliance. To do so, the project has brought together contributions from a group of international experts, in the state-of-the-art Cambridge Handbook of Compliance (Cambridge University Press). This peer-reviewed volume, comprising over 1000 pages and 69 chapters (of which several were written by the members of the project and the remainder by leading international experts on the subject), provides a state-of-the-art academic summary of the field. It covers the different conceptualizations of how legal rules come to shape behavior, the different theories and empirical findings on different mechanisms through which rules affect behavior, and the way in which these mechanisms play out in particular interventions aiming to promote compliance. Moreover, this volume covers the different methods to study the interaction between law and behavior, and case studies from different legal and policy domains where this plays out. In addition, the project has produced and published a second book, The Behavioral Code (Beacon Press). This (popular scientific) book summarizes the literature in an accessible and fun manner for the general public and for different policy audiences. Moreover, it also addresses the general notion of behavioral jurisprudence the project seeks to develop. It was voted one of the essential books in 2021 on popular science blog Behavioral Scientist, and was a 2022 finalist for the Association of American Publishers Awards for Professional and Scholarly Excellence (PROSE Awards) and the American Bar Association’s Silver Gavel Awards. Last, the project has yielded a methodologically-oriented edited volume, Measuring Compliance: The Challenges in Assessing and Understanding the Interaction between Law and Organizational Misconduct (Cambridge University Press, 2022). This book provides vital in-depth insight into the methodological challenges of studying the way that law comes to shape behavior, and the limits of the available scientific knowledge on this question. In this way, this volume provides a vital resource for academics and practitioners seeking to study or monitor compliance.
The second major objective of the project is to study how lawyers who are tasked with shaping better behavior – prosecutors, regulators, and compliance officers – think that they can achieve this. The project has adopted two methods to study this. On the one hand it has studied behavioral assumptions of highly influential judges, focusing on influential decisions of the US Supreme Court. Here it has sought to understand how these judges analyze the behavioral effects of law in major criminal justice decisions, focusing specifically on claims about the deterrent effect of punishment in cases involving the death penalty or major sentence enhancement (i.e. Three Strikes And You’re Out-cases). More specifically, the project examines how justices analyze whether punishment deters, whether they directly refer to empirical studies, and whether their analysis is aligned with the available empirical evidence on this question at the time of their decision. In this way, the project reveals behavioral intuitions and the role of social science at the highest level of judicial decision making in the US. On the other hand, the project has examined this question by conducting an in-depth analysis of the thinking of actors who are tasked with operating the law and changing human conduct. For this purpose, interviews have been conducted with a range of actors, including prosecutors, compliance officers, regulators and police officials, in both the Netherlands and China. These interviews will be analyzed to reveal how these actors see behavioral change as part of their job, how they think the law can change behavior, and how their views on behavioral change relate to scientific insights on this question. The project will synthesize these insights to reflect more generally on the role that social science plays (and could play) in the operation of law.
Last, the project aims to understand more generally when (and why) people’s intuitions about what shapes compliance may differ from scientific evidence about this question. To study this, it has developed three distinct approaches. Firstly, a survey examining how counterintuitive scientific research about compliance is. Secondly, a survey examining which behavioral mechanisms and interventions people perceive to shape particular offenses. And finally, an experiment to assess how people process empirical scientific information when tasked to make decisions about law and behavior. Beyond this, the project group has also examined people’s intuitions about what makes others comply with COVID-19 mitigation measures, as part of a related, large-scale project on pandemic compliance. The unique setup of this study allows people’s intuitions to be directly compared with scientific evidence on what shapes compliance in this setting, based on the exact same population.
The Homo Juridicus project is spearheading a new approach to law and behavior, a behavioral jurisprudence. Its three book-length publications offer a combination of state of the art reviews of the field (The Cambridge Handbook of Compliance), a critical assessment of the field’s core methods (Measuring Compliance), and a popular science account of the field aiming for a broad non-academic audience. All three books have been very well received and have received endorsements from some of the most influential scholars from across the fields of management science, psychology, sociology, public administration, criminology, and law and society. The project has also generated impact beyond the academic domain. Project researchers have published its results in popular media, including the Los Angeles Times, The Hill, The Progressive, and Behavioral Scientist; moreover, they have started a regular blog about law and behavior at Psychology Today. Finally, they have disseminated their work by regularly presenting it for a range of different practitioners, including the English and Welsh Youth Custody Service, the Hawaii Attorney General’s Office, NatWest Bank, and the Fraud and Serious Crime Units of the Netherlands Public Prosecution Service.
During the upcoming second term, the project will position behavioral jurisprudence amongst other major approaches to the study of law (such as law and society, legal realism, and law and economics) and studies of behavior (such as behavioral economics and behavioral ethics). It will develop a research program for this emerging field, which will outline where empirical studies are needed, to complement the existing work, and to broaden its coverage of subjects and areas of study. For this purpose, the project will build on insights from complexity science, to develop an integrated view of law and behavior that transcends the existing narrow theoretical silos. Moreover, the project will also demonstrate what behavioral jurisprudence means for legal practice, and how legal education and practical training can come to better incorporate empirical insights about law and behavior.