Legal Liminality: An Inquiry Into the Cognitive Foundations of the Law

Informations projet

LIMEN

N° de convention de subvention: 844628

DOI

10.3030/844628

Projet clôturé

Date de signature de la CE 29 Mars 2019

Date de début 2 Septembre 2019

Date de fin 1 Septembre 2022

Financé au titre de

• EXCELLENT SCIENCE - Marie Skłodowska-Curie Actions

Coût total

€ 271 732,80

Contribution de l’UE

€ 271 732,80

Coordonné par

THE CHANCELLOR MASTERS AND SCHOLARS OF THE UNIVERSITY OF CAMBRIDGE
United Kingdom

Periodic Reporting for period 2 - LIMEN (Legal Liminality: An Inquiry Into the Cognitive Foundations of the Law)

Période du rapport: 2021-09-02 au 2022-09-01

Résumé du contexte et des objectifs généraux du projet

LIMEN asks, and attempts to answer, the question: what is law? Legal theorists have long insisted that law is more than just enforcement. This would imply that to understand law, we cannot simply observe it from the outside, we must understand the cognitive element on the part of participants in the practice. But what is this cognitive element?

The dominant accounts of it divide into those, within the law and economics paradigm, who see it as a cost-benefit analysis, and others, for instance, in the natural law tradition, who conflate it with morality. Recent evidence suggests, however, that the picture is more complex: neither are human beings as relentlessly self-interested as they are parodied to be as the homo economicus of rational-choice theory nor are they unconditionally rule-governed nor do they possess unlimited altruism. Remarkably—given the gravity of the tasks entrusted to the law—there has been very little systematic inquiry of an empirical nature into the question: what are the psychological foundations of law, as a mode of cooperation, that make it distinct from other institutions?

LIMEN attempted to fill that gap by trying to understand the relationship between decision-making at the individual level, group behaviour and social outcomes. It focused, in particular, on the role of trust and the notion of community in mediating these relationships, and the point at which informal social norms “tip” into formal law. Joining the dots between behavioural law and economics, moral psychology, the cognitive and affective sciences, legal theory and economic sociology, it drew on a range of methodologies currently in use in the American Empirical Legal Studies (ELS) tradition (with a focus on behavioural techniques) and did the groundwork to extend current practice by developing an approach specifically adapted to legal scholarship.

This pathbreaking research conducted between the Center for Advanced Study in the Behavioral Sciences at Stanford University and the Faculty of Philosophy at the University of Cambridge (as well as at the Moral Psychology Lab at Harvard University), stretched the boundaries of current knowledge, in disciplinary, methodological and, ultimately, theoretical terms, through pioneering approaches to the empirical study of law and making key contributions to the emergent field of empirical jurisprudence. In theoretical terms, it developed a new, empirically grounded paradigm of legal theory, using quantitative and experimental evidence to nuance and revise notions of what law is. An unprecedented feature of the project was the application of empirical evidence, still relatively novel for legal scholars, to the classic jurisprudential theory of H L A Hart, that is the staple of legal scholarship. Methodologically, the project sought to explore the interactive dynamics between individual-level cognition, group behaviour and social outcomes. To do so, it went beyond standard empirical legal studies (focused on context) or behavioural (focused on cognition) methods and shifted the emphasis to ones that bridge the gap between micro and macro level analyses, such as multi-level modelling, network analysis and agent-based modelling. The attempt to integrate macro and micro levels of analyses is entirely novel in legal scholarship. Empirically, the project developed an entirely novel method for testing for the emergence of a legal system.

It thereby contributed to real world change by decoding the way that law and legal systems function, with implications for pandemic response (or the question of whether rule of law metrics predict adherence to best practice), the regulation of technology (or whether complete or relational contracts produce better outcomes), climate change (e.g. the Paris Agreement as the green shoots of global climate governance), the Anglo-American crisis of the rule of law (and the attempts of autocrats, like Donald Trump, to undermine the law), development (or the question of whether treating law as a cognitive but also affective institution helps explain problems of legal transplantation) and a range of other challenges confronting human society.

Travail effectué depuis le début du projet jusqu’à la fin de la période considérée dans le rapport et principaux résultats atteints jusqu’à présent

LIMEN resulted in key papers either published in, or under review, at some of the world’s top science, social science and law journals including Nature, Cambridge International Law Journal, Journal of Empirical Legal Studies, Cambridge Law Journal, Rechtstheorie and Prometheus: Critical Studies in Innovation. In addition, it led to book chapters in Rule of Law: Cases, Strategies and Interpretations, Human Minds and Cultures and an as-yet untitled edited volume (a Festschrift for Joseph Stiglitz). The project will also lead to a book project (for which a proposal has been invited by leading academic presses).

LIMEN took an original approach to publicising its results: applying its frame to current events around the world. It has, accordingly, yielded over 150 op-eds, reprinted in 35 countries including in Project Syndicate (USA/UK), WIRED, Jackson Hole Economics, Diplomatic Courier, Market Watch (USA),The Independent (UK), The Globe and Mail (Canada), World Finance (UK), Social Europe (Germany), Behavioral Scientist (Czech Republic), Irish Examiner (Ireland), Korea Herald (Korea), Jordan Times (Jordan), Khaleej Times (UAE), Gulf Times (Qatar), Oman Observer (Oman), Arab News (Saudi Arabia), Times Kuwait (Kuwait), Valor Globo (Brazil), El Economista (Mexico), El Comercio (Peru), La Nation (Costa Rica) Bangkok Post (Thailand), Mint (India), Business Standard (Bangladesh), Jamaica Gleaner (Jamaica), well as TV, radio and print interviews (including with the Financial Times, Project Syndicate, Los Angeles Times, Chicago Tribune and others) and podcasts. Research emanating from, or associated with, LIMEN has also been cited by influential media and social media personalities like Brad DeLong, Barry Ritholtz and others.

Finally, a major international meeting, The Common Currency Conference, was organised under the auspices of LIMEN (in collaboration with the Center for Research in the Arts, Social Sciences and Humanities and the Cambridge Union) that brought together leading global scholars, policy makers, journalists and businesspeople, with former Finance Minister of Greece, Yanis Varoufakis as the keynote.

Progrès au-delà de l’état des connaissances et impact potentiel prévu (y compris l’impact socio-économique et les conséquences sociétales plus larges du projet jusqu’à présent)

By combining jurisprudential and empirical approaches, LIMEN made a critical contribution to the establishment of the emergent field of “empirical jurisprudence”. This is important not just scientifically, but for confronting many of the existential threats facing humanity. The unique method that LIMEN developed of testing for the emergence of “general normative force” in an institutional system—or the tipping from pre-legal to legal—is critical in matching the “concept” of the law (a la H L A Hart) with its empirical reality. The relevance of this approach extends to society’s capacity to confront challenges ranging from climate change to global poverty, global pandemic to threats from Artificial Intelligence, and beyond. The LIMEN approach will be useful in all instances where the solution to a collective action problem requires the capacity to expediently change group behavior by fiat—the unique characteristic of law; but instead of simply assuming legal efficacy, LIMEN shows the means of rigorously testing for the existence of legality and, going forward, will attempt to trace the path to the emergence of legality.

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