Daniel Kahneman’s Thinking, Fast and Slow (2011) is well known. It’s a book about decision-making from the perspective of cognitive psychology. It summarises the research of both Kahneman and the late Amos Tversky. It aims to enrich the “proverbial office water-cooler” discussions where “opinions are shared and gossip exchanged.” Kahneman hopes that it will allow us to survey our judgments and decision-making, and, importantly, identify the problems which arise when we make judgments or decisions. Like a decision-making doctor we will be able to label diseases, know symptoms, understand antecedents, and identify the causes of our poor-decisions. Research like this, however, has far wider implications which are well beyond the water-cooler.
For instance, it inspired the work of Richard H Thaler & Cass R Sunstein who wrote the bestseller Nudge: Improving Decisions about Health, Wealth, and Happiness (2008). This book has set the agenda for a new type of smart regulation. Indeed, governments are listening to this research; the UK Government is listening to this research. Much of this research, however, undermines the traditional assumptions and justifications held by jurists, legislators and judicial decision-makers with regard to human decision-making, i.e. that people are rational. Behaviour science is challenging some very deep rooted legal paradigms. The question arises: how should these insights of behaviour science be incorporated or understood by a legal system?
Questions like this were the theme of a workshop I attended last week in Florence. The workshop was hosted by the European University Institute and organised by Franz Leander Fillafer and Magdalena Malecka. The title of the workshop was “The Law and Politics of Behavioural Science: Historical Contexts and Conceptual Resources.” One of the key objectives of the workshop was to explore the historical relationship between a scientific or humanistic study of human nature and the generation of law. Since Cicero, if not before, philosophers and lawyers have made appeals to what is natural in order to justify or inform how we organise and arrange the law of any given society. It was, however, in the late seventeenth century that we began to explore human behaviour in a different way from the ancients or medieval philosophers. But we still, to this day, make appeals to what is natural or what occurs regularly within human nature in order to inform our organisation and development of the law. We asked therefore: how has the law responded in the past to theories of human nature? How has the law in the past been informed by theories of human behaviour? What is the relationship between theories of natural law and theories of human nature?
We explored, therefore, if it was possible to discern, from a historical perspective, any patterns or re-occurring relationships between the “discoveries” or “revelations” of theology, philosophy or science about the patterns of human behaviour and the policies, decisions and laws of different societies. Some contributors reflected on the fallacy of deriving an ought from an is, i.e. just because something occurs in the natural world or in human behaviour does not mean that we should shape the law in that way. Some contributors pointed-out that early scientific discoveries about human behaviour dispelled myths about human nature and attempts to differentiate human-beings on the basis of what is natural. Others gave examples of when policy-makers have been receptive to the insights of psychology or science. Some spoke about when understandings of human nature and law have been in tension. And a few contributors questioned what we can really learn from studies of human nature. Others asked whether looking at the past or human behaviour in this way helps tackle some of today’s problems. Can an understanding of human behaviour help tackle problems such as climate change, inequality, or globalised corporate power which transcends regional political power. Does history have a role here? Is there anything to be gained from an exploration of the past? What is the role of the juristic, judge or legislator in this debate?
It was a lively discussion. We expect to publish these papers in an edited collection in the near future and to continue this discussion.