Bergen Journal of Criminal Law and Criminal Justice • Volume 2, Issue 1, 2014,
pp. 32-55
Behavioural Analysis of
Criminal Law: A Survey
ALon HArEL*
1 Introduction
Behavioural analysis of criminal law exploits social science methodologies
(behavioural economics, psychology and even sociology) to explore the effects of
criminal law norms on criminals, judges, juries and other decision-makers, to
determine the optimal type and size of criminal sanctions, to identify the optimal
design of the enforcement system and the rules of evidence. Behavioural analysis of
criminal law often addresses, criticises, or complements the findings of the traditional
economic tools by using social sciences findings concerning the content of individuals’
beliefs, and the content of their prefer- ences. As criminals, policepersons, victims of
crime, judges, and other relevant agents form beliefs concerning probability of detection
and conviction, and those affect the pro- pensity to commit crimes, enforcement policy,
evidence law and procedural law are as relevant to the understanding of the effects of
criminal law as the substantive doctrines of criminal law itself. Hence both the
economic and the behavioural approaches to the analysis of criminal law challenge
the traditional doctrinal distinctions between criminal law, criminal procedure and
evidence and, last, the enforcement policy.
The behavioural approach to criminal law is founded on the research of behavioural
economists, psychologists and sociologists.1 Unlike traditional neo-classical
economics, the behavioural perspective is eclectic rather than unitary; it is composed of
various psy- chological findings including cognitive biases and their effects, prospect
theory, the effects
*
Phillip P. and Estelle G. Mizock Chair of Administrative and Criminal Law at the Hebrew University of
Jerusalem.
1
For previous surveys of the behavioural approach to criminal law, see McAdams and Ulen, Behavioral
Criminal Law and Economics, in 3 Criminal Law and Economics: Encyclopedia of Law and Economics
403, ed. Garoupa (Edward Elgar 2009) pp. 413-426, Garoupa, Behavioral Economic Analysis of Crime: A
Crit- ical Review, in EUR. J.L. & ECON. 15: 5, 8, 12-13 (2003), Jolls, On Law Enforcement with Boundedly
Rational Actors, in The Law and Economics of Irrational Behavior 268, eds. Parisi and Smith (Stanford
Uni- versity Press 2005) pp. 272-281. This survey differs however from these surveys as it aims also to
explore the philosophical foundations of the field. For a general description of economic and behavioural
approach to criminal law, see Harel, Economic Analysis of Criminal Law: A Survey, in Research Handbook
on the Economics of Criminal Law, eds. Harel and Hylton (Edward Elgar 2012).
1
, Bergen Journal of Criminal Law and Criminal Justice • 1/2014
of social norms, findings concerning the ways preferences and beliefs are being shaped
and even studies concerning happiness. Behavioural theorists call for the exploitation
of various cognitive misperceptions, biases and heuristics to increase the deterrent effect
of criminal law prohibitions and sanctions and/or increase their effectiveness in other
ways. This survey starts by examining in part 2 the theoretical foundations of
behavioural analysis of criminal law. I contrast behavioural analysis with retributive
justice values and, then, I contrast the behavioural approach to criminal law with
traditional neo-clas- sical economic analysis of criminal law and point out the
distinctive features of the for- mer. Part 3 illustrates the ways in which various
behavioural phenomena can be used to understand the effects of criminal law norms
and to design criminal law in a way that serves its social goals, in particular
deterrence. Part 4 examines critically the potential
contribution of behavioural studies to the optimal design of the legal system.
2 Theoretical foundations
To understand the contribution of behavioural analysis of criminal law to the study of
law one needs to point out what is distinctive about behavioural analysis of criminal
law, namely in what ways behavioural analysis modifies the ways criminal law should
be understood and/or reformed. In the first section of this Part, I contrast
economic/be- havioural analysis of criminal law with the traditional doctrinal/analytic
approach based on retributive justice. In the second section I contrast the behavioural
approach with its older relative – the traditional economic approach to criminal law –
and examine the commonalities and the differences between these two fields.
2.1 Criminal law versus the economic/behavioural analysis of criminal law
The traditional criminal law theorist believes that the criminal law primarily guides
people and instructs them. Criminal law sanctions ought to be imposed on agents
who committed wrongful acts because they ‘deserve’ to be punished, and the severity
of the criminal sanction ought to be proportionate to the wrongfulness of the act and
to the culpability of the actor.2
Some retributivists oppose using criminal law for the sake of realising any social goals
including deterrence and/or just distribution, as such a use violates the basic Kantian
principle under which one ought not use a person only as a means (not even as a
means to deter or prevent crimes).3 It is unjust to inflict a sanction on the person simply
because
2
Duff, Intention, Agency and Criminal Liability (B. Blackwell 1990) p. 103, Fletcher, Rethinking Criminal
Law (Little, Brown and Company 1978) pp. 454-459, Nozick, Philosophical Explanations (Harvard
University Press 1981) pp. 363-397.
2
,3
Rauscher, Kant’s social and Political Philosophy, in Stanford Encyclopedia of Philosophy, available at
http:// plato.stanford.edu/entries/kant-social-political/ (last visited 12.5.2014).
3
, Harel
such a sanction brings about socially desirable outcomes; the only justification for such
a sanction is that the person ‘deserves’ it.
This view contrasts sharply with the view of law and economics and behavioural theo-
rists. Under their view, criminal law is a mechanism for preventing/deterring undesirable
behaviour.4 Most typically criminal law norms (as well as other legal norms) are perceived
as incentives for individuals to behave in a way that is socially optimal. A state of
affairs that is socially optimal is often identified with efficiency, but it need not be
identified only with efficiency. Distributive justice concerns could also be regarded as a
legitimate goal of the economic/behavioural analysis.5
Unlike the retributivist tradition which often regards punishment as desirable in itself
irrespective of its consequences, economic and behavioural approaches regard
punish- ment as evil in itself (given its costs to society and to the criminal) but, it is at
times a necessary evil to deter or prevent crime.6
By regarding efficiency (or any other social goals) as the primary (or even
exclusive) consideration underlying criminal law, economic analysis of law as well as
behavioural analysis conflict with the retributivist tradition and, such a conflict
inevitably triggers incongruities between criminal law as it is commonly justified and
understood and the economic/behavioural approach to criminal law. Let me briefly
explore two examples of such incongruity.
The first incongruity touches upon fundamental assumptions concerning
human rationality. In different ways the traditional criminal law approach and the law
and eco- nomics approach are founded on assumptions concerning rationality. In
contrast the be- havioural approach relies heavily on the irrationality of agents or, at least
on assumptions concerning ‘bounded rationality’, namely, on the existence of
limitations on rationality. Most typically, the behavioural approach to criminal law
often calls for exploiting cogni- tive errors and irrational human dispositions to deter
or prevent crime. The policy rec- ommendations of behavioural theorists in such cases
are founded often on methods that can be described as manipulative and fraudulent. For
instance it was argued that to deter parking violations one ought to use ‘tricks’ such as
using ‘large, bright orange tickets that
4
This view follows the utilitarian theory developed by Bentham, An Introduction to the Principles of
Morals and Legislation 74, eds. Burns and Hart (1996). Becker, Crime and Punishment: An Economic
Approach, in Journal of Political Economy 76:169-217 (1968), used contemporary neo-classical economics
tools to de- velop Bentham’s insights. For a more legally informed doctrinal analysis of criminal law
along these lines, see Posner, An Economic Theory of Criminal Law, in Columbia L. Rev. 85:1193 (1985).
5
Harel, Efficiency and Fairness in Criminal Law: The Case for a Criminal Law Principle of Comparative
Fault. California L. Rev. 82:1181, 1201-8 (1994), Harel and Parcharmovsky, On Hate and Equality. Yale
L.J. 109:509 (1999).
6
This was already the view of Bentham 1996 who maintained: ‘all punishment is mischief, all punishment in
itself is evil.’ Bentham also inferred from this observation the principle of ‘frugality of punishment’, namely
that punishment ought to be as small as possible to achieve its social goals. I believe it is unfortunate
that this principle has been forgotten by contemporary legislators and judges.
4
pp. 32-55
Behavioural Analysis of
Criminal Law: A Survey
ALon HArEL*
1 Introduction
Behavioural analysis of criminal law exploits social science methodologies
(behavioural economics, psychology and even sociology) to explore the effects of
criminal law norms on criminals, judges, juries and other decision-makers, to
determine the optimal type and size of criminal sanctions, to identify the optimal
design of the enforcement system and the rules of evidence. Behavioural analysis of
criminal law often addresses, criticises, or complements the findings of the traditional
economic tools by using social sciences findings concerning the content of individuals’
beliefs, and the content of their prefer- ences. As criminals, policepersons, victims of
crime, judges, and other relevant agents form beliefs concerning probability of detection
and conviction, and those affect the pro- pensity to commit crimes, enforcement policy,
evidence law and procedural law are as relevant to the understanding of the effects of
criminal law as the substantive doctrines of criminal law itself. Hence both the
economic and the behavioural approaches to the analysis of criminal law challenge
the traditional doctrinal distinctions between criminal law, criminal procedure and
evidence and, last, the enforcement policy.
The behavioural approach to criminal law is founded on the research of behavioural
economists, psychologists and sociologists.1 Unlike traditional neo-classical
economics, the behavioural perspective is eclectic rather than unitary; it is composed of
various psy- chological findings including cognitive biases and their effects, prospect
theory, the effects
*
Phillip P. and Estelle G. Mizock Chair of Administrative and Criminal Law at the Hebrew University of
Jerusalem.
1
For previous surveys of the behavioural approach to criminal law, see McAdams and Ulen, Behavioral
Criminal Law and Economics, in 3 Criminal Law and Economics: Encyclopedia of Law and Economics
403, ed. Garoupa (Edward Elgar 2009) pp. 413-426, Garoupa, Behavioral Economic Analysis of Crime: A
Crit- ical Review, in EUR. J.L. & ECON. 15: 5, 8, 12-13 (2003), Jolls, On Law Enforcement with Boundedly
Rational Actors, in The Law and Economics of Irrational Behavior 268, eds. Parisi and Smith (Stanford
Uni- versity Press 2005) pp. 272-281. This survey differs however from these surveys as it aims also to
explore the philosophical foundations of the field. For a general description of economic and behavioural
approach to criminal law, see Harel, Economic Analysis of Criminal Law: A Survey, in Research Handbook
on the Economics of Criminal Law, eds. Harel and Hylton (Edward Elgar 2012).
1
, Bergen Journal of Criminal Law and Criminal Justice • 1/2014
of social norms, findings concerning the ways preferences and beliefs are being shaped
and even studies concerning happiness. Behavioural theorists call for the exploitation
of various cognitive misperceptions, biases and heuristics to increase the deterrent effect
of criminal law prohibitions and sanctions and/or increase their effectiveness in other
ways. This survey starts by examining in part 2 the theoretical foundations of
behavioural analysis of criminal law. I contrast behavioural analysis with retributive
justice values and, then, I contrast the behavioural approach to criminal law with
traditional neo-clas- sical economic analysis of criminal law and point out the
distinctive features of the for- mer. Part 3 illustrates the ways in which various
behavioural phenomena can be used to understand the effects of criminal law norms
and to design criminal law in a way that serves its social goals, in particular
deterrence. Part 4 examines critically the potential
contribution of behavioural studies to the optimal design of the legal system.
2 Theoretical foundations
To understand the contribution of behavioural analysis of criminal law to the study of
law one needs to point out what is distinctive about behavioural analysis of criminal
law, namely in what ways behavioural analysis modifies the ways criminal law should
be understood and/or reformed. In the first section of this Part, I contrast
economic/be- havioural analysis of criminal law with the traditional doctrinal/analytic
approach based on retributive justice. In the second section I contrast the behavioural
approach with its older relative – the traditional economic approach to criminal law –
and examine the commonalities and the differences between these two fields.
2.1 Criminal law versus the economic/behavioural analysis of criminal law
The traditional criminal law theorist believes that the criminal law primarily guides
people and instructs them. Criminal law sanctions ought to be imposed on agents
who committed wrongful acts because they ‘deserve’ to be punished, and the severity
of the criminal sanction ought to be proportionate to the wrongfulness of the act and
to the culpability of the actor.2
Some retributivists oppose using criminal law for the sake of realising any social goals
including deterrence and/or just distribution, as such a use violates the basic Kantian
principle under which one ought not use a person only as a means (not even as a
means to deter or prevent crimes).3 It is unjust to inflict a sanction on the person simply
because
2
Duff, Intention, Agency and Criminal Liability (B. Blackwell 1990) p. 103, Fletcher, Rethinking Criminal
Law (Little, Brown and Company 1978) pp. 454-459, Nozick, Philosophical Explanations (Harvard
University Press 1981) pp. 363-397.
2
,3
Rauscher, Kant’s social and Political Philosophy, in Stanford Encyclopedia of Philosophy, available at
http:// plato.stanford.edu/entries/kant-social-political/ (last visited 12.5.2014).
3
, Harel
such a sanction brings about socially desirable outcomes; the only justification for such
a sanction is that the person ‘deserves’ it.
This view contrasts sharply with the view of law and economics and behavioural theo-
rists. Under their view, criminal law is a mechanism for preventing/deterring undesirable
behaviour.4 Most typically criminal law norms (as well as other legal norms) are perceived
as incentives for individuals to behave in a way that is socially optimal. A state of
affairs that is socially optimal is often identified with efficiency, but it need not be
identified only with efficiency. Distributive justice concerns could also be regarded as a
legitimate goal of the economic/behavioural analysis.5
Unlike the retributivist tradition which often regards punishment as desirable in itself
irrespective of its consequences, economic and behavioural approaches regard
punish- ment as evil in itself (given its costs to society and to the criminal) but, it is at
times a necessary evil to deter or prevent crime.6
By regarding efficiency (or any other social goals) as the primary (or even
exclusive) consideration underlying criminal law, economic analysis of law as well as
behavioural analysis conflict with the retributivist tradition and, such a conflict
inevitably triggers incongruities between criminal law as it is commonly justified and
understood and the economic/behavioural approach to criminal law. Let me briefly
explore two examples of such incongruity.
The first incongruity touches upon fundamental assumptions concerning
human rationality. In different ways the traditional criminal law approach and the law
and eco- nomics approach are founded on assumptions concerning rationality. In
contrast the be- havioural approach relies heavily on the irrationality of agents or, at least
on assumptions concerning ‘bounded rationality’, namely, on the existence of
limitations on rationality. Most typically, the behavioural approach to criminal law
often calls for exploiting cogni- tive errors and irrational human dispositions to deter
or prevent crime. The policy rec- ommendations of behavioural theorists in such cases
are founded often on methods that can be described as manipulative and fraudulent. For
instance it was argued that to deter parking violations one ought to use ‘tricks’ such as
using ‘large, bright orange tickets that
4
This view follows the utilitarian theory developed by Bentham, An Introduction to the Principles of
Morals and Legislation 74, eds. Burns and Hart (1996). Becker, Crime and Punishment: An Economic
Approach, in Journal of Political Economy 76:169-217 (1968), used contemporary neo-classical economics
tools to de- velop Bentham’s insights. For a more legally informed doctrinal analysis of criminal law
along these lines, see Posner, An Economic Theory of Criminal Law, in Columbia L. Rev. 85:1193 (1985).
5
Harel, Efficiency and Fairness in Criminal Law: The Case for a Criminal Law Principle of Comparative
Fault. California L. Rev. 82:1181, 1201-8 (1994), Harel and Parcharmovsky, On Hate and Equality. Yale
L.J. 109:509 (1999).
6
This was already the view of Bentham 1996 who maintained: ‘all punishment is mischief, all punishment in
itself is evil.’ Bentham also inferred from this observation the principle of ‘frugality of punishment’, namely
that punishment ought to be as small as possible to achieve its social goals. I believe it is unfortunate
that this principle has been forgotten by contemporary legislators and judges.
4
