A Short Note On Why Behavioural Economics Should Matter to Criminal Lawyers

In some sense this blog posting is both a book review and a legal analysis. It is a book review as this blog arises from my reading of the Daniel Kahneman’s book entitled Thinking, Fast and Slow. It is also a legal analysis as the ideas and theories arising from Kahneman’s Nobel Prize winning research form the basis of my suggestion that it is time to critique some traditional criminal law principles. In the end what this blog is about is connections and how we, as in the legal profession “we,” must be cognizant of new and innovative developments in other subject areas, in this case social sciences, in order to craft new and innovative arguments. New arguments can lead to new law and this book might just be the catalyst for this kind of change.

I will not belabour the specifics of the book nor will I give a deep analysis of it. That kind of discussion should be done in a formal setting as in a well-reasoned journal article but I will leave that to a later opportunity. Essentially, Kahneman and his research partner did a series of break through behavioural testing which turned the field of economics on its head.  The two researchers, as psychologists, approached the construction of the rational Economic or Econ person in a totally different manner than the economists did previously. When I say previously, I mean the theories had been in place and used for decades. This would be, in Kahneman’s view, a good example of theory-induced blindness. In any event, Kahneman showed that the basic Econ, which was a staple figure in economic theory, was not in fact rational and at times, even down right irrational. Well, not really irrational, as the research showed there were a pattern to the behavioural responses but not the expected pattern of the Econ. Instead the Econ was really a Human – someone who made choices, often seemingly economically irrational choices, not based on the utility theory favoured by the economists but based on other more ephemeral reasons including fear, loss, and bias. What caused such a stir in the field of economics was that Kahneman and his partner could actually prove, through research data, that this was so. The rational Econ was a false promise and not the stuff upon which sound economic theory should be based. Additionally, what economic theory needed were better reference points – starting points from which the Human could become a better decision maker. In other words, the Econ was not working with a full deck or full information upon which these economic decisions or even life changing decisions should be made.

There is, of course, more to the book and the prize winning economic theory, called prospect theory, which arises out of Kahneman’s research. For instance, the first part of the book dwells on the cognitive theories of how and why we make decisions or choices. According to Kahneman we have an intuitive System 1, which thinks fast enabling us to make split second decisions and gives us speedy answers to questions like one plus one or the colour of the sky. We also have a slower or lazier System 2, which kicks in when we need to give a decision some thought such as the answer to 124 times 26 or remembering the lines of a poem we may have learned when we were young. These systems do not work totally independently. Although being aware of these two systems we can improve the correctness of our outcomes by slowing down our thought processes to allow System 2 to take over so we can improve our chances of “getting it right,” mostly we reflexively defer to our System 1, particularly when faced with exigent circumstances. This often produces acceptable outcomes as our System 1 works so fast as it is primed with crucial experiential information. However, these stored memory fragments are sometimes incorrect leading us to make bad choices and erroneous decisions. In those instances, we have no real choice but to simply go along for the ride.

So how does this lead to a critical analysis of legal principles? By extrapolating and applying these research based theories to the underlying reason for certain legal constructs, we can argue that certain unquestioned legal principles used in criminal law such as the “reasonable person” standard and the well-accepted premise that we intend the natural consequences of our actions (see my blog on the Walle case), may in fact no longer be valid. It is time, therefore, for the legal profession to break out of our theory-induced blindness and integrate, in the appropriate case, theories from other areas of the science and humanities to ensure that the law is a real reflection of society. Now, doesn’t that sound reasonable?