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

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

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.

Текст от CORDIS, на английски · Данни: CORDIS, © Европейски съюз