The Behavioral Code: The Hidden Ways the Law Makes Us Better . or Worse

by Benjamin van Rooij

On and on it goes, until finally one student gives the answer we are looking for. “it is a stack of paper.” Exactly: words printed on paper. In the end, that is what the legal code is, or at least what it always was until we developed digital legal databases and it became words represented by zeros and ones. And once we see what the legal code really is, its failures to change behavior do not seem so surprising. Simply by writing a text, legislators somehow hope to change real everyday behavior. But how can text, whether printed or digital, affect our behavior? How can law in the books become law in action? This is no easy feat.

To understand how this set of paper rules shapes behavior, we must change the perspective. Rather than take a magic pill and see the rules, we must come to see the way people respond to such rules. This lets us see a very different code, a code of behavioral mechanisms: the behavioral code.

The simple fact that a new legal rule was adopted changed behavior tremendously. From a behavioral perspective, this means two things. First, people learned what the new rules were and what behavior they required. All too often this is not the case. Much of the legal code remains unknown and therefore largely ineffective. Second, simply by changing the rule, people started to change their behavior. They did so even though there was no clear enforcement effort yet, and thus they responded to the mere fact that it was the law.

By instituting a fine, the law made people fear the repercussions of not buckling up. But what is interesting here is that the fines were quite low, much lower than for speeding, where fines do not seem to work. Somehow these low fines triggered the desired behavioral responses. Next came persuasion through public messaging campaigns that convinced people that buckling up was in their own interest. Such campaigns sought to move seatbelt decisions from an extrinsic motivation (“I don’t want to get punished”) to an intrinsic motivation (“it’s in my own self-interest, so I don’t get hurt”). Then came the warning beeps. These annoying beeps created a practical obstacle for those who were still not buckling up.

To improve our laws and make them more effective, we need to understand the behavioral code. Here social science is key. Decades of research have unearthed the behavioral mechanisms that shape human responses to legal rules. Science has made the invisible behavioral code visible. It has shown how our laws can shape people’s motivations and adapt their situations to improve compliance and prevent harm.

Politicians love punishment. Maybe they disagree on who deserves to be punished, but punishment itself is their favorite response for bad behavior.

Rather than just assess whether punishment is fair or justified, we must ask whether and how punishment shapes behavior and reduces crime. FEARING

“Every punishment which does not arise from absolute necessity is tyrannical.”16 Beccaria thus forced his readers to think about the effect of punishment on changing behavior. His focus was on preventing crime, reducing damaging behavior. And as such, he saw punishment not as a form of retribution or compensation for the victims but as a behavioral instrument.

Beccaria developed ideas about what drives our fear of punishment. He articulated three core elements of deterrence. The first is the severity of the punishment. The more severe the punishment, the more likely people will fear it. The second is the certainty of the punishment. The more likely rule breakers are to get caught and punished, the more likely people will fear punishment. And third is the swiftness or promptness of the punishment. The longer the time lag between breaking rules and receiving punishment, the less people will fear punishment and the less it will deter them. For

General deterrence is far preferred over specific deterrence. Specific deterrence would only work after an offender has already committed a crime and has been punished for it.

But with general deterrence, punishment can achieve a leveraged effect. If just one person is punished, many others who learn of the punishment can be deterred. The question is whether punishment deters other potential offenders. Just

If the certainty of being caught matters, law enforcement becomes essential for deterrence. The idea is that people think twice about committing crimes when police are visible in a community. So hiring more officers or simply making police officers more visible in communities can reduce crime.64 The latter is referred to as the sentinel effect: police presence serves as a sentinel function that deters and prevents crime by making the chances of apprehension extremely high.65 Studies find that investing in police is a much more efficient way to deter crime than investing in the prison system.66 of

Here we must add a word of caution. If the hot-spot policing strategy is executed in the wrong way, in the wrong context, and without ample, ongoing input and supervision from community members, the results can be terrible.

Detecting and punishing violations is not enough. Equally important is that the enforcement action is properly communicated.

For instance, a study of over fifteen hundred adults from fifty-four large urban counties in the US showed that there was a near-zero correlation between people’s perceptions of the severity and certainty of punishment and the actual numbers.

All in all, this body of research shows a key yet often overlooked aspect of deterrence: for punishment to deter crime, not only must it be certain; people must also perceive it to be so.

So it seems that the behavioral code that shapes people’s responses to the law consists of incentives, an endless array of sticks and carrots.

But for some legal scholars and many economists, tort is even more ambitious than being merely restorative; it is also supposed to help prevent damaging behavior in the future. This is the reason why some jurisdictions, like the one in Florida where the Hogan case took place, have punitive damages. Such damages do not serve merely as compensation; they serve to deter damaging parties from engaging in harmful behavior in the future, as well as to deter others from engaging in similar conduct.

Tort may have the same problems in achieving deterrence as criminal punishment. For tort to deter it must be inevitable, yet achieving a high certainty of being sued and having to pay actual damages is difficult. It means that for every form of damage, there must be plaintiffs who are willing and able to successfully sue for damages. Shareholders are much more in a position to do so than victims of car crashes, medical errors, environmental pollution, unsafe products, or hazardous working conditions. Everyone else would need their own personal Peter Thiel.

For tort to deter, it also means that, for every form of tort, people who may cause damages should be aware of the liability they face. Here it is more likely that corporate executives, with all the legal advice they get on a day-to-day basis, are better informed than most doctors or drivers, for instance.

tort system should be more about ensuring that paying damages becomes inevitable rather than focusing on the size of damages to be paid. This means a refocusing of the current system is necessary, toward easier access for plaintiffs to sue for damages that actually occurred and away from punitive damages.

If used properly, external incentives can promote self-regulation and intrinsic motivation.22 The key is to focus on the behavior, not simply the incentive. it’s one thing to simply give the sticker and say “Good job.” it’s far better to also explain why the sticker was earned.

Thus, the study shows a major obstacle for rewards in improving behavior: they have to be large enough to work, and that may not always be possible. Overall, the available empirical evidence is mixed regarding the effect of positive incentives to improve compliance and reduce damaging behavior. We see that there is evidence that positive rewards can work. Yet we also see that rewards can backfire, that at times they are not cost-effective and other times are unsustainable or unaffordable.

Shu then had another group of her students sign an honesty pledge before they attempted the puzzles. Pretty much, they just pledged to be honest. Nothing else changed. The risks of cheating didn’t change, nor did the likelihood of getting caught. And the students were still earning real money. Yet she found that her students cheated far less if they signed an honesty pledge. Simply signing a pledge made them more honest.

They found a variety of forms and instances where we sign our names and pledge that we completed the form accurately and honestly, like our tax filings or insurance forms. The only problem is that in these real-world forms, people sign their names after they have completed them. We do so because we need to attest that what we filled out was the truth, the whole truth, and nothing but the truth. Think about that for a second. If we have already filled out the form, signing our name at the bottom of the form cannot influence our behavior while we fill out the form. Shu and her colleagues came up with a simple yet brilliant idea: what happens if we have people sign their names at the top of the form instead of at the bottom?

On average, people who signed at the top of the form reported a substantially lower amount of mileage than those who signed at the bottom—a difference of more than 10 percent. Top-signers were significantly more honest than bottom-signers.35

By signing up front, we implicitly focus attention on ourselves. And by focusing such attention on ourselves, we become more truthful in what we are about to do. Once we put our name down, the information we provide becomes a reflection of who we are and how we see ourselves.

What mattered here was human cognition. The way human brains process information makes us respond in unexpected ways that defy the design of ordinary cost-benefit types of rational, calculated incentives.

There is an important reason our brains function this way. If all our decisions were deliberate, rational, and slow, and if we always relied on System 2, we would be unable to function. Think about driving. In learning to drive, we clearly use System 2. We locate the brake, the gas pedal, the mirrors, the turn signals, and, in the case of a manual transmission, also the clutch and stick. When we shift into gear, we slowly press on the gas, carefully, fully aware, checking for cars, traffic signs, and our speed. By the end of the first lesson, most people are exhausted. Yet fast-forward a year, and most people are no longer aware of what they are doing when driving; they are able to have conversations, listen to music, and drive for hours on end. By then, they have become able to switch to System 1, allowing them to carry out a complex task with ease and without much conscious thought. For law and behavior, this has immense implications. When the law seeks to influence human behavior through incentives, it assumes that people weigh these incentives rationally. It assumes that our actions are all thought out, purposeful, and rational. The law assumes that people will weigh the incentives and disincentives we’ve provided when they decide whether to break the law. The law speaks mostly to the rider and not to the elephant.

“Think about who you will be 20 years from now, and write about the person you are now, which topics are important and dear to you, and how you see your life.” People who wrote these letters to their future self were less inclined to commit minor crimes.

Clearly, priming can work remarkably well. Priming is a deliberate, subtle, and often simple way to use our knowledge of cognitive processes to influence behavior. With the eyes, the cafeteria achieved better compliance with its rules. By having people sign an honesty pledge up front, we can reduce fraudulent behavior on insurance forms. In a variety of ways for a variety of behaviors, psychologists have been able to change behavior on an unconscious level. Primes

Primes do, however, have several limitations. So far, we see that the scope of applicable primes mostly covers minor misbehavior. Similarly, most other examples of nudging and choice are about stimulating prosocial and healthy behavior, like charity donation, collaboration, and healthier eating, or minor forms of rule breaking such as littering or cheating.60 Sure, it is nice that we can prime people to clean up after themselves. And, yes, it’s great to reduce cheating on a laboratory test. But for more major offenses, using primes may be much harder. Whether

Another question is whether primes would continue to work if they were introduced as a matter of policy. If all cafeterias had eyes on the wallpaper, all forms asked us to sign at the top, or all mirrors showed our future self, maybe we would become so used to this that it would no longer affect us. Finally, and highly frustratingly, there is the unfortunate fact that some of these experimental studies have not been replicated.

This example shows us a different part of the behavioral code. Rather than rely on incentives such as fines or liability, we can efficiently and effectively persuade people to do the right thing. In this case, the video offers a smart moral appeal developed for a young audience.

He found that deterrence—the fear of punishment—did not impact why people obey or disobey the law. Instead, he found that people’s values and norms mattered. By far the strongest predictor of compliance was whether people held that these laws were in line with their own morals. The more they morally saw that littering was a problem, the more they complied with the littering law. The more they morally rejected drunk driving, the less they engaged in drunk driving.

If the law is in line with their morals, people will be much more likely to obey it, even if there is limited enforcement. Many of our morals are deeply ingrained, learned at an early age from our parents, our schools, or directly from our friends.

Moral appeals to comply with the law should be very different for people who make judgments at stage two (where appealing to their own interests works) than at stage four (where it is all about duty). Subsequent research provided new insights about human moral decision-making.

All of this shows that people do not engage in clear reasoning before they come to a moral judgment. Jonathan Haidt, a psychologist at New York University who was the lead author of those studies, concluded that Kohlberg and others who focused on moral reasoning suffered from a fundamental oversight. Kohlberg had looked at how children develop morality through asking them to explain what they thought about moral dilemmas. As Haidt explains: “Kohlberg thought of children as budding moral philosophers.” Yet what Kohlberg was studying was the post hoc rationalization of a moral judgment, not the moral intuition that shapes people’s moral judgments. Critically, moral reasoning does not cause moral judgment. Rather, Haidt believes, moral reasoning comes after people have made a moral judgment based on their intuition about right and wrong. Thus, there is doubt that moral reasoning can predict moral behavior.

Does this mean that people do not engage in deliberative moral reasoning and that all they do is intuitive? Not exactly. System 1 and System 2 operate as a dual system in which we combine fast and automatic responses with slower deliberative cognition. If people really want, they can activate their System 2 to do the hard work of calculating costs and benefits while arresting their instant System 1 responses. They can, in effect, engage in moral reasoning if they can consciously pause their moral intuition.22

good illustration of ethical fading is a study that found that participants who cheated to get paid more money were more likely to have forgotten the honor code they had signed compared to those who did not cheat, even when they were paid extra to recall the moral rules accurately.32 Language euphemisms can play a role here, as people use linguistic metaphors that dampen the ethical implications of their decisions. Here is how psychologists Ann Tenbrunsel and David Messick explain this: “We engage in ‘aggressive’ accounting practices, not illegal ones. There may be some ‘externalities’ associated with a strategy, not harmful to others or the environment. We have ‘collateral damage’ in military campaigns, not civilian deaths.”33

Incremental processes also matter. People are like live frogs placed in a pot of cold water. When the fire is turned on, the water slowly begins to heat, so slowly that they do not even notice it begin to boil. It is often the same with unethical behavior; a sudden and strong form of unethical conduct will stand out, while gradual and incremental shifts toward more serious misconduct go unnoticed.

When it comes to law and morality, social science provides several key takeaways. First, the law’s influence on human conduct is not simply a matter of amoral rational choice or even amoral irrational choice. It is deeply ingrained in the way people deliberate about, intuitively respond to, or repress morality. Clearly, people’s personal morals, values, and traits directly impact how people respond to the law. As Bar-Ilan University law professor Yuval Feldman explains in his book The Law of Good People, for law to improve behavior it must address morality, and to do so the law must make it impossible for people to feel moral when breaking the law.77 A second core insight is that the law works best when it is aligned with the morals people already have or when it can convince people that it provides the only moral route forward. Inversely, legal rules that seek to prevent people from engaging in behavior that is widely perceived to be morally acceptable are almost destined to fail. At the same time, the law must recognize that people have only a limited capacity for ethical reasoning, and that they may not be able to weigh the morality of violating rules, either before or after the fact. To overcome this, authorities must use insights from behavioral ethics to nudge people toward engaging in more deliberate, ethical decision-making. The final insight concerns people who exhibit serious, clinically diagnosed psychiatric disorders or high levels of callous-unemotional or psy...

Civil obedience is a vital part of the behavioral code, a sort of failsafe option the law can rely on when all other mechanisms we have discussed so far are ineffective. Vice versa, civil disobedience is like a canary in the coal mine and may signal that the law has lost its way and no longer serves legitimate interests.

We found, for instance, that personality mattered: more honest and humble people reported more of a duty to obey the law. We saw that people who were more engaged with moral issues felt more obligated to obey the law, as were people with a more conservative political orientation.2 Perhaps most illuminating, in a study of adolescents and their parents, we found that when parents felt more of a duty to obey the law, so did their children.3 From these later findings, we began to see that people’s civil obedience, their sense of duty to obey the law, may be something they learn and get socialized into.

laws?” A fascinating pattern emerged in the data. The researchers found that younger children tend to see rules as specific no-no’s that forbid certain behaviors. Young children obey rules because of their deference to authorities in power and because they simply don’t want to be punished. They have what researchers call an obedience and punishment orientation to rules. And because younger children are so afraid of being punished, incentives and punishments are crucial for changing their misbehavior. If you want to prevent young children from violating rules, incentives and punishments certainly can help. But as we age from childhood into adolescence, this orientation starts to change. With cognitive development, social skill development, and experience, we begin to obey rules less and less out of a fear of being punished. Our thinking shifts from an “obedience and punishment” perspective to a “law and order” perspective. Adolescents in particular begin to think that rather than simply prohibit certain behaviors, rules are intended to guide “good” behavior and prevent disorder.

In other words, people’s compliance rests more on whether they feel a duty to obey the law than it does on punishment. He then analyzed how people’s sense of duty to obey the law is related to how people perceive the justice system. He found that people’s perceptions of the justice system’s fairness and justness shapes their felt obligation to obey the law and thus their compliance. The more people felt the system was fair and just, the more they felt it was legitimate, and the more they felt it was legitimate, the more they felt obligated to obey the law. Tyler’s

His first conclusion was that authorities need to allow citizens to have a voice in proceedings and decision-making. Even if our input doesn’t change the outcome of our legal proceedings, our participation enhances our perceptions of procedural justice. Second, authorities must treat people honestly and not betray their trust. Third, authorities can enhance procedural justice through treating citizens respectfully. Finally, authorities must maintain neutrality, which requires lawmakers, enforcement officials, and judges to treat citizens equally, impartially, and without being swayed by personal opinions.6 When

break the law. Scholars in a wide variety of fields have uncovered very similar findings. One study of American soldiers stationed in Iraq and police officers in a large metropolitan department found that the more these soldiers and officers saw their organizations as procedurally fair, the more they saw them as legitimate, the more they felt a duty to obey their rules, and the more likely they were to comply with them.8 Another study, of Danish farmers, found that as compared to factors like the threat of punishment, awareness of legal rules, capacity to comply, and the costs of compliance, farmers’ perceived duty to obey the law was one of the strongest predictors of their compliance with environmental regulations.9

The only problem is that virtually all of these studies are correlational. And as the saying goes, correlation does not equate to causation.12 Fortunately, some experimental studies offer causal evidence. Take, for instance, the work of ed Maguire, a criminologist at Arizona State University, and his colleagues, who recorded videos of a simulated traffic stop. They then randomly assigned 266 people to watch one of three versions of the video in which the only variation was how the officer communicated with the driver: positively (procedurally just), negatively (procedurally unjust), or neutrally (neither just nor unjust). Then they asked people how much they would be willing to cooperate with the officer, how much they feel obligated to obey the officer, and how much they trust the officer. Maguire and his colleagues found clear evidence that the way a police officer treats people during an encounter influences all three outcomes: the extent to which people are willing to cooperate with the officer, feel obligated to obey the officer, and report trusting the officer. When people watched the procedurally just encounter, they were more likely to trust the officer and to both cooperate and obey. That finding suggests that even vicarious experiences, such as watching someone else have a just and fair traffic stop interaction with an officer, impact us.

There we have it. People with a strong sense of civil obedience, a strong sense of duty to obey the law, will be more likely to follow legal rules. They will do so even when there is limited enforcement, even when others break the law, and even when they themselves do not necessarily agree with the law. Procedural fairness is a vital precondition for civil obedience.