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

by Benjamin van Rooij

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.