Behavioural economics builds on psychology rather than on sociology, and on cognitive science rather than the science of culture. The same is true for new behavioural scholarship in the legal discipline, whether this is referred to as ‘behavioural law and economics’ or ‘law and the behavioural sciences’. The result of a one-sided definition of a more realist research agenda in legal scholarship is an impoverished understanding of the ‘social’. In Thaler and Sunstein’s famous concept of nudging, social conformity appears as a property of the individual, which can be instrumentalized by social nudges. More generally, the cognitive strand of behavioural economics lends itself to strategies of regulatory ‘debiasing’, which suggests that it is possible to get down to pure preferences that are free from any distortions. While this approach neglects the endogeneity, or social contingency, of individual preferences, the social strand of behavioural economics is explicitly concerned with the dynamics of social interaction, or the effects of social interdependence. However, both strands of behavioural economics are still higher on methodological individualism, naturalism or positivism and lower on institutionalism, culturalism or constructivism than a genuinely sociological approach. More specifically, their understanding of the ‘social’ does not sufficiently account for the social embeddedness of both rational and irrational economic action. What is more, behavioural economics also lacks the means to reflect on the link between science and politics, which includes the question of why different models of economic man are attractive at different points in time. The conceptual move from rational to behavioural economic man bears distinctive policy implications, which are in line with the transformation of welfare capitalism towards ‘less state’ and ‘more market’. While the overall direction of this project gets blurred in Thaler and Sunstein’s branding of ‘libertarian paternalism’, it is evident in the adaptation of consumer policies, which proceeds under the imperative of market conformity. Accordingly, a strategy of nudging does not put into question the wider institutional context but offers a technical solution to what is defined as a problem of individual behavioural rigidities and cognitive biases in the market environment.
Sabine Frerichs and Rick James
According to the economic analysis of law, an efficient property regime is premised on the universality, the exclusivity, and the transferability of property rights. Ideally then, every (legal) person can enjoy the status of an owner and any (economic) resource can become private property; ownership titles could be bought and sold across national jurisdictions and would ultimately be respected everywhere in the world. Throughout history, property regimes indeed seem to have moved towards this ideal. However, this conception of private property is far less natural than it seems, and not without problems. Instead, the institution of property rights is inherently connected with the development of capitalist society, and it reflects the latter’s underlying tensions. The starting point for a sociological account of property rights is to conceive them as a social relation, or a relation of power, which includes (other) owners and non-owners as well as the state as a ‘third party’. In this chapter, the authors build on the work of Karl Polanyi and John R. Commons to suggest that the property regime of the market society relies both on the reification of property (identifying it with the thing owned) and the commodification of the right of ownership (turning it into a marketable commodity). Looking back, the authors retrace how the concept of property changed with the advent of modern capitalism, and how it evolved in the transition from agricultural to industrial capitalism. Looking into the future, they also address the challenges of today’s informational capitalism, which is characterized by the commodification of knowledge. Based on James’s work, the authors introduce the ‘correlative rights doctrine’ as an alternative to the remnant ‘property rights absolutism’ in the field of intellectual property law, but also beyond. With cross-border conflicts in who owns what having proliferated in the global age, investigations into the relational quality of property rights also matter for international lawyers, who are confronted with new subjects and objects of property, from international investment law to intellectual property law.