In this chapter we outline a history of various strands of behavioural research pertaining to consumer behaviour. We first look at the current field of consumer behaviour research qua a sub-discipline of marketing. This discussion reveals the multidisciplinary nature of the field, which leads us next to the history of general trends in psychology that exert influences on many disciplines, and then to more specific developments in behavioural research at the intersection of economics and psychology. In the final section we review how these strands of behavioural research have been taken up by legal scholars at various points in history.
Michiru Nagatsu and Magdalena Małecka
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.
References to the ‘architecture’ of European Consumer Law entail the risk of whitewashing potential differences in the conceptual, methodological and normative underpinnings of this field of law. Behavioural analysis has gained remarkable attraction with policy-makers, but it also has also largely replaced socio-legal research which used to accompany the making of European Consumer Law during the first 25 years or so of its existence. These more traditional approaches of social sciences have developed models of behaviour which need to be reconciled with the analytical concepts of behavioral economics. However, the conceptual differences – or similarities – between socio-legal research and behavioural analysis are rarely discussed. After explaining the fundamental importance of models of human behaviour for consumer law, this chapter argues that these two approaches start from fundamentally opposite assumptions: while behavioural analysis is based on the functional rationality of the Homo oeconomicus with its focus on individual choice, socio-legal research roots are in the value rationality of the Homo sociologicus which instead draws attention to social embeddedness. Even if the starting points are different, the question remains whether both models are about to converge or whether their divergences prevail. Owing to the fundamental importance of those two behavioural models, the answer shapes the essential pillars of European Consumer Law’s architecture. It determines nothing less than the architectural style, more precisely whether that style contributes to a coherent, harmonious ensemble, or whether it looks bitty and scrappy.
During the past three to four decades the ‘correct’ comparative method has become the object of an intensive debate. This debate now also covers empirical methods that have started to ‘infiltrate’ comparative law ever since the turn of the twenty-first century. Behavioural analysis, however, has not yet come into the picture. The following chapter, therefore, explores how behavioural research can be put to comparative use and sheds light on recent attempts to do so. It concludes that combining comparative and behavioural insights may further our understanding of consumers’ needs and improve our ability to design legal responses. In particular, it may help to understand why legal systems are differently designed in different countries and why the same rules may trigger different reactions in different countries. The chapter, therefore, suggests that behavioural scientists and comparative lawyers should work closely together to better understand cross-cultural consumer behaviour and the complex relationship between consumer behaviour and consumer law.
Hans-W. Micklitz searches for the politics of behavioural economics of law. This implies a need to place behavioural law and economics into context – historically, politically, philosophically, theoretically and methodologically. The overall argument is that it is economic efficiency that stands predominantly behind behavioural law and economics, insinuates a value change away from the social and from the role of law, affects the autonomy of the individual and disconnects her from the society. Behavioural law and economics is more than a research tool; it is a normative theory if not a social theory. Therefore, the politics of behavioural law and economics can and should be read as a first attempt to formulate a critical theory on the behavioural analysis of law that reduces law to economic efficiency and cognitive psychology, forgetting about the sociology of law. Only an opening towards the society and the sociology of law – this is the conclusion – can demonstrate the added value of behavioural law and economics.
Edited by Hans-W. Micklitz, Anne-Lise Sibony and Fabrizio Esposito
This chapter addresses one of the most important questions for the methodology of human rights law, both as a social practice and as a scholarly discipline, namely how to interpret the provisions of human rights treaties, many of which are seemingly vague or open-ended as texts. The author defends the view that there is a proper methodology for legal interpretation, understood as giving specific and concrete meaning to those texts. Even if different scholars or different lawyers may sometimes end up defending differing interpretations, the interpretive activity of each of them can be assessed for the correctness of its methodology and ultimately also for the correctness of the answer arrived at.
Siobhan McInerney-Lankford examines ‘internal’ and ‘external’ challenges of human rights legal research. The first relates to the depth and critical quality of mainstream human rights legal research and the tendency of human rights lawyers to assume the validity of the norms underpinning human rights law. The second challenge relates to the breadth and orientation of human rights law, which often overlooks the impact and policy uptake of human rights norms. The chapter concludes by exploring the implications of these critiques for human rights legal methodology and the need to recognize and safeguard the distinct contributions of human rights discourse.
Hilde Bondevik and Inga Bostad
The chapter gives an introduction to the method of philosophical hermeneutics and the prejudicial character of understanding. We discuss how the concepts of hermeneutics can be used in the argumentation and interpretation of legal texts and human rights principles and treaties, in applied research, as well as in theoretical analyses of human rights issues. Hermeneutics finds favor with the field of human rights and in situations where we need to understand and communicate across different social groups and cultures. Referencing Gadamer, Benhabib and Nussbaum we seek to bridge the traditional gap between the humanities and legal science, which have often been regarded as two disciplines with distinctive theoretical and methodological approaches. The case of the ‘burqa bans’ or the ban on face covering will be applied as a case study.