A vital function of law is to reduce misconduct and damaging behavior. In order to do so, law needs to somehow come to shape human and organisational behavior. This requires a different approach to law and behavior, an approach that does not look solely at what is the fair and legally sound way to respond to misconduct after it has happened (ex-post), but also how legal rules can shape behavior in the future and thus steer it before it happens (ex-ante). This paper discusses what body of existing empirical knowledge exists to support the law’s ex-ante function. It also analyses what biases in traditional ex-post legal thinking obstruct a successful application of the ex-ante empirical knowledge. Doing so it argues for a behavioral jurisprudence that makes the ex-ante function of law central and that corrects biases and flawed assumptions in legal thinking and education.
van Rooij, Benjamin, Behavioral Jurisprudence: The Quest for Knowledge About the Ex-ante Function of Law and Behavior (March 29, 2020), Jerusalem Review of Legal Studies (2020 forthcoming); UC Irvine School of Law Research Paper No 2020-20; Amsterdam Law School Research Paper No 2020-24; General Subserie Research Paper No 2020-06.