In lieu of an abstract, here is a brief excerpt of the content:

Chapter 16 Psychological Jurisprudence THE PROCESS-BASED strategy of regulation that we advocate is one aspect of a more general strategy of psychological jurisprudence. Psychologicaljurisprudence is the effort to build our system oflaw and regulation on an accurate model of the psychology of the person. Psychological jurisprudence has many aspects (see Tyler and Darley 2000), but our comments here focus on issues of human motivation.1 Psychological jurisprudence provides a distinctly empirical, rather than normative, perspective on the problems presented by the law. According to this view, our conception ofthe person shouldbe based on empirical research about human motivation, such as the research outlined in this book. Like psychology in general, the application of psychology to jurisprudence is an effort to define human nature through systematic and scientific empirical study. Our long-term goal is to establish a role for empirical findings in shaping the law-that is, to create evidence-based legal policies. Like the proponents of the earlier legal realism movement, we argue that the roots of effective legal doctrine must lie in an accurate understanding of the nature of the social world and ofthe people within that world. Psychologicaljurisprudence carries this premise further by taking advantage of the methodological skills of psychology to establish that knowledge. Deterrence: The Standard Approach to Social Control When we consider possible motivations for people's law-related behavior , whether public or private, we can draw upon the extensive socialpsychological literature that explores the factors shaping people's behavior. HistOrically, those concerned with producing compliance with the law have focused on the manipulation of the environment through changes in rewards and sanctions. Social psychologists suggest that this is only one of several possible ways to motivate behavior. 210 Trust in the Law Those legal authorities who are concerned withproducing compliant behavior among members of the public have primarily taken the approach of shaping environmental contingencies in particular ways, that is, by encouraging behaviors that manipulate the impact of anticipated gains or losses. These manipulations are based on calculations not only of the likelihood of potential gains and losses but of their expected utility (the amount to be gained or lost). This approach is the classical subjective expected utility theory. Taken together, these calculations tell people whether engaging in some action is likely to be beneficial to their self-interest. The idea that people's behavior with respect to the law is shaped by their calculations of expected gain and loss is the core premise of the rational choice theory (Blumstein,Cohen, and Nagin 1978). Withinlegal circles , the model is referred to as the "deterrence" or "social control" model ofbehavior, and it seems to us thatitis this model of the person that dominates law and public policy at this time. It is the model on which legislators and regulators seem to rely when they are contemplating statutory changes. To regulate behavior, the rational choice model focuses on adjusting criminal sanctions to the needed level so that the expected losses associated with lawbreaking will lessen the likelihood that people will break the law. According to this model, the judgment that those engaged in regulation must make is deciding which acts should be prevented, and then specifying penalties, whether threats of physical violence, fines, or prison terms, that are severe enough to discourage the prohibited behavior. Police officers, for example, gain compliance by calibrating their displays offorce-from the threat of ticketing and arrest to the possibility of injury from the use of nightsticks and mace, and ultimately to their capacity to kill a person with their guns. What if the prohibited behavior continues to be committed with unacceptable frequency? There is an easy remedy within this model: if the observed rate of criminal behavior is thought to be too high, the remedy is to increase the sanctions threatened or delivered-that is, to increase the expected disutility ofthe prohibited actions so thatpeoplewho would otherwise commit the behavior will be deterred. The task is to adjust the magnitude of the punishment to an appropriate level. The social control model is the primary model of human motivation that has guided the recent efforts of the American legal system, both the police and the courts, to manage society. The application of this model of human motivation to regulation efforts has had dramatic effects on the nature of American society. Consider the case of the American prison population (Haney and Zimbardo 1998). Because of the belief that crime is deterred by the threat or experience of punishment, a...

Share