A Belief Change Theory of Expressive Law

41 Pages Posted: 27 Mar 2009

See all articles by Alex C. Geisinger

Alex C. Geisinger

Drexel University Thomas R. Kline School of Law

Date Written: March, 27 2009

Abstract

For decades law and economics has been well-served by a behavioral model that treats individual preferences as exogenous and conceives of law as affecting behavior only by increasing or decreasing the cost of undertaking a regulated activity. Although somewhat parsimonious, this behavioral theory has provided an effective model for studying the effects of law on behavior. More recently, however, scholars have begun to note the limitations of the existing behavioral theory. As a result, many are now considering how law may affect behavior in ways beyond the traditional costs associated with direct sanctions. These scholars note that laws affect behavior not only by making the behavior more costly, but also by affecting social norms and, consequently, by changing an individual's preferences for undertaking particular acts. According to these social norms theorists, laws can change the social understanding of a particular activity and thus influence what behaviors will or will not be subject to social sanctions. While scholars have uncovered a wealth of activities that are affected by norms, however, an overall theory of how law affects norms has proven more elusive.

The creation of a comprehensive theory that captures law's effect on norms and individual preference is especially difficult because such a theory must consider the way in which law is mediated by the complex process of human emotion and cognition. In particular, this complexity raises concerns about the ability of a comprehensive theory to be used in a positive manner to predict how law will affect norms and preference. Until a theory that can adequately navigate this complexity is created, many scholars will continue to find a parsimonious model that has predictive value to be superior to existing expressive theories which do not.

This article develops a positive "belief change" theory of law's effect on social norms and preference. Specifically, it identifies a process by which law impacts norms by changing the certainty of one's beliefs about the outcomes of a given activity. The article also explains how such effects can be adequately modeled to provide a positive theory of how law affects norms and preference. To help the reader better understand the "belief change" theory, however, the article first provides a general introduction to law, norms, and the concept of expressive law, and outlines some of the major debates that confront the field of behavioral law and economics.

Keywords: Norms, Social Norms, Rational choice, Social Psychology, Cognitive Psychology, Expressive Law

Suggested Citation

Geisinger, Alex C., A Belief Change Theory of Expressive Law (March, 27 2009). Iowa Law Review, Vol. 88, No. 1, 2002; Drexel College of Law Research Paper No. 2009-A-06. Available at SSRN: https://ssrn.com/abstract=1369311

Alex C. Geisinger (Contact Author)

Drexel University Thomas R. Kline School of Law ( email )

3320 Market Street
Philadelphia, PA 19104
United States
215-571-4792 (Phone)

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