45 Pages Posted: 23 Jan 2017 Last revised: 29 Jun 2017
Date Written: January 20, 2017
People often conflate three measurably distinct legal phenomena: laws, or formal legal rules; people’s beliefs about laws; and people’s aspirations for what laws should be. This paper argues that these phenomena differ from one another both descriptively (because each can and should be measured in different ways, and because those measures show that they diverge from one another), and in their prescriptive implications (in the sense that each bears on different normative theories of what law ought to be doing). Casual discussion of “the law” can easily obscure that “the law” exists in these multiple aspects, each of which has importantly distinct theoretical and practical implications, and each of which deserves its own form of empirical measurement. Depending on why they care about the law, different theorists and thinkers should care more about some of these aspects than others; and in measuring different aspects of “the law,” empiricists should be careful to choose tools that are best-suited to those measurements.
This paper proposes a formalization of these distinctions through the use of what it calls the “legal triangle” model, which presents a way of distinguishing between (1) formal legal rules, (2) subjective legal beliefs, and (3) normative legal aspirations, and of conceiving of the relationships between each of these aspects. The structure of the model helps ensure that distinctive aspects of the law are treated distinctively; facilitates separate empirical measures for what should often be treated as independent variables; and helps in constructing empirical measures that are directly relevant to important theories of what the law does and ought to do.
After presenting the model, the paper presents a simple empirical study that builds on the model to generate empirical data. The survey, administered to 868 participants in six states about ten state laws, was structured to separately measure (1) the recorded law in the state, (2) participants’ subjective belief about that law in their state, and (3) participants’ normative aspirations for the law. It finds routine divergence between formal legal rules, subjective beliefs, and normative aspirations. Furthermore, it finds that while rules, beliefs and aspirations diverge, the relationships between them are partially predictable. Most strikingly, beliefs and aspirations tend to covary, meaning that participants tended to believe that the law already is whatever they think it should be, and (in corollary) that participants tend to think the law should be whatever they believe it already is. In some cases, this effect is strong enough that people’s aspirations become more predictive of what they believe the law to be than the legal rules actually in force.
Keywords: Perception of Law, Motivated Cognition, Biased Assimilation, Fake News, Wishful Thinking, Cognitive Dissonance, Legal Knowledge, Mistaken Belief, Behavioral Law and Economics, Access to Justice, Death Penalty, Abortion Waiting Period, Handgun Waiting Period, Texting and Driving, State Income Tax
JEL Classification: K00, K1, K10, K11, K12, K13, K14, K19, K31, K32, K34, K40, K41, K42
Suggested Citation: Suggested Citation
Rowell, Arden, Law, Belief and Aspiration (January 20, 2017). Available at SSRN: https://ssrn.com/abstract=2903049