INTRODUCTION
Proprioception and Behavioral Biology
Proprioception
Behavioral Biology
THE FUNCTION OF LAW
Law as Lever
And the fulcrum, upon which the lever of the law rests, and against which it pushes to effect a change of conduct, is the pattern of the conduct of the law. Jones, Short-Time Rationality and the Lever of Law: Behavioral Economics Meets Behavioral Biology, 95 Nw.
Limitations
Is the behavior currently resting on the top of a behavioral hill, indicating that it can easily move in different directions? And this in turn depends on the behavioral model that influences our thinking at that moment.
Strengths
But these very different functions of the law are best seen as varying in degree, not as in kind. Second, the law as lever metaphor reminds us that the success of the law's intervention always depends on subsequent, corresponding human action. We pass laws to change human behavior in ways that will help achieve the desired results, whether or not the change in behavior was (as in robbery) the goal of the law.
Third, the image of law as a lever encourages us to think meaningfully about behavioral resistance to the efforts of law. Fourth, and most important for present purposes, the image of law as a lever emphasizes what is in fact generally and unfortunately ignored: the necessary existence and critical importance of a strong pattern of behavior. Historically, we have focused our attention on the means of the law and the resultant results.
We tend to think of the tools of the law as carrots and sticks, luring or threatening. The law as a lever metaphor thus makes it abundantly clear that efforts to improve the effectiveness of the law necessarily require efforts to improve the behavioral models on which the law rests.
Building Solid Fulcra
THE FORM OF LAW
Up to this point, we have considered the role that behavioral biology plays in developing and enhancing a sense of right's function, in line with the ultimate goal of developing a proprioceptive sense of right. That is, we can step back and reexamine the architectural structure of law, paying particular attention to the constraints of both process and design space under which legal regimes are situated. Most people who are challenged to describe or reproduce the variations in the shapes of the wine glasses can make a serviceable effort.
Importantly, however, that effort generally depends on a holistic assessment of the various shapes of wine glasses that is impressionistic, unsystematic, and based primarily on attention to the black space—the silhouette of the glasses themselves. Focusing on the design space without wine glasses not only reveals something about that space, but also reveals something entirely different and important about the contours of the glasses themselves. Focusing on the design space without wine glasses, a new coherence, a single organizing principle and a new understanding of the contours of the glasses are immediately discernible.
I believe that in a similar way, examining the empty design space around existing legislation can provide a new and different sense of structure and. I will refer to this empty design space as the "lawless" or "inverse law". My argument is this: in order to have the clearest proprioceptive sense of where the law is and where it may be going at any given time, it is very important to have a clear sense of where the law is not and why.
Design Space and Decision Trees
As with the wine glasses, discovering patterns in the non-law will make the patterns in the law easier to observe. This is of course often completely inconsistent with the facts, as the engineering perspective on the design space makes clear. The design space available for the opposite of a thing (or a non-thing) completely overwhelms the design space for the thing itself. And an important first step in exploring non-laws is therefore to abandon any intuition of symmetry, complementarity, or even proportionality. .
To begin to consider more systematically the general space of law design (or, put another way, the set of all possible legal variations), it strikes me that we can usefully divide the issues in this way. The design space for the legal body can be represented (and simplified) as a broad decision tree consisting of four main elements: Topics, Content, Tools, and Effort. All possible legal methods by which we may attempt to achieve those goals.
A simplified illustration of a small portion of the general projection space just described appears as Figure 6. Seen from this perspective, the general projection space of the law is, like galaxies, more interstitial void than substance.
Non-Law
But as we seek to sharpen our deep-structure, proprioceptive sense of the shape of law, we must ask whether there are other forces at work, as yet unstudied, that might help us discern patterns and probabilities in non-law. to better understand, and therefore to better distinguish the patterns in the law itself. Redundant legislation describes the set of all possible legal features that might address topics about which we do care, but about which existing behavior already tends, even in the absence of legal intervention, to suit our normative preferences. Unnecessary law thus prunes otherwise possible legal features from the Content level of the decision tree.
Toothless law describes the set of all the possible legal methods to try to effect change, in an attempt to bring behavior on certain topics into line with our normative preferences, which is completely unpromising. Toothless law thus prunes otherwise possible legal features from the Tools level of the decision tree. Useless law describes the set of all possible legal features that can address things about which we care, and about which behavior does not already conform to our normative preferences, but about which we are virtually powerless to effect change with the methods of law.
Useless law therefore prunes otherwise possible legal features from the effort level in the decision tree. Think, for example that no law requiring an adult in a situation where a group of children is at risk to save the most economically promising or socially useful children before his or her own will have much effect—regardless of the legal consequences for failure to do so, and even assuming that the statutory preferred children were immediately recognizable.
Biolegal History
Instead, I argue that many features of law are the result of the way evolutionary processes have built the human brain. To put this another way, the legal features of any legal system will not only reflect the sorting and ordering of social and economic processes that lead to legal change, but will also reflect specific features of the evolved, species-typical design of the human brain. What this perspective leads to is a subtle but important reorientation of the way we think about law.
When we think about how evolutionary processes produce species, it is common to call this a design process. That is to say, much of what we consider pointless, unnecessary, toothless, and useless has been effectively shielded by the historical biological processes that caused the brain to be designed the way it is. But it is to say that the brain and its characteristics inevitably reflect evolutionary processes.
However, it must be said that these legal features exist within the somewhat flexible but nevertheless restrictive boundaries shaped by biological evolution. And this means that any assumption that law only reflects social, political, religious and economic developments is too narrow and archaic.
Behavioral Biology and the Form of Law
SUMMARY AND ATTENDANT ISSUES
Summary
Design space images and decision trees for law can help increase shape awareness. One way to achieve this new view of the form of law I have proposed is to focus on non-law or inverse law. And one way to do this is to think about the ways in which evolutionary analysis, with its biobehavioral perspective, clarifies which branches of the decision tree evolutionary processes have cut off, leaving us with non-random patterns of non-law that are meaningless, unnecessary, toothless or useless.
We gain a more precise and contextualized view of the smallness of the law, rethinking empire as filigree. And we get a better sense of the likelihood that modern legal systems would exhibit the features they do, rather than entirely different features that are supposedly more susceptible (even infinitely susceptible) to arbitrary cultural variation. One of the things I suggest that lies in all this is a fundamental reorientation in the way we think about the relationship between law and biology.
Each of the remaining knowledge domains integrates with human experience at a different, more lateral and simultaneous level. Using biology (as one of several disciplines) to hone a proprioceptive sense of justice is one of these methods.
Issues and Clarifications
CONCLUSION
Considering the two paradoxes with which I opened – the lack of an independent behavioral model of law and the historical disinterest in brain design – I want to make clear to us three main themes. First, behavioral biology is essential for an understanding of human behavior relevant to law. And solid behavioral models must integrate social science perspectives, from sociology, economics and the like, with life science perspectives, such as.
The study of the biology of behavior helps us to increase the stability of the model of behavior on which the law rests so precariously. Therefore, the maximum effectiveness of the law requires (among many other things, obviously) the study of evolutionary processes and their effects on the biology of human behavior. To get a sense of where our law is, how it got here, and where it is going, we need to have a better understanding of the processes that got the law here and the constraints those processes impose on the future.
Behavioral biology helps reveal a coherent sense of the deep structure of human legal systems, in part by providing a window into nonlaws—a window into the ways in which evolutionary processes have contributed significantly to constraining and winnowing the design space of law. straight . And behavioral biology does this by providing information about the design of the human brain that is and can be useful in understanding both the function and form of laws.
