psychology, of which the most notable are conditioning and cognitive (or
social) learning. Neo-classical economics also takes this view of human
behaviour.
520
This approach is sometimes labelled the rational actor model.
Where it is applied to law enforcement it is also called the command and
control model, and punishment is obviously the major deterrence.
Put broadly, humans like to obtain pleasure and avoid pain (although what they
like and dislike will vary
from person to person). Therefore they rationally
calculate how to do this. In consequence they will behave in ways that give
them pleasure and avoid pain. When faced with a decision, such as a decision
to obey a law or not, they look at the two outcomes - what will happen if they
obey, and what will happen if they do not obey. Then they choose the better
outcome.
This type of reasoning is arguably the basis of decisions in many areas.
Economists claim that it is the basis of market forces that drive competition in
the market place. However, scholars from the
law and economics school
extend this view of behaviour beyond the market into considerations about
compliance with laws in many areas, and indeed into other areas of behaviour
as well.
521
They argue that the behavioural laws which underlie economics also
determine the effect that some civil laws have, in that they apply by analogy
522
to activities.
This is how it allegedly works. Rules created by law “establish implicit prices
for different kinds of behaviour, and the consequences of those rules can be
analysed as the response to those implicit prices”.
523
Prices stem from the fact
that obeying and not obeying law bring consequences. Not obeying the law
possibly incurs punishment while obeying the law frees the actor from some
restriction or brings in some benefit. Therefore the price or cost of compliance
is to forgo the consequences of not complying.
This approach has been used to analyse activities
as diverse as “drug
addiction, sexual acts, surrogate motherhood, rescue at sea, religious
observances,”
524
“trust,” “status,”
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“crime, racial discrimination, marriage
___________________
520
For a general discussion see Hicks (1980)
521
Levitt, Steven D; Dubner, Stephen J (2005)
522
See Posner (1992), Trebilcock (1997) A and B, Campbell (1996); McGuinness
(1994) (arguing that there should be more economic analysis); Gunningham (1992);
Goodhart (1997), Ulen (1997).
523
Cooter (1988) p11
524
Posner (1992) p xix. In explanation of this broader application of economic
reasoning Posner says at p 3: “[E]conomics is the science of rational choice in the
world - our world - in which resources are limited in relation to human wants. The
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