The connection between law and mind sciences
Director of the Project on Law and Mind Sciences at Harvard Law School, Professor Jon Hanson has long combined social psychology, economics, history and law in his scholarship. After PLMS hosted several conferences featuring leading mind scientists and legal scholars, Hanson collected the work of many of the contributors in a book he edited, “Ideology, Psychology, and Law” (Oxford University Press, 2011).
In the following Q&A, he speaks about the new book, the connection between law and mind sciences, and his own work in a field that has grown rapidly over the past 20 years.
What sparked your interest in the study of mind sciences and the law?
My interest has evolved through several stages. Although I studied economics in college, I did so with special interest in health care policy, where the life-and-death decisions have little in common with the consumption choices imagined in neoclassical economics. Purchasing an appendectomy through insurance has little in common with buying a fruit at the market.
After college, I spent a year studying the provision of neonatal intensive care in Britain’s National Health Service, attending weekly rounds with neonatologists at London hospitals, meeting with pediatricians in rural English hospitals, interviewing nurses who were providing daily care for the infants—some of whom were not viable—and speaking with parents about the profound challenges they were confronting. Those experiences strengthened my doubts regarding the real-world relevance of basic economic models for certain types of decisions.
In law school, I studied law and economics but tended to focus on informational problems and externalities that had been given short shrift by some legal economists at the time. After attending a talk by, and then meeting with, the late cognitive psychologist Amos Tversky, I became an early fan of the nascent behavioral economics movement.
It wasn’t, however, until I spent a couple of years immersed in cigarette-industry documents in the early and mid-1990s that I felt the need to make a clean break from the law’s implied psychological models and turn to the mind sciences for a more realistic alternative.
What was it about the cigarette documents that had that effect?
Well, they made clear that the tobacco industry articulated two views of their consumers—an inaccurate public portrayal and a more accurate private view.
The first, which the industry conveyed to their consumers and to lawmakers, was of smokers who are independent, rational and deliberate. Smokers smoke cigarettes because they choose to, because smoking makes them happier, even considering the risks. The industry thus gave consumers a flattering view of themselves as autonomous, liberated actors while assuring would-be regulators that there was no need to be concerned about the harmful consequences of smoking. Smokers were, after all, just getting what they wanted.
The second view of the consumer, which was evident in the industry’s internal documents, was of consumers as irrational, malleable and manipulable. The industry’s confidential marketing strategy documents, for instance, made clear that the manufacturers theorized and experimented to discover how to target, persuade, lure, and chemically hook young consumers to take up and maintain the smoking habit. That internal understanding of consumers had nothing in common with the industry’s external portrayals.
I came to the realization that, unfortunately, the latter view of the human animal is far more accurate and, furthermore, that failure to understand the actual forces behind human behavior may be contributing to injustice.
How did that realization influence your research?
In the late 1990s, I put my writing down and devoted a couple of years to learning what I could about the mind sciences—social psychology, social cognition, cognitive neuroscience and the like. Those fields, coincidentally, were blossoming with new theories, new methodologies, and new findings and insights, most of which created challenges to the fundamental assumptions in law and legal theory.
What were some of those insights?
To keep things simple, I’ll boil them down to two big ones. First, mind scientists had learned that most people in Western cultures operate with a naive and common-sensical model of human psychology that presumes that an individual’s actions reflect a stable personality or disposition and little else. From that perspective, people are presumed to be in control of, and responsible for, their behavior and its consequences.
By the way, that’s the same model of human behavior that is employed in law and conventional legal theory. And it’s the same model that the tobacco industry actively promoted.
The second big insight was that that model of human behavior is fundamentally wrong. People are moved less by a stable disposition and more by internal and external forces that generally go unnoticed in our causal stories. The errors go beyond our causal assessments of other people’s behavior; we confuse and deceive even ourselves, believing our own reasons, when social science reveals those reasons often turn out to be mere confabulations.
What does that mean for the law?
Exactly. That’s the big question. My briefest answer is: a lot. The book is one place where the contributors and I begin to sketch some of the answers.
Given the large gap between what the law assumes and what the mind sciences have shown to be true, my initial goal has been to understand the breadth and contours of that gap and to develop a better understanding of the psychological and contextual forces behind human behavior. I have resisted the strong urge to focus on only those psychological tendencies that can lead to straightforward but narrow implications for law.
Having said that, abandoning the familiar, if wrong, conception of human behavior is daunting and unsettling; it calls for establishing new knowledge structures and being open to some humbling truths about ourselves and some uncomfortable truths about our justice system.
I expect that several generations of lawmakers, legal academics and lawyers will be grappling with the implications of what mind scientists are discovering about human behavior. Indeed, they will have to do so if we are ever going to find meaningful solutions to many of our thorniest policy challenges.