Behavioural Analysis of Criminal Law: A Survey

Behavioural analysis of criminal law exploits social science methodologies (behavioural economics, psychology and even sociology) to explore the effects of criminal law norms on criminals, judges, juries and other decision-makers, to determine the optimal type and size of criminal sanctions, to identify the optimal design of the enforcement system and the rules of evidence. Behavioural analysis of criminal law often addresses, criticises, or complements the findings of the traditional economic tools by using social sciences findings concerning the content of individuals’ beliefs, and the content of their preferences. As criminals, policepersons, victims of crime, judges, and other relevant agents form beliefs concerning probability of detection and conviction, and those affect the propensity to commit crimes, enforcement policy, evidence law and procedural law are as relevant to the understanding of the effects of criminal law as the substantive doctrines of criminal law itself. Hence both the economic and the behavioural approaches to the analysis of criminal law challenge the traditional doctrinal distinctions between criminal law, criminal procedure and evidence and, last, the enforcement policy. The behavioural approach to criminal law is founded on the research of behavioural economists, psychologists and sociologists.1 Unlike traditional neo-classical economics, the behavioural perspective is eclectic rather than unitary; it is composed of various psychological findings including cognitive biases and their effects, prospect theory, the effects