“The ground-breaking nature and the potential impact of the research project are clear.” “The panel considered the proposal to be majestic but suitably conceptually-nuanced in its path-breaking efforts to found a field of behavioural legal studies.” These are a few of the accolades that can be found in the proposal’s European Research Council (ERC) review report. The reviewers were full of praise for the originality of the theme. According to Benjamin van Rooij, the research proposal is in fact “completely novel” in terms of legal research. “The research is doable and socially oriented, while at the same time ambitious and original. I think that is what triggered them.”
Were you expecting the application to be honoured?
“No. An ERC Consolidator Grant in the social sciences, and certainly one in jurisprudence, is really difficult to come by. The fact that everything has worked out still seems a bit unreal. When I first got the email from the ERC, it didn’t exactly register, although it should be said that it was quite vaguely worded. It didn’t really dawn on me until people started expressing their congratulations. The importance of this funding is immense – that much is now clear.”
What was the application process like?
“I started the application last December - after much vacillation - and I submitted it a month later. I elaborated the idea based on my research into law and behaviour. In the US, I spoke with public prosecutors, market supervisory authorities, and corporate lawyers. They all indicated that one aim of their work was to influence behaviour, thereby contributing to improved safety for society, the markets, or their own companies. On follow-up, however, it appeared that few of them had any concrete ideas. I realised that their thoughts barely reflected what we know about law and behaviour based on the empirical sciences. I then worked out those observations on the lack of knowledge about behaviour and how it can be influenced to come up with this research proposal.”
What exactly are you going to research?
“I am going to research what legal experts involved in bringing about changes in behaviour think is the best way to go about doing so. I will compare their assumptions about behaviour with what we already know based on scholarship. This will allow me to ascertain how correct the behavioural assumptions of legal experts are, and how they need to be modified.”
You even refer to a “behavioural revolution in the field of law” …
“My research aims to shed more light on the ex-ante function of the law. By this,I mean the law’s function as an influencer of future behaviour. Legal experts have been trained to approach everything from an ex-post perspective, i.e. by uncovering the appropriate rules and procedures for dealing with past behaviour.
The ex-ante function requires an entirely different approach. Most people, for instance, are unaware of all applicable legal rules. That is not really much of a problem from an ex-post perspective since all the appropriate rules can be determined after the fact by allowing the legal process to take its course. If, however, the law is to direct future behaviour, people need to know the rules.”
Could you give an example?
“Take the case of Maria Sharapova, who was condemned for a doping violation involving a substance that had been added to the blacklist one month prior to her conviction. She herself claims to have been unaware of the new addition. This is, of course, still no excuse - even assuming she was telling the truth and that she was genuinely unaware. From a practical point of view, however, that particular doping rule could only have influenced her behaviour if she was aware of it.
With this research, I would like to construct a behavioural theory for the law, a behavioural jurisprudence that corrects erroneous impressions of behaviour within the field of law. The research will thereby attempt to encourage a behavioural revolution in the field of law like the one brought about by the study of behavioural economics in the field of classical economics.”
What is your timeline?
“The ERC has given me five years to produce results. There will be a book that summarises the state of current scholarship. Three PhD candidates in the US, the EU, and China will perform empirical research into the behavioural assumptions held by legal experts. At the conclusion of the project, a book will be published that explains behavioural jurisprudence based on both the empirical knowledge gained about legal experts and the present state of scholarship on law and behaviour.”
Will the project have a follow-up up in the curriculum?
“All Bachelor’s students take my (required) course in Law and Behaviour. The topics of behaviour and integrity in the law are gaining in importance and receiving growing attention, also in the professional field. The influence of behaviour plays an important role in comparatively new legal functions such as compliance manager or market authority. How do you reconcile the law with the way people act within an organisation? My research, therefore, fits in flawlessly with the developments in the legal field.”
About the Consolidator Grant
The ERC Consolidator Grant is intended for researchers who have been accorded a PhD within the past seven to twelve years. The subsidy allows them to establish themselves as independent research leaders.
Read more about Benjamin van Rooij’s ERC Consolidator Grant.