Brief book review – The Behavioral Code: The Hidden Ways the Law Makes Us Better Or Worse

Benjamin van Rooij and Adam Fine, 2021, Yale University Press, 384 pages

Don’t think that The Behavioral Code: The Hidden Ways the Law Makes Us Better Or Worse is yet another popular science book that simply rides on the wave caused by Nudge. It is not. Or actually, it is, but not in the way that most Nudge-like books are. The book makes a significant contribution to the literature on regulatory governance and is a must-read for regulators—whether you are already using insights from the behavioural sciences in your regulatory practice or want to do so, or if you are sceptical about the whole nudge-buzz.

The Behavioral Code is a collaboration between Professors Benjamin van Rooij (University of Amsterdam) and Adam Fine (Arizona State University). Both are interested to understand why people obey the law. Both are critical of long-held assumptions by legal scholars and criminologists about why people do. And both are interested in how we can apply insights from behavioural sciences to draft and implement regulation that makes it easier for people to comply.

At this point you may wonder: So, what’s the difference with Nudge? Well, the difference is subtle and considerable at the same time. It is subtle when looking at their vantage points:

• Nudge takes as a starting point that the traditional neo-classical economic understanding of people as ‘rational’ and ‘utility maximizing’ beings doesn’t align well with how people behave when faced with complex decisions and uncertainty.
• The Behavioral Code takes as a starting point that the traditional ‘deterrence-orientation’ of much law and regulation (in short, the assumption that people comply because they fear the penalties or other consequences of non-compliance) doesn’t align well with people’s true compliance motivations.

However, this subtle difference (both question an assumed rationality) is considerable when considering its implications for the development and implementation of better regulation. The authors of Nudge argue that it should be easy (and fun) for people to make the choice that is in their own best interest (in terms of wealth, health, and happiness). This puts the onus on regulators (as ‘choice architects’) to only use nudges when this does not limit people’s freedom, when it is easy for people to understand they are being nudged, and when it is easy for people to avoid the nudge.

Yet, for Van Rooij and Fine, the Behavioral Code teaches us that regulation stands the best chance to achieve its outcomes when it is easy to comply with or, perhaps even more vital, when it is difficult not-to-comply with. This puts an onus on regulators to not only make compliance ‘fun and easy’ (as per Nudge) but also question and challenge long-held assumptions about the reasons why people comply (or not). Then, in the next step, it challenges regulators to explore where their regulation and its implementation fails to achieve good compliance outcomes. And that is a less positive (or exciting) suggestion than what regulators read in Nudge.

Luckily, The Behavioral Code provides all the essential tools that may help regulators improve their regulation and its implementation. Just ask yourself some of these questions: Are your rules understandable to the people subject to them? Have your rules been written to align with people’s world views, biases, and heuristics? Do people have the means and ability to comply? Does deterrence work in your area of regulation? What are the true motivations of people to comply (these may include social norms, a moral duty to obey, or simply habitual compliance)?

As with Nudge: The Final Edition (that I have reviewed in the previous post), The Behavioral Code is a timely contribution to the ever-growing literature on the use of behavioural sciences in regulatory governance (and public policy more broadly). The difference between the two is that the former to some extent is ‘more of the same’. In contrast, The Behavioral Code is treading new ground (at least for many regulators) by diving much deeper into the value that the behavioural sciences have to offer to regulators.

Disclaimer In these brief book reviews, I discuss classic and contemporary books that make up the canon of regulatory scholarship. I focus on their central guiding idea or core notions and aim to keep the reviews to around 500 words. Unfortunately, this implies I must sacrifice a considerable amount of detail from the books reviewed.