Legal Liminality: An Inquiry Into the Cognitive Foundations of the Law

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Legal theorists have long argued that law is more than enforcement, i.e. rather than being just an externally observed phenomenon, that it involves a cognitive element on the part of participants in the practice. The dominant accounts of this cognitive element divide into those—within the law and economics paradigm—that see it as a cost-benefit analysis and others—in the natural law tradition—that conflate it with morality. Recent evidence suggests, however, that the picture is more complex: neither are human beings as relentlessly self-interested as they are parodied to be as the homo economicus of rational-choice theory nor do they possess unlimited altruism. But there has been very little systematic inquiry—certainly of an empirical nature—into the question: what are the cognitive foundations of law— as a mode of cooperation—that make it distinct from other institutions? This project will attempt to fill that gap by trying to understand the relationship between decision-making at the individual level, group behaviour and social outcomes—focusing, in particular, on the role of trust and the notion of community in mediating these relationships, and the point at which social norms “tip” into law. Joining the dots between behavioural law and economics, moral psychology, legal theory and economic sociology, it will draw on the range of methodologies currently in use in the American Empirical Legal Studies tradition (with a focus on behavioural techniques) and extend current practice by developing an approach specifically adapted to legal scholarship. This ground breaking research will seek to stretch the boundaries of current knowledge—in disciplinary, methodological and, ultimately, theoretical terms— through pioneering approaches to the empirical study of law and thereby contribute to real world change in the way that law and legal systems function, with implications for development, climate change, regional alliances and a range of other key challenges.