ON BEYOND INTEREST: RATIONAL, NORMATIVE AND COGNITIVE PERSPECTIVES IN THE SOCIAL SCIENTIFIC STUDY OF LAW - FAKKIR

ON BEYOND INTEREST: RATIONAL, NORMATIVE AND COGNITIVE PERSPECTIVES IN THE SOCIAL SCIENTIFIC STUDY OF LAW

FAKKIR.XYZ | JURNAL – Perhaps the most basic aspect of human behavior is “decisionmaking”-the process of selecting between alternative, incompatible lines of action. We make hundreds of such selections each day, both as individuals and as members of collectivities. Some we consciously recognize as decisions (for example, a female academic’s choice of whether to wear a skirt or pants to a professional conference), and others we do not (for example, a male academic’s resolution of this same sartorial quandary). The premise behind theories of decision-making, however, is that all of these choices share common behavioral foundations. In other words, despite the wide variety of choices that we confront, decision-making theories posit that people and groups select among alternative lines of action in a limited number of relatively simple and universal ways.
Much of the sociology of law (like much of social science in general) rests on certain implicit or explicit assumptions about how people make decisions, and, in the sociolegal realm, about how people respond to the law. This essay outlines what I see as the three leading perspectives on decision-making and briefly explores the manifestations and implications of each for the social scientific study of law. These perspectives are: (1) “instrumental” or “rational choice” theories, which hold that decisionmakers2 act primarily on the basis of material self-interest; (2) “normative” or “moral” theories, which hold that decision-makers act primarily on the basis of ingrained moral beliefs, even when doing so conflicts with narrow self-interest; and (3) “cognitive” or “constitutive” or “definitional” theories, which hold that decision-makers act primarily
on the basis of taken-for-granted roles and scripts, without consciously exploring alternative possibilities at all. The instrumental approach implies that responses to law reflect a calculated assessment of the rewards and punishments embodied in legal sanctions; the normative approach implies that responses to law reflect the internalization of social norms and moral principles; and the cognitive approach implies that responses to law reflect the ability of legal rules to define, constitute and construct a shared reality in which certain behaviors become socially nonsensical.

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