(featured image collage with work by LtapsaH/Pixabay)
The law can be an important, but often overlooked, factor in our day-to-day choices. But how effective are legal bans and obligations really?
A decision whether or not to do something is almost always made on the basis of one of two types of judgement: does it deliver a benefit (or avoid harm), or is it the right thing to do? But sometimes, there is a third factor: the law. Does the law oblige us to do something, or prohibit us from doing something? Two recent developments, one in my native country and one in the one where I have lived for many years, caught my attention and made me wonder about the impact of the law on our decisions.
Belgium is one of the few countries where voting (or, more precisely, presenting yourself at a polling station) is mandatory, with a penalty of between 40 and 80 euros (escalating for repeat offenders, with for persistent ones, ironically, a ban on voting). This year, for the first time, 16- and 17-year-olds will be allowed to vote, and there was concern about the legal obligation to exert this democratic right for these youngest of voters. An amendment to exempt them from this duty was declared null and void by the constitutional court, so every Belgian citizen over 16 who fails to turn up still risks a fine (in theory, since prosecutions have been few and far between). Yet, is such legal compulsion a good idea?
In the UK, the government is tabling legislation to introduce a phased ban on the sale of tobacco. If it becomes law, then it will be illegal for anyone born after 1 January 2009 to purchase tobacco products (or for people born before that date to purchase them on behalf of people born afterwards. Technically, smoking itself will not be banned, but the intended effect is to prevent younger people, even as they get older from smoking. Is such a legal ban a good idea?
Not so simple
Superficially, obligations and bans seem simple enough: something is either obligatory or not, or prohibited or not. But two aspects of such legal constraints make it a much more interesting influence on decision making than its binary appearance suggests. The first one is that proscriptions and legal requirements are not absolute: they tend to translate into a particular punishment in response to a breach. The second one is that the burden of an obligation or a prohibition only really matters for those people whose behaviour deviates from what the law prescribes. If you are a loyal voter in Belgium, the threat of a fine is of no importance to you; if you are a non-smoker (or indeed over the age of 15) in the UK, the law will have no effect on you.
If, as is almost always the case, punishment follows transgression, it can be seen as part of a risky bargain: if you are caught, you pay the price. This takes it, for those who chose to transgress, out of the realm of intrinsic motivation and even of moral obligation: paying up is a transactional cost which clears your moral debt. A classic example of this is the paper A fine is a price, by psychologists Uri Gneezy and Aldo Rustichini, which describes how the introduction of a fine for parents who collected their children late from daycare institutionalized the behaviour. Instead of reducing the number of late pick-ups, it increased them.
The surprise at this result stems from our tendency to estimate the effectiveness of the threat of the punishment from our own perspective. If we are conscientious parents, the fine will, if anything, make us even more conscientious. Similarly, if we would not dream of shoplifting, we would do so even less if we risk being punished, therefore we believe that this will apply to everyone. We fail to consider that, for some, the penalty for a transgression becomes an invitation to a transaction, negating any (weak) moral hesitation they might have had. Punishment can even normalize the situation – we are all great at adapting to new situations: we don’t like paying but if that’s the price, so be it. Stronger punishment? That may well backfire: research suggests that harsher punishment fails to deter (with only a small fraction of crime reduction being attributable to punishment policy). Some transgressors will simply choose to raise the reward by increasing the frequency or magnitude of the transgression to compensate for the added risk that is imposed on them.
Coercion is generally an expensive way of pursuing behaviour change in any case. If you force people to behave in a way they would not normally do, the game of reward and punishment means enforcement is likely to be needed indefinitely. Several decades of working in organizational change has left me with no doubt that desired change, in which individuals want to adopt different behaviour is much more effective than imposed change in which they have to. People will seek, and find, ways around the restrictions and impositions.
Looking for a balance
The fact that laws are often de facto only relevant to a small minority of people is significant too. If a law affects relatively few people, those who remain untouched by it are unlikely to question it. Quite the contrary, perhaps: if behaviour A is the norm, a law prohibiting non-A behaviour will force those violators to conform, won’t it? Maybe. But some people, even if they are conforming now, might flip, an effect known as reactance: when people feel their autonomy is threatened or constrained, they will resist and try to restore their freedom by doing what is not allowed, or failing to do what is obliged.
This phenomenon illustrates how deeply we value our individual freedom. It is obvious that we cannot realistically claim absolute freedom to do whatever we want, regardless of the consequences. Any such scenario would rapidly lead to a dystopian society and eventually its complete breakdown. But we evolved as a social species, capable of balancing our own, personal freedom with that of others. We are considerate of our fellow humans, by and large, because we intrinsically believe that this is the right thing to do, not because we are afraid of being punished if we don’t. Intriguingly, our willingness to comply seems even to increase when our freedom not to comply is explicitly asserted – the opposite of reactance – known as the “But You Are Free” technique, as research by psychologists Nicolas Guéguen and Alexandre Pascual, and a later meta-analysis of 42 studies by psychologist and communication scientist Christopher Carpenter found.
This is not an argument against all legal bans and obligations, but against their use without consideration of the fundamental value of individual freedom. We should be careful sacrificing it, and make sure that when we do we have a good justification – especially if it is not our freedom, but someone else’s, that is on the line. We should be even more cautious using legal bans and obligations, and the threat of punishment, as a paternalistic instrument to shape individual behaviour or societal norms. (Remember that nudging is deliberately described as freedom preserving libertarian paternalism.)
So what with the British anti-smoking legislation and the Belgian mandatory voting? The case for the former is weak. Historically, legal prohibition of alcohol and drugs has not really been a resounding success, and given the fact that smokers already pay through the nose for their nicotine fix, a fine is unlikely to make much difference. Should such personal decisions really be the government’s business, regardless of the detrimental effect on the smoker? (And if the argument is the externality smokers impose on society, the duty paid on tobacco sales is perfectly suited to handle that.) But in Belgium, an unenforced old law does perhaps have its use. The fact that nobody gets fined for not turning up at the polling station is well known in Belgium – functioning much like a “But You Are Free” invitation – with, regardless, more than 90% freely exercising their right (or fulfilling their legal duty).
Koenfucius 