The Two-Way Street Between Law and Social Psychology

                                                                                         Kees van den Bos

Insight into social psychology is relevant for the understanding of how the law works in courtrooms, how people perceive the law as a legal system, and how officials function in several legal contexts, such as in the areas of legal decision making, law making, and law enforcement. In other words, social psychology is needed to understand how the law works (or law in action). Furthermore, in part because both social psychology and law share an emphasis on behavioural regulation, notions about how the law should work (or law in the books) can also profit from an understanding of basic principles of social psychology. Importantly, insights into the social psychology of law are not merely an application of basic social psychological principles in legal contexts. Rather, studying social psychology and the law often provides insights that may well feed into basic social psychological research. Thus, both law and social psychology can learn from each other. In this blog I reflect on the two-way street between law and social psychology.

I rely in this blog on a forthcoming chapter to be published in the third edition of ‘Social psychology: Handbook of basic principles’ (to be published by Guilford Press). In the chapter I reflect on the interface between social psychology and law. This is an issue that is gaining relevance due to the growing attention many law schools in the Netherlands and elsewhere are paying to empirical legal studies.

I note in the chapter that there are several reasons why it is important to study the intersection between social psychology and law. One reason is that, upon reflection, it becomes clear that social psychology and law share many similarities. For example, the law as a system can be defined as a codified set of rules developed to regulate interactions and exchanges among people. As such, the law constitutes an arrangement of rules and guidelines that are created and enforced through social and governmental institutions to regulate behaviour. This regulation of behaviour includes conflict resolution and sentencing decisions and ideally takes place in such a way that a community shows respect to its members.

Social psychology is the science of human behaviour and how people think and feel in social contexts. More formally, it entails the scientific study of how people’s thoughts, feelings, and behaviours are influenced by the actual, imagined, or implied presence of others. One could say that social psychology and law share a common interest in behavioural regulation such that whereas social psychology describes how human behaviour is regulated, law as a discipline tends to focus on the issue of how behaviour should be regulated. Of course, the two disciplines examine many more different issues, but this observation of descriptive versus normative accounts of behavioural regulation implies that legal scholars and legal practitioners can profit from the insights of the social psychological discipline to better understand how people’s behaviours (and their associated thoughts and feelings) are, in fact, regulated. This implies that notions of how the law should work (or law in the books) can profit from an understanding of basic principles of social psychology.

Insights into social psychology in legal contexts is also important because it shows how important societal institutions can impact human behaviour. This issue is under-studied in modern social psychology, which is surprising given social psychology’s central orientation to the issue of how social contexts influence human reactions. My forthcoming chapter tries to fill this void. In doing so, I argue that studying in detail the basic principles of social psychology in legal contexts is not merely an instance of “applied social psychology”. Rather, insights from the social psychology of law provide important nuances to (and hence feed into) basic social psychology needed to make the social psychological discipline more robust, more fine-grained, and more relevant.

This chapter fits into a growing – albeit not undisputed – trend in the legal discipline to pay attention to insights from the behavioural and societal sciences, including findings from empirical studies in legal contexts. Because social psychology can be characterised as a hub science that bridges behavioural, societal, and other scientific disciplines by means of careful conceptual analysis and empirical study, it can well be argued that focusing on the social psychology of law is timely and important. In exploring this issue my aim is twofold: (1) to provide a general overview of the topics that fit under the general umbrella of the “social psychology of law” and (2) to provide an overall conceptual framework for organising these topics by presenting a set of basic principles governing the social psychology of law. More information can be found in the chapter that will be published later this year.

In the chapter I argue that insights into the social psychology of law are not merely an application of basic social psychological principles in legal contexts. Rather, it is my experience that studying social psychology and the law often provides insights that may well feed into basic social psychological research. For example, issues studied in legal research have obvious societal relevance and can be examined in research programs with high levels of both internal and external validity, which is something modern social psychology really needs. Furthermore, there is a tendency in current social psychology to generalise too much based on too small sets of research studies that rely too much on overly studied research participants (such as university students or participants from online platforms such as Mechanical Turk). The result sometimes is a rather feeble basis and on occasion too abstract or overgeneralised theoretical frameworks. In contrast, the study of law tends to focus strongly on particulars of specific contexts, and tends to refrain from generalisations across contexts. As such, the study of law can provide contextual nuances much needed for a more precise, more robust, and more relevant social psychological science. The study of law may also stimulate social psychologists to stop their over-reliance on laboratory experimentation and to start using other research methods such as archival and observation studies and qualitative in-depth interviews more actively, creating a more balanced treatment of research methodology.

With these positive notes on the integration of social psychology and law I do not want to under-estimate the important differences in assumptions, conventions, interests, and orientations of the two disciplines. For example, Ellsworth and Mauro note that social psychologists are comfortable with aggregate data. In contrast, according to these authors, lawyers reason on a case-by-case basis, searching the record for particular cases that match the one at hand, and looking for ways to distinguish a case from apparently similar cases. Many lawyers resist having to decide a person’s fate on the basis of empirical data drawn from other people, no matter how large or representative the sample. Furthermore, social psychologists are comfortable thinking in terms of probabilities and making explicit quantified probability judgments. Although most legal judgments are probabilistic, many legal scholars are uncomfortable about making the probabilities explicit. Moreover, social psychologists are comfortable thinking in terms of continuous variables. The law’s task is to draw lines, to create what to a psychologist are suspect dichotomies: sane or insane, fit or unfit to be a parent, voluntary or involuntary.

Twining has argued that – for understandable reasons – a great deal of legal research with an empirical dimension has been oriented towards policy, law reform, or other kinds of immediate practical decision making. “Many such enquiries are particular rather than general, not illuminated by theory, do not claim to be explanatory or predictive, and their findings do not accumulate.” By focusing on some basic principles of social psychology in legal contexts, I hope the forthcoming chapter contributes to the conceptual and empirical development of the exciting two-way street between law and social psychology.