Behavioural Analysis of Criminal Law: A Survey

How to Cite

Harel, A. (2014). Behavioural Analysis of Criminal Law: A Survey. Bergen Journal of Criminal Law & Criminal Justice, 2(1), 32-55.


This article is a survey of behavioural analysis of criminal law. Behavioural analysis of criminal law exploits social science methodologies (behavioural economics, psychology and even sociology) to explore the effects of criminal law norms and enforcement policy on criminals, judges, juries, lawyers and other decision-makers, to determine the optimal type and size of criminal sanctions, to identify the optimal design of the enforcement system and the rules of evidence. Unlike traditional economic analysis, the behavioural perspective is eclectic rather than unitary; it is composed of various psychological and sociological findings including cognitive biases and their effects, prospect theory, the effects of social norms, findings concerning the ways preferences and beliefs are being shaped and even studies concerning happiness. Behavioural theorists call for the understanding and at times exploitation of various cognitive misperceptions, biases and heuristics to increase the deterrent effect of criminal law prohibitions and sanctions and/or increase their effectiveness. This survey compares this approach to traditional retributive approach and to economic analysis of law. It also provides several examples in which behavioural insights were used and, last it evaluates the prospects that the behavioural approach will influence policy and legislation.

Copyright (c) 2014 Alon Harel

Creative Commons License

This work is licensed under a Creative Commons Attribution 3.0 International License.

Authors who publish with this journal agree to the following terms:

Authors retain copyright and grant the journal right of first publication with the work simultaneously licensed under a Creative Commons Attribution License that allows others to share the work with an acknowledgement of the work's authorship and initial publication in this journal.

Authors are able to enter into separate, additional contractual arrangements for the non-exclusive distribution of the journal's published version of the work (e.g., post it to an institutional repository or publish it in a book), with an acknowledgement of its initial publication in this journal.

Authors are permitted and encouraged to post their work online (e.g., in institutional repositories or on their website) prior to and during the submission process, as it can lead to productive exchanges, as well as earlier and greater citation of published work.

Bergen Open Access Publishing