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Non-Legal Insight for Optimal Norm Design – Exploring the Chain Between Norm Setting and Compliance

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A simplified relationship between setting of a norm and an individual's compliance can be characterized by three distinct stages: norm comprehension and processing; the deliberate compliance decision of the individual; and non-deliberate decision-making. On each stage, there is insight from social sciences, experimental psychology and behavioural law and economics making different predictions about individual compliance behaviour. We study the implications of extra-juridical insight as well as normative constitutional requirements on the optimal design of norms. We find considerable variance in norm designs for improving compliance depending on the respective empirical insight. Regarding norm comprehension, there is ambiguity in the relationship between individual's limited cognitive processing capacity and the constitutional law imperative for norm specificity. The stage of deliberate decision-making relates to the rationality model of human behaviour allowing for economic, reciprocal, communicative human dispositions, each of which requires different law designs to induce individual's compliance. Homo oeconomicus responds to law design using costs as steering tool. Homo reciprocans can be directed through decentralized self-regulation, governance of small political units and belief management. And compliance of homo communicans can be induced when procedures are perceived as being fair and inclusive. Finally, the existence of non-deliberate decision-making may justify paternalistic legal measures. The findings may inform lawmakers in how to design and draft laws to optimize norm compliance.
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Keywords: EXTRAJUDICIAL KNOWLEDGE; NORM COMPLIANG; NORM DESIGN; NORM SETTING; PATERNALISM; RATIONALITY MODEL

Document Type: Research Article

Publication date: July 1, 2016

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  • Archiv für Rechts- und Sozialphilosophie, edited by authorisation of the International Association for Philosophy of Law and Social Philosophy (IVR), is an international, peer-reviewed journal, first published in 1907. It features original articles on philosophical research on legal and social questions, covering all aspects of social and legal life.
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