Reinvigorating Comparative Law through Behavioral Economics? A Cautiously Optimistic View

Abstract

The purpose of this article is to investigate whether (evolutionary informed) research in behavioral economics can be of use to reinvigorate comparative legal research. The article is structured as follows. After a brief introduction, the second section identifies two overarching (and closely related) deficiencies that seem to permeate the various contemporary comparative law methodologies: first, their widespread disinterest in empirical support that would substantiate or refute their distinct working assumptions and often sweeping claims, and second, the lack of specification of the otherwise oft-invoked notion of culture. The third section then explores whether research in behavioral economics can be put to use to address these deficiencies. First, it is submitted that the behavioral patterns that form the subject matter of behavioral economics offer an interesting avenue for developing empirically better underpinned and legally sufficiently neutral comparative standards. Subsequently, the article examines research that is collecting data on cross-cultural differences in behavior, attempting to relate the observed behavioral variability to more specified macro-level variables. Although clearly much work remains to be done, it is argued that this type of research can be instructive for comparative legal scholars who take an interest in developing an alternative to the (use of a) fourre-tout concept of culture in comparative law.