Scientific Legal Policy and Behavioral Law and Economics. Petrazycki's Legacy

The aim of the paper is to discuss the relationship between scientific legal policy developed by Leon Petrażycki and the behavioral law and economics movement. To a certain extent behavioral economic analysis of law can be characterized as a legal policy which is based on the achievements of cognitive psychology and behavioral economics. Closer analysis of the assumptions of both disciplines will allow comparing the reconstructed assumptions, methods and objectives of each version of the legal policy. Classical definition of legal policy states that it is a legal discipline whose goal is scientific prediction of the consequences of newly enacted legal rules and also developing guidelines that will help to achieve the objectives set up by the legislator. On the other hand, the movement of behavioral law and economics in its basic analysis intends to answer the question of how to create and apply the law in order to achieve desired goals. However, there are differences. The behavioral law and economics movement can be characterized as a bottom-up strategy. It does not set a general, ambitious goals, but focuses on improving specific legal institutions across legal system using psychological and economical insights. On the other hand, Petrażycki adopted a “top-down” strategy. He developed an ontology of law and after proposing a certain picture of law, and its relation to psychology, he developed a legal policy which an ultimate goal is a realization of the social ideal. Comparison these two visions of legal policy will allow assessment of their advantages and drawbacks.