By Francis Ben Kaifala Esq
It is often said that the choices we make determine our destiny. In the Bible, we hear of our right to choice as the "divine free will", while in Economics we are told of "choice" as a means of allocating scarce resources. In legal parlance, one key function of the law is to limit the framework within which people make choices – law limits God-given free will.
The legal and regulatory regime in Sierra Leone mostly sets out prescriptive rules and sometimes sanctions for violations while leaving a large segment of the behaviour of people unregulated. Because the existing laws are unsurprisingly inadequate, it is mostly the choice of the citizen that governs their behaviour.
Further, our lawmakers sometimes make laws haphazardly without taking into consideration how people will likely behave in response to those laws, and then shape future rules. Time has not been taken to study what rules should be set to advance specific ends beyond the “copy and paste” rules adopted from our colonial masters or wholesome imports from other countries whose peculiarities may not necessarily match ours.
More importantly, we have not conscientiously assessed the ends of the legal system beyond what was instituted and left for us by our colonial exploiters. We are stuck with mostly dormant and disused laws which disregard people’s choices in policy formulation which have failed to yield the desired end. This is because, laws should be set taking into consideration insight into people's behaviours, drawing attention to their cognitive and motivational problems so as to create a more serene, descent and progressive society - the ultimate goal of regulation.
"Behavioural change" in terms of respecting the law or conforming to social norms has not worked because of various human imperfections like bounded rationality, limited altruism and the justified belief that one can get away with infractions of the law - all of which lead to departures from conventional behaviour and thinking. Bounded rationality simply points to the fact that we do not have infinite cognitive abilities and that our judgements are flawed.
Moreover, there are other biases that prevent people from making choices that would maximise even their own interest, let alone that of society as a whole. They, for example, value what they already have more than they would value a similar thing which they don’t have - even if the latter could prove to be more useful to them (“a bird in hand is worth two in the bush”); they assume that other people have the same values as they do (“we are all mates”); they succumb to "hyperbolic discounting" whereby they put more value on present pain and pleasure than future ones (“man lives but once”), they are excessively optimistic (“things will get better”), they yield to confirmation bias whereby their preconception makes them claim evidence in support of things that sometimes may not even exist (“ghosts”), they are prone to "hindsight bias" and rely on hindsight to think something unlikely that is in fact likely to happen (“Ebola will not catch me”). All these examples lead to impaired judgements that affect behaviour and attitude.
Cognitive limitations affect all - judges, legislators, other government actors as well as private individuals. Policy makers get it wrong a lot of times as they themselves are not rational and suffer from cognitive biases (and sometimes ignorance) which makes them make wrong policies or choices. But since they will not be under the same pressure to account as the ordinary citizen to whom sanctions may be applied, they bluff their way through.
Attempts at changing people’s behaviours through laws on the one hand and megaphone campaigns, billboards, and various television and radio programmes on the other, will not necessarily produce the desired results. For several years these have been ongoing and not much has changed. The more resources that will be committed to these ineffective exercises, the more the public will grow weary of them. Therefore, to ensure change and determine the viability of policies aimed at achieving social order, policy makers need good advice from those who have the know-how so as to help them develop policies and norms that influence the choices that people make and steer them in efficient directions.
Behavioural and attitudinal change is like evolution - it will either happen through drastic events (like massive imprisonments and draconian punishments) or a slow process over a very long period of time. Both options are impracticable in our circumstances as harsh laws will lead to public revolt, and prolonged policies breed discontent. If we want to see a clean environment, or eradicate corruption, or make citizens law-abiding etc., we need a proper policy strategy. Therefore, policy makers must be willing to ‘nudge’ the choices of their citizens for their own good. A nudge is simply ‘a gentle push’ in the right direction.
To illustrate this, in order to ensure people plan for their old age, you impose a pension plan on them with the option that they opt out but at their own peril. If you want people not to throw dirt in the streets you clean the environment and set up functioning public disposal systems. If you want people to eat healthy food, you label unhealthy food as “unhealthy”. If you want to minimise accidents, put signs that do not patronise the driver like "please drive safely" but ones that would say “speed yourself to death and reach your Maker fast”. In all these cases, the policy-maker will be ‘nudging’ the target population to make choices that are in their own interest and that of society without interfering with their freedom. This will make people respect authority and obey the law.
‘Nudging’ happens around us all the time: In the male sections of public toilets there is the tendency for users to spill on the floor even if the basin is large enough and well designed to accommodate their pour of urine. To ensure that they do not spill, a savvy utility owner would put a plastic miniature butterfly in the middle of the basin. This is not done as a desire to decorate a urinary basin; but merely to nudge the attitude of grown-up males and keep them from spilling on the floor by creating a target for them to hit. It will be observed that spilling will be considerably minimised. Same for "default" settings on mobile phones, laptops and other electronic devices we buy. While we can opt out of those settings, not many people bother.
After 53 years of independence, assuming that peoples’ behaviours will change with our grossly inadequate laws is erroneous. Our society remains filthy, lawless, and generally on the brinks of failure. ‘Nudging’ through regulatory and non-regulatory interventions could be the answer. We have to move from the laid-back and mostly wasteful ‘behavioural and attitudinal change’ drive and implement policies that would nudge the people towards self-sufficiency, self-reliance, a cleaner and safer environment, and turn them into patriotic and law-abiding citizens with each man a one-man statement of a good Sierra Leonean. This is not only desirable, it is possible - directing people’s Choices to welfare promoting behaviours without eliminating their freedom of choice is the secret tool that the West has used to leave us in a limbo on progress.
This proposition is likely to bring unease in the conventional wisdom that ‘the law settles all’ and that law is the best way to influence behavioural and attitudinal change. Policies which promote autonomy or welfare are more likely to succeed in a society that prides itself in freedom than hard law. The way legal rules are designed will have a very strong influence on how people think and the choices they make. ‘Nudging’ does not nullify the law, but merely fulfils it. It will reframe aspects of our existing laws like workers’ welfare, family, crime and future ones like consumer protection and competition laws, and likely bring about all-round socioeconomic development which seems to continue to elude us.
Francis Ben Kaifala Esq. is a Senior Partner in the Law Firm Kaifala, Conteh & Co., Top Floor, 81 Pademba Road, Freetown; a Candidate for the award of the joint LLM (Master of Laws) in International Financial Law & Economics by the School of Law and the School of Economics and Finance at Queen Mary University of London. Email: fkaifala@yahoo.fr
(C) Politico 09/09/14
