Goodbye Justice, Hello Happiness: Welcoming Positive Psychology to the Law

Abstract

[Legal regulation is the most coercive and effective behaviour modifying tool in our community. As a general rule, law relates to the areas of human activ

Heritage values and legal rules

“…Among these plural and interdisciplinary approaches to the law, one that seems particularly suited for discussion in our present context is the import of psychology (and, more specifically, positive psychology) to the law. Positive psychology seems to challenge the law in particular by moving the yardstick against which law's effectiveness is measured away from the notion of justice (grounded on subjective rights, which, as we discussed above, are not particularly well suited to the heritage context) toward law's capacity to promote happiness (Bagaric and McConvill, 2005;Kasser, 2005).…”

“…In terms of application of positive psychology to the law, Bagaric and McConvill (2005) suggest that "laws should only be passed if there is evidence to support the view that they are likely to promote happiness" (p. 22). They put special emphasis on liberty as a key value of happiness, and argue, for instance, that "planning laws restricting what one can do with his or her property […] should be relaxed" (p. 23).…”

“…More generally, though, a focus on liberty as the key value to be promoted leads necessarily to a rather utilitarian view of the legal system, which is not necessarily aligned with positive psychology, and one that, when taken too seriously in the law, can lead to problematic results that rights-based normative theories were developed to counter. Which is why Bagaric and McConvill (2005) themselves concede that a supervisory role remains for morality.…”

Happiness and Law

“…Therefore, the demand for political promotion of happiness not only raises questions of political but also of legal theory (Posner and Sunstein, 2010). Some authors have even gone so far as to argue for replacing the central idea of justice, which has been discussed (in vain, as they think) for thousands of years, by the central idea of “happiness,” which can be tested empirically: “Who needs justice if we are all happy?” (Bagaric and McConvill 2005, 2).…”

“…Just to give an example, there is strong evidence that the perception of inequality and injustice clearly reduces well‐being (Wilkinson and Pickett 2009; Bok 2010, 79–98). This is, of course, just one argument amongst others against the demand by Bagaric and McConvill (2005) that the discourse on justice should be substituted by the discourse on happiness. Perhaps a special benefit of empirical research is that it gives empirical arguments in defence against overhasty pleas in favour of a policy and law to promote happiness.…”