Institutional framework

In most societies, there is a distinction between occasional or informal sexual encounters and arrangements (which may be approved, tolerated, frowned upon, prohibited, etc.) and more stable and formalized unions. The initiation of the latter kind of union is generally, at least in principle, marked by some public event. There are shared norms about what each party should expect from the other, given such ceremonies, and about how they should behave towards third parties. Finally, sanctions are associated with the violation of these norms. Why is all this so common?

A standard, and plausible initial answer would be that such norms reduce uncertainty in social interaction, a general feature of social institutions. Marriage norms and wedding ceremonies certainly have that effect, in several ways. First, marriage between two individuals conveys to third parties that the individuals concerned have rights in each other that (mutatis mutandis the local norms) are not available to other members of the group. There is, for example, a certain amount of resources or help that a husband may expect from a wife or vice versa, or a woman from her in-laws, but not from others. Second, marriage conveys to third parties that the individuals concerned have (again, with local variations) withdrawn from the pool of potential mates. The fact that there is a long-term stable union between the partners modifies third parties’ mating strategies and preferences towards either one of the partners. Ceremonies do not just signal this to a large number of people, but also inform them all at the same time in the same way. Third, marriage conveys to each party that the other is (at least overtly) committed to fulfilling their obligations as per the local norms. Regardless of intentions, the public commitment signal creates expectations against which either party can measure behaviors.

In other words, the most important effects of weddings seem to consist in signaling. In all human societies weddings are of interest and great concern to outsiders, which is why for instance the ceremonies are often quite literally very noisy affairs (Van Gennep, Reference Van Gennep1909). Internal signals between the married parties are equally important. The potential benefits of an efficient marriage are in part public goods, and in many cases cannot be achieved without sacrifices, given the spouses’ divergent preferences (Posner, Reference Posner2000). So marriage requires honest, hard-to-fake signals of commitment. These are provided in many societies by costly conditions for marriage, for example, the obligation for brides to leave their kin groups, for grooms to provide bride wealth, or to show adequate means to support a family, etc. Such conditions serve (in part) as signals, which may explain why, when they are relaxed as happened in many Western societies, they are replaced with informal signals such as occasional gifts (Posner, Reference Posner2000). The occurrence of informal, ‘spontaneous’ signals varies inversely with the precision of the group-wide representation of marriage roles.

All this is fine, but falls short of a satisfactory answer to questions of design. Coordination and uncertainty-reduction effects do not explain why marriage is universally about two parties, so that polygamy is a series of two-party contracts, not a group arrangement; why polygyny is common and polyandry exceedingly rare; why a single institution binds sexual, economic and offspring-related norms in most societies; why divorce is often available but fixed-term marriage is generally not; and other such common features.

Evolutionary background

The institutions may make more sense in the context of specific preferences and competences that arise from human evolution. Obviously, natural selection results in particular mating preferences and processes in each species, and ours can be no exception (Symons, Reference Symons1979). It would be surprising if human competences and preferences in this domain had no influence on the design of marriage. Indeed, human reproduction and parenting display expected features given the specific history of our primate lineage (Van Schaik and Van Hooff, Reference Van Schaik and Hooff1983).

As in most other mammals, there is in humans a large asymmetry of reproductive costs between human males and females. The latter's costs include a long gestation, an even longer nurturing period, with their associated energy and opportunity costs, as compared with the lesser cost incurred by males. This, as in comparable species, means that sexual selection has been important in favoring distinct behaviors and preferences in males and females. Females need to be much more choosy than males in mate selection. Also, females should prefer males with demonstrable capacity and willingness to nurture their offspring. Differences between male and female preferences result in an equilibrium that includes relatively long-term paternal investment in children's nurturing, conditional on fathers’ certainty that the children are their own biological offspring, as well as a certain but limited amount of philandering and ‘mate poaching’ in both sexes.

These evolutionary factors predict a whole variety of human behaviors which are actually observed in most human societies, such as: the general disposition towards long-term paternal investment; sexual differences in attractiveness criteria (Buss, Reference Buss1989); differences between criteria for long- and short-term mates (Kaplan and Gangestad, Reference Kaplan, Gangestad and Buss2005); the ways in which attractiveness is turned off by childhood cohabitation and other cues, leading to incest avoidance (Lieberman et al., Reference Lieberman, Tooby and Cosmides2003); the specific triggers of and gender differences in sexual and romantic jealousy (Buss, Reference Buss2000); mechanisms of sexual coercion and attempts by men to control women's sexuality and increase paternal certainty (Wilson and Daly, Reference Wilson, Daly, Dobash and Dobash1998); the general pattern of serial exclusive monogamy (and polygyny) observed in human societies (Van Schaik and Van Hooff, Reference Van Schaik and Hooff1983); the male tendency to reject step-children (Daly and Wilson, Reference Daly and Wilson1988; Anderson et al., Reference Anderson, Kaplan, Lam and Lancaster1999a, Reference Anderson, Kaplan and Lancaster1999b); the influence of male presence/absence on young women's choices of reproductive strategies (Ellis, Reference Ellis, Barkow, Cosmides and Tooby1993); and many other behaviors.

Naturally, most computations required by such behaviors are largely unconscious – only their results are available to conscious inspection. To cite but one example, it seems that women's choice of early sexual activity and early pregnancy are directly affected by paternal presence during a critical period in early childhood (Ellis et al., Reference Ellis, Bates, Dodge, Fergusson, Horwood, Pettit and Woodward2003). This can be explained as learning from the environment which reproductive strategy is most appropriate, given low paternal investment in offspring (Quinlan, Reference Quinlan2003). Obviously, young women never represent reproductive choices as a search for optimal fitness. They are responding to such proxies as the attractiveness of particular mates or a desire for children, and other here-and-now preferences for particular kinds of behaviors, all of which are the outcome of non-conscious cognitive processes.

An integrated perspective

An important point here is that human preferences and behaviors in the mating domain include the expectation of stable long-term unions between men and women that associate privileged or exclusive sexual access with economic solidarity. Note that this is largely intuitive, that is, most humans hold this expectation without necessarily having the explicit model or principles that would explain it. Also, this expectation is of course more abstract than the norms for such long-term unions in particular societies, which can vary in many respects such as number of people involved (polygyny versus monogamy), exclusiveness (e.g., societies with sanctioned ‘visiting’ lovers), required paternal investment in offspring (from full responsibility to occasional visits) and, most important, filiation and inheritance rules.

All this suggests that human beings are equipped with an evolved, domain-specific learning system that is prepared for and attentive to information about the particular ways in which marriage unions are locally defined and organized. In this perspective, the transmission of culturally specific information about marriage norms ‘free-rides’ on information supplied by our intuitive expectations. That is, people easily acquire their local marriage norms because the assumptions (e.g., that the union is heterosexual, that it is about long-term mating, that it associates sexual access with resource sharing, etc.) are among the evolved cognitive equipment of the species.

This would explain why many aspects of marriage norms are not the object of explicit, deliberate transmission, seem to ‘go without saying’ while others are the object of explicit norms. For instance, the assumption that marriage binds a man and a woman is intuitive enough that it is not actually specified in most cultures. By contrast, the permissible number of simultaneous unions, or the precise manner in which they can be broken up, are matters of explicitly transmitted information. The expectations that married people will contribute to each other's welfare, or that an officially declared union must be officially dissolved, do not have to be made explicit. In this perspective, the social institution seems to consist in particular parameter settings of a marriage template that is spontaneously created by normally developing minds.

Institutions

The emergence of ‘the law’ as a separate domain of norms and behaviors, distinct from other social norms, is confined to large polities with literacy (Maine, Reference Maine1963; Goody, Reference Goody1986). However, most human groups do have explicit norms for conflict resolution and the punishment of wrongs, even if these are not defined as different from ordinary, non-legal decision making (Hoebel, Reference Hoebel1964). From these norms and procedures to the literate, codified legal systems of large states, there is a continuum of social complexification, along which some central aspects of legal norms are preserved. Legal systems all modify personal, face-to-face conflict resolution on the basis of norms that are: (a) explicit; (b) (at least partly) de-contextualized (e.g., construed as the right way to sanction theft, rather than this particular act of theft); (c) (at least partly) impersonal, as they in principle apply to whole classes of agents or even to all possible agents; and (d) therefore more predictable than informal ones.

Why these common features? One possible explanation is that legal institutions are just economically efficient sets of conventions. Richard Posner, for instance, considers that standard economic models of utility maximization explain most features of legal systems (Posner, Reference Posner1981). Economic rationality would account for differences between the custom-bound legal systems of small-scale traditional societies, and the legal codes of large-scale industrial polities. For instance, the former generally maintain strict (no-fault) liability, so that one (or one's kin group) is responsible for whatever damage one has caused, whether or not one is guilty of a wrong or of negligence. This, as Richard Posner argues, makes sense in economic systems where the cost of information is particularly high, so that long inquiries into circumstances and intentions would be problematic. In the same way, the fact that litigants are generally asked to pay for arbitrage, in other words to hire a judge, makes sense as there is no institution for the public provision of magistrates (Posner, Reference Posner1981).

Economic efficiency can certainly account for specific differences between the legal norms of various places, but it seems insufficient to explain the common features of these systems and the ways in which people generally find them compelling (Cosmides and Tooby, Reference Cosmides, Tooby, Gigerenzer and Engel2006). This is particularly clear in the domain of criminal justice, where apparently obvious features of institutional arrangements are based on complex intuitive assumptions about behavior, intentions and fairness.

Relevant cognitive systems

In the last 20 years, convergent findings in developmental psychology, behavioral economics and cross-cultural psychology have suggested that human beings in very different groups evaluate the moral valence of actions on the basis of largely tacit, emotion-laden common intuitions (Haidt, Reference Haidt2007). Intuitive morality is independent from (and only partly affected by) explicit, culturally specific understandings of and teachings about right and wrong (Greene, Reference Greene and Carruthers2005). Intuitive morality also underpins a sense of fairness that is quite distinct from economic rationality (McCabe and Smith, Reference McCabe, Smith, Gigerenzer and Selten2001). Rather than survey these models and findings, we will only mention those points directly relevant to the issue of criminal behavior and appropriate punishment.

Human minds in a variety of cultural environments develop the following specific intuitive processes. First, there is a domain of moral principles and norms, distinct from other evaluative dimensions of action. Indeed, even preschool children have definite intuitions about the difference between moral rules and mere social conventions (Turiel, Reference Turiel and Bill1994). Second, the judgment that a behavior is permissible, commendable or wrong occurs as a fast, automatic consequence of representing the specific action and context. These intuitions may then be explicated, nuanced or (more rarely) reversed by explicit reasoning, but the latter is quite literally an afterthought – deliberate, slow and often produced in order to justify a pre-existing intuition (Haidt, Reference Haidt2001). Third, intuitive moral appraisals are generally accompanied by congruent emotions. Emotional appraisal is part of the processes leading to moral evaluation, which is why experimental manipulations of the emotion can trigger significant changes in moral judgment (Haidt, Reference Haidt2001). All this is particularly visible in young children's moral development. In contrast to the classical, Kantian picture of children gradually building moral understandings by acquiring more complex modes of reasoning (Kohlberg, Reference Kohlberg1981), experimental evidence suggests that moral development consists in the calibration of prior intuitions (Turiel, Reference Turiel2002).

Experimental evidence also shows that people are intuitively convinced that wrong behaviors vary in seriousness – that much is assumed by young children even for completely novel behaviors (Turiel, Reference Turiel2002). Another common intuition is that the punishment should fit the crime, as it were – such that a schedule of graded punishments is required (Nichols and Knobe, Reference Nichols and Knobe2007). Again, these thoughts are not entertained as the result of deliberate reasoning on moral matters, but as the intuitions that start the process of moral reasoning.

Another important aspect of moral intuitions is a motivation to punish norm violators, even in third parties who are not harmed by the transgression. This preference is not based on learning from trial and error, since the potential consequences of either punitive or non-punitive strategies are manifest only in the long run. Such punitive attitudes are universal in human groups and virtually non-existent in other animals. There are various interpretations for this evolutionary novelty. Punitive sentiments may have helped recruitment to collective action (Yamagishi, Reference Yamagishi, Liebrand, Messick and Wilkie1992). They may also signal cooperative attitudes, as those who punish transgressors are signaling their attachment to local norms and their willingness to incur costs in their defense (Fessler, Reference Fessler, Gigerenzer and Selten2001), which would explain why people tend to be more punitive when observed by others (Kurzban et al., Reference Kurzban, Descioli and O'Brien2007). Finally, punitive attitudes may be an attempt to eliminate the fitness advantage enjoyed by free-riders (Price et al., Reference Price, Cosmides and Tooby2002) or recalibrate their motivations (Petersen et al., Reference Petersen, Sell, Tooby, Cosmides and Høgh-Olesen2010). What is certain is that the motivation for third-party punishment is general in human groups, and strong enough to override the cost involved.

An integrated perspective

In the same way as for marriage, evolved psychological capacities and processes constrain legal norms. They provide a set of understandings that need not be explicitly transmitted as a condition for participation, and therefore make institutions ‘learnable’ to the extent that they are congruent to intuitive understandings (Cosmides and Tooby, Reference Cosmides, Tooby, Gigerenzer and Engel2006). Legal institutions do not require that one learn concepts of right and wrong, the need for appropriate sanctions, or that one acquire the motivation for third-party punishment. Also, the ways in which legal institutions publicize decision making seems to derive from moral intuitions. As we noted, people have definite intuitions about the role of reputation in cooperation. It may be no surprise that legal institutions turn reasoning and decision making, ordinarily private mental events, into publicly scrutable processes. Courts work in the open, laws are inscribed in stone or in books, and penalties are made visible, for instance, by using stigma as a salient form of punishment (Kurzban and Leary, Reference Kurzban and Leary2001; Posner, Reference Posner2007). All these aspects of the law seem self-evident to most practitioners, as indeed they should be if they are based on common pre-existing intuitions.

In return, institutions do modify social interactions in the legal domain. Obviously, the existence of public representations of norms and processes makes punishment more predictable and the domain of lawful behavior more easily delineated, which translates as an advantage in transaction costs (Posner, Reference Posner1981). But the effects may be even deeper, as most people tend to reify or essentialize the law as independent from actual people's decisions and the workings of their minds. To the extent that the motivations for particular judgments seem both stable and impersonal, they reinforce this tacit form of legal idealism, a notion that laws are not made but discovered, which itself may make them more compelling.

Evolved systems as specialized learning and decision mechanisms

The perspective developed in relation to these three examples highlights how institutional designs are directly facilitated by the structure of human cognition. In this way, they complement the focus of previous accounts of the interplay between cognition and institutions. In the extant literature the focus has been on the general cognitive limitations of human cognition and how the latter affect the workings of institutions. One strand of argument has been preoccupied with how the fallibility of institutional designs can be traced back to the fallibility of the cognitive capabilities of their designers (Pierson, Reference Pierson2004). Another strand of research has focused on how institutions can buffer the limits of human cognition (Knight and North, Reference Knight and North1997). Hence, institutions – refined through trial and error – provide external constraints on behavior which simplify individual choice and guide it toward rational outcomes. A third strand of research has focused less on the limits of fixed cognitive processes but rather argued for the plasticity of cognitive processes and how they are moulded by the institutional environment of the individual (Dequech, Reference Dequech2006). While these avenues toward integrating insights on human cognition and institutions are highly important, they are based on an incomplete description of the current state of knowledge in cognitive science.

In our view, the content (and not just the limits) of a variety of special and species-typical cognitive systems, as observed by evolutionary anthropologists and psychologists, is relevant to issues of institutional design and maintenance. As we noted above, human beings have an intuitive mating psychology that includes attractiveness judgments, relationship maintenance and reproductive strategies (Symons, Reference Symons1979; Buss, Reference Buss1989). They have specialized social exchange mechanisms for cheater- and cooperator-detection (Cosmides and Tooby, Reference Cosmides and Tooby2005) and a highly specific moral psychology (Haidt, Reference Haidt2007). They also have a coalitional psychology which monitors the establishment and maintenance of groups with common interests, vigilance towards defection, rivalry towards other groups, etc. (Kurzban et al., Reference Kurzban, Neuberg and Buss2005), as well as systems that monitor ethnic cohesion and attitudes towards others (Schaller, Reference Schaller2006) or gender relations (Wilson and Daly, Reference Wilson, Daly, Barkow and Cosmides1992; Sidanius and Veniegas, Reference Sidanius, Veniegas and Oskamp2000). In fact, sketching the range of evolved cognitive mechanisms underlying common human behaviors would be far beyond the scope of this article (for general surveys, see Buss, Reference Buss2005; Dunbar et al., Reference Dunbar, Barrett and Lycett2005).

Several features of these cognitive systems are of particular relevance here:

1. Cognitive systems are domain specific. Cognitive predispositions are not just general constraints, for example, on the amount of material that can be acquired, on the capacity of attention and memory. Cognitive predispositions also consist in domain-specific expectations about the kinds of objects and agents to be found in the world. Only some items of information trigger operation of a specific system, in much the same way as only molecules of a particular shape and composition trigger the activity of specific enzymes (Barrett, Reference Barrett2005b). Many such narrow input–output relationships are species-typical fixations rather than plastic features that can be moulded by environmental processes (Tooby & Cosmides, Reference Tooby, Cosmides, Barkow, Cosmides and Tooby1992).

2. Each domain-specific system includes its own decision-making procedures. In most standard models of economists and political scientists, one assumes that people's behavior is guided by a domain-general, utility-maximizing cognitive system. In those cases in which human behavior does not conform to normative models, this is said to result from general limitations of the decision-making system, for instance because of biases (Kahneman et al., Reference Kahneman, Slovic and Tversky1982) or impulsiveness (Ainslie, Reference Ainslie2005; Loewenstein and O'Donoghue, Reference Loewenstein and O'Donoghue2005). These putative flaws in decision making are thought to be domain general – they would occur in the same way in, say, keeping friends and keeping lovers, avoiding enemies and avoiding pathogens. However, psychological evidence suggests a different picture, in which each domain-specific system (e.g., concerned with retaining mates, or with recruiting coalitional allies) comes with its own, domain-appropriate decision rules. For instance, if you are dealing with a contractor for house repairs, it may make sense to average the benefits and costs from previous interactions with that specific agent, in order to compute their overall value to you. If dealing with a lover, it would seem intuitively odd to balance cases of infidelity with cases of availability. Even when we use rules of thumb or ‘fast and frugal heuristics’, these are tailored to the kinds of problems we evolved to encounter (Gigerenzer and Todd, Reference Gigerenzer and Todd1999; Gigerenzer, Reference Gigerenzer2002).

3. Competencies and preferences are integrated. This is a consequence of the previous point. Each domain-specific cognitive system includes its own decision-making procedures which combine specific preferences and specific competencies. There is no reason to consider that preferences are external to decision-making systems. For instance, consider human coalitional psychology, our capacity to form an alliance with genetically unrelated agents, usually against other groups. It includes as part of a single package both a set of preferences (e.g., a strong aversion for other agents’ defection, a desire to make the coalition stronger, a willingness to pay a high price of entry, etc.) and a set of competences (e.g., the monitoring skills to detect other agents’ commitment, the signaling skills to express one's solidarity, etc.).

4. Cognitive systems are learning mechanisms. Each domain-specific system is specialized in picking up particular kinds of information in the organism's environment. Contrary to widespread assumptions outside evolutionary biology, ‘acquired information’ and ‘genetically specified information’ are not a zero-sum system. On the contrary, organisms that can acquire vast amounts of information from their environments (e.g., primates) need vastly more specified initial systems than organisms (e.g., invertebrates) that acquire less. Between species, more learning invariably means more ‘instinct’, so to speak. Humans have a complex coalitional psychology and a complex mating psychology, which means that in both domains they acquire enormous amounts of information from their social and natural environments precisely because sophisticated learning systems in these domains are specified by their genotypes.

Implications for interaction with environments

These features have a number of implications for the operations of human cognition which are highly important to institutional researchers. Here we focus on two implications. We begin by outlining them in relative broad terms, review some of the evidence for these implications in the cognitive science literature and then specifically apply them to institutional analysis.

1. Cognitive systems operate more reliably in matching environments. Cognitive systems are designed to operate within a specific domain and, therefore, the inbuilt assumptions, categories, competences and learning procedures reflect the evolutionarily recurrent structure of that exact domain. When cognitive systems are applied to problems on the fringes of their proper domain, they will operate less automatically and less reliably.

This has been directly shown in cognitive research. For example, we have evolved to hunt prey and protect ourselves against predators and, therefore, most probably have specialized cognitive systems designed to track the movements of animals, their orientation, and their most likely trajectory (Barrett, Reference Barrett and Buss2005a). In modern societies, predatory animals constitute less a threat than, for example, cars but this does not mean that we can effortlessly apply the systems designed for tracking the former to the latter. And, in fact, Joshua New et al. showed that subjects are far slower to recognize changes in car orientation than the orientation of animals – even when these animals are visually unfamiliar, unimportant, and barely discernible animals (New et al., Reference New, Cosmides and Tooby2007).

Similarly, we detect violations on rules faster and more reliably when detecting violations corresponds to detecting cheaters on social exchanges (Ermer et al., Reference Ermer, Cosmides and Tooby2007). As argued above, rule violation in the context of social exchange is the exact domain of a set of highly specialized cognitive systems while, most likely, generic rule violations are not. This insight is also directly applicable to actual design situations. Human–computer interfaces require much less effort on behalf of the user if these interfaces correspond to the structure of cognitive systems designed for handling real-world objects (Nørager, Reference Nørager, Høgh-Olesen, Tønnesvang and Bertelsen2009).

2. The structure of cognitive systems creates a baseline motivation to shape environments into a format that matches them. Because environments that fit our cognitive systems can be processed effortlessly (given the possibility for reliably applying evolved categories, competences, etc.), people will find matching environments more ‘natural’ and their exigencies more compelling. Also, creating and upholding non-matching environments require a level of effort that individuals could be unwilling to pay without special incentives.

Again, a number of studies in cognitive science have directly demonstrated this. Most of these studies have focused on an extreme version of the above principle, in the sense that these studies have shown that we simply process and react toward non-matching environments as if they were matching. In the domain of popular culture, one obvious example is pornography that is psychologically represented as if mating opportunities were present, thereby triggering sexual arousal, etc. (Saad and Gill, Reference Saad and Gill2000). Similarly, research shows that people have difficulties in distinguishing between their real friends and people they see on television in the sense that their satisfaction with their friendships is influenced by both (Kanazawa, Reference Kanazawa2002). These cognitive effects also occur in the direct interaction with others. For example, modern individuals process the anonymous one-shot interactions of mass society (an evolutionary novel phenomenon) as if they were of the iterated kind to which we have most probably adapted (Price et al., Reference Price, Cosmides and Tooby2002; Hagen and Hammerstein, Reference Hagen and Hammerstein2006).