This paper starts by reviewing empirical research that threatens law and economics’ initial success. This research has demonstrated that the functioning of the law cannot be well understood based on the assumption of the rational actor and that policies which are based on this assumption are likely to be flawed. Subsequently, three responses to this criticism are discussed. Whereas the first response denounces this criticism by maintaining that the limitations attributed to the rational actor can easily be incorporated in rational choice theory, the second response welcomes the criticism as an opportunity to come up with an integrative theory of law and behavior. The third response also takes the criticism seriously but replaces the aspiration to come up with such an integrative theory by a context-sensitive approach. It will be argued that the first two responses fall short while the third response offers a promising way to go forward.

This article critically evaluates the prevailing factor-oriented (e.g. a priori defined legal and extralegal characteristics of defendants) approach in analyses of judicial decision-making. Rather than assuming such factors, we aim to demonstrate how Dutch judges engage in interpretative work to arrive at various sentence types. In their interpretative work, judges attempt to weigh and compare various legal and extralegal features of defendants. Importantly, they do so in the context of the case as a whole, which means that these features do not have independent or fixed meanings. Judges select and weigh information to create an image of defendants’ redeemability. However, extralegal concerns other than redeemability also inform judges’ decisions. We argue that studying the naturally occurring interpretative work of judges results in a better understanding of judicial decision-making than outcome-oriented studies, which view criminal cases as collections of independent legal and extralegal factors.

This editorial offers an introduction to the current issue.

This article demonstrates on the basis of a representative survey among the Dutch population (N=1,892) that it is not necessarily politically ‘rightist’ or ‘conservative’ to resist the toleration of illegal activities (‘gedoogbeleid’). Even though, generally speaking, political conservatives are most likely to be critical, this is merely because they unconsciously associate the latter with practices of tolerating illegal activities by marginal individuals. Whereas conservatives hence oppose the latter more than political progressives do, the latter for their part are more critical than conservatives about tolerating illegal activities by official agencies. These findings illustrate that gedoogbeleid does not have a universal legitimacy in the eyes of the public, but that its legitimacy is determined case by case by the concrete aims and targets addressed by this policy instrument.