Some Thoughts on Lynn Stout's "Cultivating Conscience"

Lynn Stout’s book, Cultivating Conscience: How Good Laws Make Good People is a compelling account of the role that empathy and morality play in every day human interactions.  Stout’s argument, that people are motivated by more than personal gains and losses, is not groundbreaking.  Prominent thinkers in the fields of psychology, sociology, philosophy, and religious studies (to name of few) have been making this point for as long as these disciplines have been cognizable.  Literature is replete with examples of altruistic behavior (selfless acts of courage make for some of the greatest tales of all).  Even legal case books contain examples; who can forget the famous tort case, Eckert v. Long Island R. R. Co., 43 N. Y. 502 (1871) in which decedent plaintiff was killed attempting to rescue a small child from an approaching train.  I don’t believe that Stout would characterize her claim as novel.  The brilliance of the book is not in the novelty of the claim, but in the systematic and thoughtful way in which Stout demonstrates how the law and economics approach has hijacked our assumptions and methods in a variety of important areas—and how misleading and potentially destructive this approach has been. I don’t quibble with Stout’s evidence or application, and I see extensions of her work on several fronts. 

Although Stout cites various threads of empirical work, her primary evidence for the notion that people do not always act like law and economics’ rational maximizer comes from game research.   The game research paradigm involves placing participants in a variety of situations where they must decide whether to cooperate or refuse to cooperate in order to enjoy various payoffs.  This area of research is where Stout places most emphasis, and it has obvious and important implications for a discussion of pro-social human behavior, but it is only the tip of the iceberg.  In fact, social psychologist have been studying “pro-social,” “altruistic,” or “helping” behavior for decades.  So much has been done in this area that the Social Psychology Network page makes it one of the main headings, and a quick search of PsychArticles reveals more than 700 studies having one of those terms in the title (this probably underestimates the real number of research articles on pro-social behavior, and it certainly does not account for the file drawer studies that have never been published).  The very existence of this empirical social psychological literature is evidence in support of Stout’s claim that pro-social behavior is a real phenomenon.  The story Stout chronicles of the increasing prominence of rational choice theory reveals an intriguing lack of awareness, or near total disregard (depending upon your point of view) for behavioral research and theory.  When one considers the potential value of empirical psychology to the legal academy, the lopsidedness of the influence seems curious.  Even now, the appearance of empirical social science in law reviews is sporadic, and the research that gets the most attention is recycled again and again.  With any luck, Stout’s book will encourage law scholars and others to take a fresh look at the rich wealth of empirical research that has profound implications for legal structures, processes, and assumptions.

Stout is interested in showing not only that human beings behave in pro-social ways, but also that they often do so for other than mercenary reasons.  The heart of Stout’s argument is that people are programmed to care about others’ welfare, at least to some degree, in most circumstances.  Pro-social behavior is not, Stout argues, simply a function of protecting one’s reputation or amassing good will.  She points repeatedly to game experiments in which participants behaved in a cooperative or helpful way with other players, even when they were anonymous and even when they knew that the interaction would never be repeated.  In essence, Stout argues that most people (sociopaths aside) possess an innate pro-social drive.  A natural extension of her argument is a discussion of pro-social behavior toward non-humans.  Examples of self-sacrifice benefiting other species abound.  One has only to see the Humane Society’s televised pleas for money to be reminded that pictures of wounded dogs and cats get people to open their wallets.  Seeing images of injured and neglected animals seem to trigger feelings of compassion similar to that which you might expect in reaction to seeing starving or sick children (although perhaps to a different degree).  What explains the willingness of thousands of people to pay a premium for “dolphin safe” tuna?  Why do criminal codes contain prohibitions against the mistreatment of animals?  This point is not simply academic.  It illustrates to a broader sense of responsibility toward many forms of life, a kind of pro-living-thing instinct.  Just as Stout argues that attention to human conscience should inform policy decisions, mindfulness of the human instinct to preserve and protect other creatures—and possibly the natural world more generally—has important implications for environmental and land-use law.