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Tuesday, January 31, 2012

Matt and Molly on Conscience

I enjoyed Matt's and Molly's observations, but can't resist offering one of my own: both seem to suggest that conscience is, in fact, a pretty obvious foundation for law.  (Matt has a wonderful example of the good faith principle in contracting, Molly points out--quite correctly--that the social and behavioral science literature on prosociality is immense.)

So, why do we see so little explicit discussion of the role of prosociality in modern legal scholarship?  Of course some people incorporate the idea into their writing, especially in more philosophical discussions.  And Matt is correct that in what I always thought were relatively rare situations--like Posner's opinion on the good faith principle--even law-and-economics types give the nod to the possibility people don't always, and shouldn't always, act selfishly.

But my own impression is that when the rubber meets the road, policy-wise, we see today a very strong tendency to default to the "all we need to do is fix the incentives" approach.   Of course, I may be over-sensitive to this pattern,writing as I do primarily in business and regulatory law, where homo economicus seems to reign supreme. 

Was I wasting my time writing a book trying to draw attention to the topic of prosocial behavior (conscience)?  Blawg readers are invited to respond...


Posted by Lynn Stout on January 31, 2012 at 08:51 PM | Permalink


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I don't think there is a contradiction between (1) recognizing that "people don't always, and shouldn't always, act selfishly" and (2) focusing on people who act selfishly "when the rubber meets the road, policy-wise." And I don't think this is the product of law-and-economics thinking, as such. Madison captured the essential insight more than two centuries ago, when he said that if men were angels, government would not be necessary. Some men are angels, but they are not the ones we need government to focus on, policy-wise. That doesn't mean your book is a waste of time, especially because your title is about "cultivating" conscience, not simply about recognizing when it already exists. But to the extent that you are motivated by what you see as a contradiction, I think the contradiction is a false one.

Posted by: TJ | Jan 31, 2012 9:32:47 PM

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