Might Cultivating Conscience Perpetuate Injustice?

Was this book written especially for me? 

I’ve had that thought before: reading, say, The Catcher in the Rye at age 14 and sensing something very familiar in Holden Caulfield’s voice, almost feeling it in my own throat.  But it is rare these days—especially when I’m flipping pages in my capacity as a law professor.  The type of research I do (at the intersection of law and psychology) and the way I teach courses like business organizations (offering up and then tearing down a neoclassical economic perspective) leave me sometimes feeling a bit out on my own.

Lynn Stout’s new book, Cultivating Conscience, however, suggests that I’m not as alone (or crazy) as I might sometimes fear.

On nearly every page of the book, I came across something that I have taught in one of my classes, written about, or pondered in a quiet moment.  I, too, have drawn insights from the work of Stanley Milgram in my scholarship, delved into research on why people “cheat” with my students, and wandered into the worlds of game theory and evolutionary psychology.  I share many of the conclusions that Stout draws, from those at the core of the book’s message (e.g., “Outside anonymous markets . . . the assumption of rational selfishness may be of questionable value in helping us address social problems like failing schools, rising crime, poor medical care, political corruption, or CEO malfeasance.” (246)) to those that are slightly more peripheral (“[W]e should have different legal rules for natural persons and for corporations.” (171)). 

Yes, I am somewhat biased, but I feel confident that even with a truly objective pair of eyes, I would have reached the same ultimate judgment: this is an important book of significant and lasting value.  It is thought-provoking, nimble, and engaging.  The writing is sharp and the examples are lively (e.g., I particularly liked the notion that “litigation in relational contract cases” can resemble “the medieval practice of trial by combat” (182)).  I suspect that even those who come to Cultivating Conscience as deep skeptics will find it to be a rewarding read.  It’s worth us all spending more time to consider the incongruity between the rational actor model and how real humans behave, the incredible power of conscience on our actions, and the ways in which “unselfish prosocial behavior” may be encouraged in society.

Perhaps because I feel so close to a lot of the material, I did occasionally disagree with Stout on small matters.  For instance, I think at points, the law and economics movement is portrayed as more homogeneous than it actually is (e.g., as I’ve suggested with Jon Hanson, even at its origin, Guido Calabresi and Richard Posner offered quite different paths forward) and occasionally the economic arguments are depicted as more flimsy than they actually are (e.g., I don’t think that punitive damages pose as significant a challenge to deterrence theory as Stout implies when one factors in the probability of a harm being detected).  At other points, I think Stout might have pushed harder on why law and economics has been so dominant in legal academia over the last few decades.  She is right to focus on its “appealing scientific patina” (44) and the fact that people “tend not to notice unselfish prosocial behavior” (44) (which might undermine the rational actor model), but it might have been worth also emphasizing more directly that law and economics provides a vision of ourselves that is both intuitive and affirming, that it is a model that benefits those at the top of society, and that it has been actively promoted by those both outside academia (e.g., think tanks like the American Enterprise Institute) and within (e.g., through the Olin Foundation, which has donated millions of dollars to top law schools to support scholars in this area).

These minor points to the side, I think that Stout’s overall message is compelling: “the homo economicus model is not the only model of human behavior that should be taught. . . . [and] material incentives are not the only tools we should use to change behavior . . . .” (252)  I could not agree more. 

Given my strong affinity for Cultivating Conscience, it is, thus, rather difficult to provide the grist for a good blog discussion.  I think Stout has hit the nail squarely on the head and I don’t want to distract from my overall message: this is a great book.

That said, if I were to choose one area where I think Stout and I might diverge on a more fundamental level, it’s my concern that cultivating conscience might not actually promote fairness and justice.  My worry is that encouraging “unselfish prosocial behavior” may merely reinforce the status quo and protect the most privileged in society.

Take the story of Franco Gonzales, the man who returned $203,000 that he found in a bag that fell out of an armored truck.  Stout uses the example to open the book and returns to it at several points as an example of the marvelous nature of conscience.  She also uses Franco to show that a person can be moral and virtuous in one area of his life, and not in another: Franco, it turns out, is an immigrant, who is living illegally in the United States.  My initial reaction was to feel very heartened by Franco’s “moral” decision to return the money, but as I thought about it more I became unsure.  Does the moral dictate that Franco call the police and turn over the cash he found actually promote justice?  How about the moral dictate that he not enter the United States illegally or that, once there, he turn himself in to the authorities for deportation?  

It may have been conscience that prevented Franco from keeping the $203,000, but why was that the optimal or fair outcome for anyone other than the owner of the $203,000?  Franco was extremely poor (he was a dishwasher in a Chinese restaurant, with “little or no formal education or savings” (234)) and, if he had kept the money, we learn from Stout’s description, he would have sent a large chunk of the money to his “mother, who lived in a farming village in Mexico” (3) and worked as a house cleaner (234).  Given that the money fell out of an armored truck, it seems reasonable to assume that it belonged to a large bank, which was insured by a large insurance company.  A $203,000 loss to the bank or insurance company would have been nothing—a rounding error on the CEO’s salary—but for Franco and his relatives, it might have made all the difference in the world. 

Similarly, in Stout’s account, it should have been conscience that prevented Franco from illegally entering (and remaining) in the United States.  Indeed, if his conscience had been properly cultivated in this regard he wouldn’t have broken the law.  But would this be the just outcome? 

The definition of “unselfish prosocial behavior” is extremely malleably and, to a large extent, is set by those with power, wealth, and influence.  In a society with slavery, it can be “selfish antisocial behavior” to run away from your slave owner, depriving him of his property.  In a society in which women are second class citizens, it can be “selfish antisocial behavior” for a woman to drive a car, show her ankles, or go to college.  I don’t dispute Stout’s claim that “[j]ust as thin and fragile reeds can be woven together to make a basket that is strong enough to carry a heavy load, when many small acts of restraint and consideration on the part of many individuals are woven together, they form a peaceful and prosperous society.” (61)  The problem is that such a society may be deeply unjust and the basket weave itself may make it very hard for those born without rights, property, and respect to gain any of those things.  Indeed, it may be their own consciences that prevent those at the bottom from gaining equal footing.