How Good Laws—and good social norms—Make Good People

At PrawfsBlawg, they’re having a discussion of Lynn Stout’s Cultivating Conscience: How Good Laws Make Good People (2010): here, here, here, here, here, and here. The Princeton University Press webpage for the book introduces us to its central argument:

Contemporary law and public policy often treat human beings as selfish creatures who respond only to punishments and rewards. Yet every day we behave unselfishly--few of us mug the elderly or steal the paper from our neighbor’s yard, and many of us go out of our way to help strangers. We nevertheless overlook our own good behavior and fixate on the bad things people do and how we can stop them. In this pathbreaking book, acclaimed law and economics scholar Lynn Stout argues that this focus neglects the crucial role our better impulses could play in society. Rather than lean on the power of greed to shape laws and human behavior, Stout contends that we should rely on the force of conscience.

Stout makes the compelling case that conscience is neither a rare nor quirky phenomenon, but a vital force woven into our daily lives. Drawing from social psychology, behavioral economics, and evolutionary biology, Stout demonstrates how social cues--instructions from authorities, ideas about others’ selfishness and unselfishness, and beliefs about benefits to others--have a powerful role in triggering unselfish behavior. Stout illustrates how our legal system can use these social cues to craft better laws that encourage more unselfish, ethical behavior in many realms, including politics and business. Stout also shows how our current emphasis on self-interest and incentives may have contributed to the catastrophic political missteps and financial scandals of recent memory by encouraging corrupt and selfish actions, and undermining society's collective moral compass.

I’ve yet to read the book, so I can’t make any substantive comments on its thesis, although I’m predisposed to view it with favor, at least I think I understand the animating motivation for the argument. And I won’t in this post address the question of “how good laws (and good social norms) can make good people.” In any case, the emphasis in “law and economics” scholarship “on self-interest and incentives” has long been troubling, and Amartya Sen, among others, has critiqued the psychological assumptions behind homo economicus, while S.M. Amadae, again among others, has critiqued “rational choice theory” as conventionally employed in the social sciences: neither Sen nor Amadae are cited in the book. So while economists and philosophers have addressed some of the moral, psychological, and general normative assumptions that come with neo-classical economics, the problems intrinsic to “law and economics” as an area of legal study are not all found on the right side of the conjunction, for the other half of this cross-disciplinary enterprise—law—is routinely construed in strongly positivistic and instrumentalist terms (or, at best, in utilitarian fashion), which only compounds the problem.

But the questions I want to focus on concern the reliance on “conscience” to transform various areas of the law and the legal system generally. In one sense, Stout’s thesis may be judged too modest in aim and aspiration, particularly considered in comparison with the potential for the natural law tradition to reform or radically alter our laws and the attitudes of citizens to their legal system in a democratic constitutional polity. In a future post, I’ll attempt to outline the potential for the natural law tradition and aretaic legal theory to demonstrate the manner in which “good laws (and good social norms) can make good people” (and how good people may be necessary to make good laws).

The part played by conscience in our social and political life is typically circumscribed by the power of the moral no: the ethical refusal to engage in some enterprise, to perform some act, to behave in some morally repugnant manner, or to call attention to some egregious moral violation on the part of the government or some powerful institution in civil society. To invoke the call of conscience means to stand alone or apart for the sake of a fundamental or moral value or principle of ethics, grounded in the basic exercise of moral discrimination through a sacred right of refusal (hence, the ‘voice within,’ the ‘inner light’). Stout defines conscience as an “internal force that inspires unselfish, prosocial behavior,” but this definition is misleading if we consider how individual conscience is typically intended as a defense against the group. Of course the individual taking a stand on the promptings of conscience may inspire group or collective action of some sort, and those who take stand on the basis of a claim of conscience are seeking recognition by others of some moral truth or truths they see more clearly and urgently than the rest of us (what Vischer terms the ‘relational dimension’ of conscience’). But it strikes one as strange to make the inspiration of “prosocial behavior” an essential part of the meaning of the concept. I don’t mean to dismiss or diminish the power and importance of conscience, but I’m inclined to see it primarily as negative in scope, and thus restricted to an ex post rather than ex ante orientation. Consider, for example, how the notion of conscience did not assume its modern meaning until late in the eighteenth century (the seeds for the concept were sown as far back as Sophocles, Euripides, Socrates, and the Stoics in the West), when individuals invoked the claims of conscience as a viable substitute for identification with sectarian religions.

The individual orientation of what Gandhi called the “Court of Conscience” and the “still small voice within,” is best seen from the vantage point of moral psychology as a developmental outcome, so much so that we take its presence as indicative of moral individuation and moral autonomy. Conscience, on this view, is thus not something one has ready-at-hand upon reaching the age of reason, for it is a potential or capacity that needs to be awakened and nurtured, in Gandhi’s words, it is “the ripe fruit of the strictest discipline.” In other words, it seems hard to believe that conscience today is, as Stout says, “a vital force woven into our daily lives,” a claim not rendered true by the sheer volume of claims of conscience in our society. This should certainly give one pause in imagining anything like a well-honed conscience (to mix metaphors) as deeply ingrained and widespread throughout society. The individuality of conscience combined with its role in the courageous or uncommon expression of warnings or admonitions or refusals—the power of no—does not appear to make it well-suited for the role Stout intends for it. To complicate matters yet further, Rob Vischer has recently noted that, “[i]ncreasingly the individual who invokes conscience is opposed not by the state, but by the similarly conscience-driven claims of other individuals and groups.” For better and worse, in the era of “rights claims,” invocations of conscience may come too easy, reflecting a conspicuous lack of the kind of cultivation and training Gandhi thought absolutely necessary to the exercise of true conscience.

There is one glaring exception to the picture of conscience I’ve sketched here and that comes, oddly enough, from Gandhi himself. Gandhi’s conscience was atypical inasmuch as his “inner voice” also came in the form of “positive guidance.” Closer to the role Stout would envisage for conscience, and unlike most of those who came before and after him in invoking claims of conscience, Gandhi’s “stress on individual conscience” was wedded to a “program of mass action,” for he in fact made conscience “the basis of all social and political action.” It’s hard to imagine, however, more than a few individuals capable of conjoining the roles of saint and revolutionary in the manner exemplified my Gandhi.

At a later date I hope to show why I think aretaic legal theory and the natural law tradition are better suited to the sorts of tasks Stout imagines for conscience, as a “tool or weapon,” in transforming our laws and the legal system.