On his book The Law of Good People: Challenging States' Ability to Regulate Human Behavior
Cover Interview of January 30, 2019
In a nutshell
We have a misconstrued perception of who the “bad guys” are.
In reality, (almost) all of us are violators of laws, regulations, contracts,
and ethical norms. Various studies on the causes of such “ordinary unethicality,”
including insurance fraud, employee theft, and tax evasion, suggest how
prevalent, mindless, and sometimes banal wrongdoing can be. Acts of ordinary
unethicality appear in private law disputes involving breach of contract,
tortious interference, and lack of respect for people’s property rights. Much
of the misconduct within the sphere of tax law, administrative law, and
corporate law also involves this kind of moral transgression.
Behavioral ethics, a growing area within psychology and
management, attempts to explain why ordinary unethicality is so prevalent. Behavioral
ethics demonstrates that an individual’s unethical behavior can be explained
through numerous processes such as self-deception, ethical fading, motivated
reasoning, ethical dissonance, and moral disengagement. Since many of these
mechanisms are only partially related to people’s deliberative reasoning, people
still consider themselves good people even when they break legal or moral
norms. From the perspective of the state, when people think about themselves as
good people, much of the power of the traditional legal compliance mechanisms,
which rely on incentives, fairness, transparency, and expressive values, is
curtailed.
Despite this overwhelming evidence, to a large extent,
current laws inspired by political theories such as Bentham’s still treat
wrong-doers as deliberative individuals who abstain from socially undesirable
behaviors only because of the expected costs associated with wrong-doing. Even
when we move beyond theories of deterrence, the current dichotomy between
people who obey laws for extrinsic reasons and people who obey laws for intrinsic
reasons, misses a third and important category of good people who don’t think
when they disobey a law or regulation, or violate other legal instruments, that
they are indeed in violation of the law.
What I argue in this book is that legal intervention is needed
to address the problem. How might good people be prevented from feeling
comfortable enough with their violations of the law? Without that change in
focus, we will miss many types of transgressions that happen not just due to
lack of motivation but also due to limited awareness of the legal and moral
character of such common behavior.
[T]he Holocaust transformed our whole way of thinking about war and heroism. War is no longer a proving ground for heroism in the same way it used to be. Instead, war now is something that we must avoid at all costs—because genocides often take place under the cover of war. We are no longer all potential soldiers (though we are that too), but we are all potential victims of the traumas war creates. This, at least, is one important development in the way Western populations envision war, even if it does not always predominate in the thinking of our political leaders.Carolyn J. Dean, Interview of February 01, 2011
The dominant premise in evolution and economics is that a person is being loyal to natural law if he or she attends to self’s interest and welfare before being concerned with the needs and demands of family or community. The public does not realize that this statement is not an established scientific principle but an ethical preference. Nonetheless, this belief has created a moral confusion among North Americans and Europeans because the evolution of our species was accompanied by the disposition to worry about kin and the collectives to which one belongs.Jerome Kagan, Interview of September 17, 2009
In a nutshell
We have a misconstrued perception of who the “bad guys” are. In reality, (almost) all of us are violators of laws, regulations, contracts, and ethical norms. Various studies on the causes of such “ordinary unethicality,” including insurance fraud, employee theft, and tax evasion, suggest how prevalent, mindless, and sometimes banal wrongdoing can be. Acts of ordinary unethicality appear in private law disputes involving breach of contract, tortious interference, and lack of respect for people’s property rights. Much of the misconduct within the sphere of tax law, administrative law, and corporate law also involves this kind of moral transgression.
Behavioral ethics, a growing area within psychology and management, attempts to explain why ordinary unethicality is so prevalent. Behavioral ethics demonstrates that an individual’s unethical behavior can be explained through numerous processes such as self-deception, ethical fading, motivated reasoning, ethical dissonance, and moral disengagement. Since many of these mechanisms are only partially related to people’s deliberative reasoning, people still consider themselves good people even when they break legal or moral norms. From the perspective of the state, when people think about themselves as good people, much of the power of the traditional legal compliance mechanisms, which rely on incentives, fairness, transparency, and expressive values, is curtailed.
Despite this overwhelming evidence, to a large extent, current laws inspired by political theories such as Bentham’s still treat wrong-doers as deliberative individuals who abstain from socially undesirable behaviors only because of the expected costs associated with wrong-doing. Even when we move beyond theories of deterrence, the current dichotomy between people who obey laws for extrinsic reasons and people who obey laws for intrinsic reasons, misses a third and important category of good people who don’t think when they disobey a law or regulation, or violate other legal instruments, that they are indeed in violation of the law.
What I argue in this book is that legal intervention is needed to address the problem. How might good people be prevented from feeling comfortable enough with their violations of the law? Without that change in focus, we will miss many types of transgressions that happen not just due to lack of motivation but also due to limited awareness of the legal and moral character of such common behavior.