Chapter 1: The Law of Good People: Challenging Statess Ability to Regulate Human Behavior

Abstract

The focus of this book is on how governments may effectively use recent advances in the understanding of human behavior to guide their efforts to modify people’s behavior. To date, the insights of behavioral ethics that have completely revolutionized the business and management fields have yet to be applied in legal as well as governance research, especially in the context of legal enforcement. The growing recognition that misconduct can be facilitated by structural issues and is not just the product of a few “bad apples” has important implications for the design and fine-tuning of enforcement mechanisms. States need to modify their regulatory roles and functions based on the understanding that discrimination does not just stem from certain employers who hate minorities, that corruption is not just about greedy individuals, or that trade secrets are not just divulged for mercenary or revenge motives.This book argues that the good-people rationale—the idea that ordinary people could engage in all types of wrongdoing without being aware of the full meaning of their behavior—greatly complicates the regulatory challenge of states. Because of various psychological and social mechanisms that prevent people from recognizing their wrongdoing and encourage them to feel as if they are far more moral, unbiased, and law abiding than they actually are, individuals today are less likely to react to legal signals, which they view as directed to other, “bad” people. Similar self-serving mechanisms affecting their perception of social norms and fairness cause people to have very inaccurate views of the normative status of their behavior. Moreover, a great deal of uncertainty surrounds the good-people rationale. We do not yet know how “good” the good people are in terms of their awareness and ability to control their conduct. Nor can we quantify the ratio of good to bad people in society. Although we appreciate the need to address the misconduct of good and bad people differently, we do not know the costs of using the “wrong” intervention techniques to deal with various types of bad behavior. Bringing about the needed shifts in regulatory design first requires a shift in the behavioral analysis of law.