Law, Power and Behavior

Abstract:     
This paper argues that the contemporary treatment within moral, political and legal philosophy of the issue of the effective and proper constraint (and, ultimately, also, direction) of power suffers from an absence of engagement with the following question: what picture of behavior - of those in power - should we adopt in order to consider how it might be constrained and directed? It is argued that the absence of engagement with this question can be explained by the dominance of the rationalization of behavior, and the concomitant methodology of scrutinizing the role of rules in excerpts of short-term reasoning. The paper offers an overview of sources that can assist in providing an alternative picture of behavior. The paper is organized into three parts: the first considers the long-term development of perceptual and kinetic know-how; the second examines the social, institutional and community-based location of that know-how; and the third considers how the sources of the first two parts can help us in the necessary transition from an over-emphasis on legal language, to an emphasis on legal work. Combining all the elements together, legal work is defined as the institutional emergence of perceptual and kinetic know-how that necessarily accompanies the constraint - amassing and guidance - giving use of legal language. The emphasis on this picture of legal work can provide us with the tools that will not only allow us to design institutions and the resources used by legal officials to constrain the power exercised by them more effectively, but it will also allow us to consider what moral capacities we would like legal work to be informed by, and, equally, what kind moral institutional ways of life we might strive for. Those moral capacities and moral institutional ways of life, in turn, will have to be supplemented by a theory of social justice, the appropriate beginning of which is an understanding of how we can learn to see the great variety and pervasiveness of suffering and vulnerability. Only once we understand how we come to see suffering and vulnerability, can we consider how it will be appropriate to respond to it, i.e. to respond by considering what moral capacities are required to be exercised by officials, and how we might design our institutions so that they enhance moral institutional ways of life.

Keywords: Power, Behaviour, Legal Officials, Constraint, Direction, Reasoning, Rationalisation, Peceptual and Kinetic Know-How, Institutions, Communities, Suffering

JEL Classifications: K00

Working Paper Series