An Interdisciplinary Analysis of the Use of Ethical Intuition in Legal Compliance Decision Making for Business Entities
50 Pages Posted: 21 Aug 2015 Last revised: 12 Nov 2015
Date Written: January 1, 2014
This article challenges the widely held view in legal education and in practice that what lawyers should be doing in providing legal advice consists solely of engaging in legal research and analytic reasoning. This article suggests that ethical intuition — i.e., the unconscious recognition that a specific action is good, evil, or morally neutral — may have a useful role to play in making legal compliance decisions for business entities.
Although largely ignored by the legal academy, scholars in numerous disciplines have acknowledged the role that intuition plays in decision making. Philosophers and religious scholars initially recognized the role of intuition in moral decision making centuries ago. Within the past few decades, neuroscientists have validated these theories through the use of various brain scan technologies, which show that humans often resort to intuition first when making moral decisions. Moral psychologists, behavioral economists, and other scholars have employed the work of neuroscientists to develop sophisticated models of moral decision making that better reflect how people behave when making moral decisions.
This article argues that ethical intuition can provide insights into the foundations of law, assist in discovering the law, and help to protect business entities because intuition can give insight into the legal and extra-legal punishments that may be visited upon a business entity as a result of its legal compliance decisions. This is not to claim that legal research and analytic reasoning should play no role in making legal compliance decisions for business entities. Exhaustive legal research should be at the heart of any legal compliance decision. Lessons from philosophy, neuroscience, moral psychology, behavioral economics, however, demonstrate that a dual process approach that incorporates both intuition and analytic reason is best for considering issues relating to a business entity’s compliance with the law. This article argues for such a dual process model approach to legal decision making and offers various methods for incorporating intuition into the legal compliance decision making process.
Keywords: Behaviorial Ecomics, Business Law, Compliance, Metaethics, Moral Psychology, Neuroscience, Neurolaw
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