The Law of Good People: Challenging States’ Ability to Regulate Humane Behavior (Introduction) CUP 2018

43 Pages Posted: 3 Dec 2016 Last revised: 19 Aug 2018

See all articles by Yuval Feldman

Yuval Feldman

Bar-Ilan University - Faculty of Law

Date Written: June 7, 2018

Abstract

Plato has famously argued that “laws are made to instruct the good, and in the hope that there may be no need of them; also, to control the bad, whose hardness of heart will not be hindered from crime". The premise of this book is that “good” people do need laws, but with a different regulatory framework. For the law to be able to operate effectively and lead to behavioral change, it needs to understand why “good” people engage in wrongdoing and disobey the law. Yet, even today, the law’s main purpose is understood as protecting others from the actions of “bad” people. In contrast, this book argues that it is “good” people (more accurately, those who think of themselves as good people) whose behavior should occupy more of the attention of the law. While, for understandable reasons, the legal system is primarily focused on the upper tail of the distribution of misconducts, in fact, most misconducts – those acts we refer to in the book as ordinary unethicality – are actually found in the middle of that curve. In such contexts, the law requires a new understanding of people's ethical motivation and self-awareness and consequently a modified set of regulatory and enforcement tools from those used to prevent deliberate misconducts. Based on the findings of Behavioral Ethics, a research area which by and large was ignored by the law, this book argues that ordinary unethicality is the most common and relevant type of behavior that legal policy makers fail to regulate. Acts of ordinary unethicality are part of most private law disputes in areas such as contract breach, tortious interference, and lack of respect for people’s property rights. In addition, much of people’s misconduct in public law, such as tax law, administrative law, and corporate law, could be attributed to a set of ethical biases such as ethical dissonance, motivated reasoning and self deception, which make it hard for people to evaluate accurately the legal and ethical meaning of their own behavior. The book examines the effectiveness of various regulatory tools in preventing people from engaging in uncooperative behaviors and wrongful conducts, such as engaging in corruption and employment discrimination and eschewing professional duties. More specifically, it compares the impact of traditional methods, including deterrence, social norms, morality and procedural justice that focus on peoples' motivation, with that of less traditional enforcement mechanisms, such as ethical nudges, framing, and debiasing which focus on people's level of self-awareness to their own unethicality. The book discusses the pros and cons of these various intervention mechanisms in the context of ethical behavior, drawing practical conclusions for legal policy makers on how to optimize their regulatory and enforcement effects on both the deliberative and non-deliberative components of unethical behavior.

Keywords: Behavioral Ethics; Regulation; Enforcement; Compliance; Behavioral Economics; Deterrence

JEL Classification: C91; D01; D23; K42; P37

Suggested Citation

Feldman, Yuval, The Law of Good People: Challenging States’ Ability to Regulate Humane Behavior (Introduction) CUP 2018 (June 7, 2018). Cambridge University Press (2018) ; Bar Ilan University Faculty of Law Research Paper No. 18-02. Available at SSRN: https://ssrn.com/abstract=2877791 or http://dx.doi.org/10.2139/ssrn.2877791

Yuval Feldman (Contact Author)

Bar-Ilan University - Faculty of Law ( email )

Faculty of Law
Ramat Gan, 52900
Israel

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