Legal Design for the 'Good Man'
65 Pages Posted: 10 Jan 2017
Date Written: 2016
Consequentialist analysts of legal rules tend to focus their attention on Holmes’s “bad man,” who conforms to legal rules only out of fear of legal sanctions. On this view, legal rules should be designed to give self-interested legal subjects sufficient reason to choose socially optimal actions. But many people conform to legal rules simply because they are the rules, even when their self-interest dictates doing otherwise.
At first glance, this focus on the bad man seems to make sense. Lawmakers, it is plausible to suppose, don’t have to worry about the “good man” when designing legal rules because he will do what they want him to do anyway by conforming to the law. In other words, good man analysis of law is simple and so can be safely ignored.
But good man analysis of law is much more complex than scholars have previously supposed, and ignoring the good man will therefore lead consequentialist lawmakers to err. People are motivated to comply with legal rules for various different kinds of reasons, and this variety matters for their behavior by affecting both their short-run responses to legal rules and their long-run attitudes towards the law. A lawmaker ought to design legal rules in a way that attends to this variety if her aim is to design socially optimal rules.
This Article systematically analyzes the problem of legal design in the face of the diversity of motivational types that exist in the population of legal subjects. Part I develops a typology of good persons by exploring the causes and consequences of legal norm internalization—the ways in which a person’s preferences are transformed such that he comes to value complying with legal rules for the sake of the rules. Part II argues that a good person’s type matters for his behavior in a number of important ways. For example, it affects the way in which he chooses among actions that conform to legal norms and the ways in which he responds to the various kinds of uncertainty to which the legal system exposes him. Part III derives normative implications of my analysis for consequentialist lawmakers, while also addressing the converse worry that good man analysis of law is too complex to be tractable. The overall aim is to systematically examine the ways in which a diversity of motivations in the population complicates the problem of legal design for legislators, judges, and administrative officials, and to develop an organizing framework that can be used to think about the problem rigorously, which I illustrate by exploring some examples.
Suggested Citation: Suggested Citation