Preferences Change & Behavioral Ethics: Can States Create Ethical People?

Forthcoming, 22(1) Theoretical Inquiries in Law (2021)

Symposium on “How Law Changes What You Want” Honoring the Scholarship of Robert D. Cooter, 2020

Bar Ilan University Faculty of Law Research Paper No. 21-14

18 Pages Posted: 1 Oct 2020

See all articles by Yuval Feldman

Yuval Feldman

Bar-Ilan University - Faculty of Law

Yotam Kaplan

Bar-Ilan University - Faculty of Law

Date Written: August 17, 2020

Abstract

Law and economics scholarship suggests that, in appropriate cases, the law can improve people’s behavior by changing their preferences. For instance, the law can curb discriminatory hiring practices by providing employers with information that might change their preferences towards discriminatory hiring. Supposedly, if employers no longer prefer one class of employees to another, they will simply stop discriminating, with no need for further legal intervention. The current paper adds some depth to this familiar analysis by introducing the insights of behavioral ethics into the law and economics literature on preference change. Behavioral ethics research shows that wrongdoing often originates with semi-deliberative or non-deliberative cognitive processes. These findings suggest that the process of preference change, through the use of the law, is markedly more complicated and nuanced than previously appreciated. Thus, for instance, even if an employer’s explicit discriminatory stance is changed, and the employer no longer consciously prefers one class of employees over another, discriminatory behavior might still surface if it originates with semi-conscious, habitual, or non-deliberative decision-making mechanisms. Therefore, actual change in behavior might necessitate a close engagement with people’s level of moral awareness. We discuss the institutional and normative implications of these insights and evaluate their significance for the attempt to improve preferences through the different functions of the legal system.

Keywords: preferences; intrinsic motivation; compliance; social norms

JEL Classification: D03; K42; K00

Suggested Citation

Feldman, Yuval and Kaplan, Yotam, Preferences Change & Behavioral Ethics: Can States Create Ethical People? (August 17, 2020). Forthcoming, 22(1) Theoretical Inquiries in Law (2021), Symposium on “How Law Changes What You Want” Honoring the Scholarship of Robert D. Cooter, 2020, Bar Ilan University Faculty of Law Research Paper No. 21-14, Available at SSRN: https://ssrn.com/abstract=3675300 or http://dx.doi.org/10.2139/ssrn.3675300

Yuval Feldman

Bar-Ilan University - Faculty of Law ( email )

Faculty of Law
Ramat Gan, 52900
Israel

Yotam Kaplan (Contact Author)

Bar-Ilan University - Faculty of Law ( email )

Faculty of Law
Ramat Gan, 52900
Israel

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