Academic journal article Washington and Lee Law Review

Shaping Responsible Behavior: Lessons from the AIDS Front

Academic journal article Washington and Lee Law Review

Shaping Responsible Behavior: Lessons from the AIDS Front

Article excerpt

I. Setting the Stage

Imagine that you are from the planet Saturn' and are visiting the United States on vacation. You are eager to figure out what makes these earthlings (or at least the subset homo sapiens americanus) tick. What matters to them? What thrills them? What troubles them? What moves them to action? What renders them mert? How do they deal with the stresses and strains of daily life? How do they sift through the ban-age of information that confronts them every day? How do they handle uncertainty? How do they deal with ambiguity? How do they address their conflicting needs and desires?

Because your time is limited, you decide that the quickest way to enter the species's psyche is to study its legal system. After all, it is well-known throughout the solar system that these creatures use the law as a principal means of articulating their values, resolving their conflicts, and controlling their behavior. Surely law must be a repository of wisdom about human nature!

What would you learn? What picture would emerge from such an exam mation? You most likely would conclude either that American homo sapiens are about as psychologically complex as garden slugs or that they are blessed with precious little self-understanding. In truth, our legal system does a poor job of reflecting our interior selves. It portrays us as psychological stick figures, lacking in color, texture, and dimension. And to the extent that the law does reflect a view about human nature,' that view is curious at best. It is curious because most legislative and judicial utterances imagine us to be stable, well-knit, fully self-aware creatures even though everyday experience reveals us to be mutable, loosely integrated, and internally opaque.' Similarly, the law suggests that we are, or at least ought to be, wholly rational beings even though we regularly acknowledge and even celebrate our nonrational side.'

When it comes to understanding the human subject, our legal system operates at a level of learning that we would never tolerate in politics or marketing. To call it unsophisticated is to be charitable. Moreover, we seem largely indifferent to the wealth of knowledge that the cognitive and behavioral sciences have accumulated steadily.' One well might ask why. Inertia is, of course, a force we should never discount, particularly in a system that prides itself on maintaining stability. Additional explanations are worthy of consideration.

To begin, perhaps we worry that it simply would cost too much to develop a more sophisticated understanding of human nature. Secondly, perhaps we also have doubts about how much better "better" can be. What benefits would flow from greater self-understanding, and are they worth the candle? A third possible explanation for our reluctance to ask hard questions about ourselves is that we doubt the legal system's capacity to handle human complexity. This is indeed a serious reservation, one to which I will return at this essay's end. Finally, perhaps we shy away from cognitive complexity because we fear that taking people as they truly are would undermine the law's capacity to resolve disputes expeditiously. According to this view, sometimes less is more or, at least, is faster.

Dispute resolution is not, however, the only end to which our system aims. We often are unsatisfied with reaching just any old outcome; we want to reach the right one. That is because we use the law as an instrument of social policy and view adjudication as a mechanism for achieving policy goals. That mechanism breaks down if we are indifferent to outcomes. If, for example, we are incapable of determining whether a particular incentive moves people to pollute less or to drive more carefully, we will be hardpressed to determine whether pertinent laws are working successfully.

Using law to regulate human behavior is not a recent invention. It has been with us from the beginning. Criminal law, for example, represents not just a means of punishing those who act in antisocial ways and of expressing society's condemnation of particular behavior;' it also constitutes an effort to deter others from misbehaving. …

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