Cultivating Conscience is a blistering attack on the "law and economics" school, which has had an enormous impact in the US legal academy. For Lynn Stout, professor of corporate and securities law at the University of California, Los Angeles, who also has a background in economics and public affairs, this movement is constructed around the notion of a world populated by members of the species Homo economicus, who act selfishly and rationally. "'Economic man' does not worry about morality, ethics or other people. He worries only about himself, calculatingly and opportunistically pursuing the course of action that brings him the greatest material advantage," Stout observes.
"Law and economics" is an approach familiar to readers of books such as Stephen J. Dubner and Steven D. Levitt's 2005 best-seller Freakonomics: A Rogue Economist Explores the Hidden Side of Everything. As against this deracinated and pessimistic view of human nature, Stout poses "conscience", or "unselfish prosocial behaviour". She believes conscience to be "a very real, very common, very powerful and very important phenomenon".
This is based, as she explains, not on anthropology, philosophy or even sociology, but on behavioural economics: the research technique known as experimental gaming that leads to a "rough working model of conscience" and shows that "the vast majority of people are willing to sacrifice to follow ethical rules and help others when the social conditions are right". It is, in other words, a "Jekyll/Hyde syndrome", in which people are selfish and unselfish in response to certain social cues. Stout identifies three such cues: instructions from authority; beliefs about others' unselfishness; and perceived benefits to others.
In the book's third part, Stout applies the resulting model to tort law (negligent accidents); contract law (enforcing contractual promises); criminal law (which deters theft, fraud, violence and mayhem); and to all other areas of law. The examples are all from the US, but are lucidly presented for an intended audience of non-lawyers as well as lawyers.
This is, of course, very much an American book, dealing with controversies in the US. But despite that focus, Cultivating Conscience is not only for a US readership: its clear and highly readable style, enlivened by real-life examples, also makes it accessible and of great interest on this side of the Atlantic. It may be read with profit in addition to the home-grown literature. The "law and economics" school, after all, has its followers as well as its critics throughout the common-law world. Moreover, it is not without UK roots, particularly in the work of British-born economist Ronald Coase, which was taken up in the US by "law and economics" proponents such as Richard Posner.
While Cultivating Conscience is lucid and stimulating and Stout's critique of the "law and economics" movement is vigorous, her central concepts of conscience and unselfish prosocial behaviour, are, for this reviewer at least, distinctly under-theorised. The question of normativity, or its absence, in the world may in the end be a question of politics; and politics is not to be found in Stout's polemic.
Cultivating Conscience: How Good Laws Make Good People
By Lynn A. Stout. Princeton University Press. 328pp, £19.95. ISBN 9780691139951. Published 16 November 2010