Law's War with Conscience: The Psychological Limits of Enforcement

[A] bad man has as much reason as a good one for wishing to avoid an encounter with the public force, and therefore you can see the practical importance of the distinction between morality and law. A man who cares nothing for an ethical rule which is believed and practised by his neighbors is likely nevertheless to care a good deal to avoid being made to pay money, and will want to keep out of jail if he can. -Oliver Wendell Holmes1 [U]pon the stage of life, while conscience claps, let the world hiss! On the contrary if conscience disapproves, the loudest applauses of the world are of little value. -John Adams2 I. INTRODUCTION Over the past two decades, legal scholarship has shown a growing interest in the relationship between law and the human conscience. With the rise of the law and norms movement, scholars have begun to abandon Holmes's classic archetype of the "bad man"-for whom the law is no more than a system of external punishments and rewards-and instead explore the possibility that ethical and moral beliefs are affected by law. These scholars have recognized, as John Adams did, that an individual's normative commitments often provide a stronger bond than the constraints of law or society. They have accordingly set out to evaluate the law not merely as a method of deterrence, but also as a way to shape the moral codes of bad men for the better. This research has led some authors to conclude that the law can promote both deterrence and desirable moral commitments at the same time. If this is so, then legal enforcement can provide benefits twice over: it can compel bad men to forego their bad deeds (a la Holmes), while simultaneously molding individuals' internal preferences to make bad acts inherently less attractive. Under such a view, the "legalization" of morals would be a particularly effective tool for achieving compliance. This Article suggests that such a notion may be mistaken. Modern developments in psychology demonstrate that the hopeful assumption of synergy between law and morality, while a step forward from the immutable Holmesian "bad man," remains an incomplete picture of law's influence. Indeed, acting upon such an assumption may undermine the very compliance that the law seeks to promote. Drawing on psychological research-in particular, "cognitive evaluation theory" (CET)-this Article offers a model of legal influence that reveals the often-hidden tension between society's attempts to promote a common morality and its attempts to enforce a legal regime. Contrary to a substantial portion of the law and norms literature, this model predicts that society may face an unenviable choice between enforcing a desired behavior through state sanctions and cultivating that behavior through moral commitments, because the former technique will work to the detriment of the latter. As a result, legal enforcement may produce a weaker effect than traditional cost-benefit analysis would suggest, and in extreme cases may even increase society-wide deviance.3 Part II locates the Article's theoretical model within the current law and norms debate. It describes the work of scholars who have suggested a positive relationship between law and normative commitments, as well as the theories of skeptics who have taken the opposite view. Both of these perspectives contribute certain elements to the Article's model, and Part II serves to illuminate those contributions while distinguishing the new model from those that have preceded it. Part III defines the contours of CET and builds the Article's model accordingly. The Part begins by briefly examining the studies supporting cognitive evaluation theory. It then sets forth the simple cost-benefit analysis typically used to predict the law's effect on individual choice, and expands that model to consider how first-party normative commitments can encourage or discourage compliance. The result is a new model that can account for the psychological interaction between law and first-party norms, offering a fuller picture of individual decisionmaking that incorporates not only external incentives, but also law's effect on the internal pangs of conscience. …