Private Law Theory

ABSTRACT
In this article, we analyze whether, as some have claimed, the criminal and civil law alters fundamental preferences and conclude that it does not. Scholars have recently challenged the claim in classical deterrence theory that law influences behavior only through the expected sanction imposed. Some go farther and argue that law may also ‘shape preferences’, changing people’s fundamental wants and values. We first clarify this preference-shaping claim by elaborating the structure of rational choice theory generally and ‘preference’ in particular. We then investigate three mechanisms of legal influence suggested by the preference-shaping literature: (1) the ‘serious harm’ mechanism; (2) the ‘social norm’ mechanism; and (3) the ‘self-improvement’ mechanism. We then argue that each of these mechanisms operates by changing the agent’s beliefs about the attributes or consequences of her choice options rather than by changing her preferences.

Arlen, Jennifer and Kornhauser, Lewis A, Can the Law Change Preferences? (July 20, 2020).

First posted 2020-07-21 04:23:29