Behavioral biology, the rational actor model, and the new feminist agenda

• Pages: 189-235
• Date: 19 May 2009
• DOI: https://doi.org/10.1108/S0193-5895(2009)0000024012
• Published date: 19 May 2009
• Author: June Carbone,Naomi Cahn

BEHAVIORAL BIOLOGY, THE

RATIONAL ACTOR MODEL, AND

THE NEW FEMINIST AGENDA

June Carbone and Naomi Cahn

ABSTRACT

This chapter incorporates gender consciousness into critiques of the

rational actor model by revisiting Carol Gilligan’s account of moral

development. Economics itself, led by the insights from game theory, is

reexamining trust, altruism, reciprocity, and empathy. Behavioral

economics further explores the implications of a more robust conception

of human motivation. We argue that the most likely source for a

comprehensive theory will come from the integration of behavioral

economics with behavioral biology, and that this project depends on the

insights from evolutionary analysis, genetics, and neuroscience. Con-

sidering the biological basis of human behavior, however, and, realistically

considering the role of trust, altruism, reciprocity, and empathy in market

transactions requires a reexamination of the role of gender in the

construction of human society.

First, we revisit Gilligan, and argue that her articulation of relational

feminism faltered, in part, because she could not identify the source of the

stereotypically feminine. Second, we consider the ways in which the

limitations of the rational actor model meant that law and economics

could also not resolve the relational concerns that Gilligan raised. Third,

Law & Economics: Toward Social Justice

Research in Law and Economics: A Journal of Policy, Volume 24, 189–235

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ISSN: 0193-5895/doi:10.1108/S0193-5895(2009)0000024012

189

we discuss the rediscovery of gender that is emerging from the gendered

results of game theory trials and the new research on the biological

basis of gender differences. Finally, we conclude that incorporating the

insights of this new research into law and the social sciences will require

a new methodology. Instead of narrow-minded focus on the incentive

effects in the marginal transaction, we argue that reconsideration of

stereotypically masculine and feminine traits requires an emphasis on

balance.

1. INTRODUCTION

Law and the social sciences are on the brink of a paradigm shift. For the

past half century, imperial economics and the rational actor model have

dominated academic discourse. The model’s simplifying assumptions that

bracketed distributions of wealth and entitlements, assumed that preferences

were exogenously determined, and maintained that individuals acted to

maximize their own self-interest provided a powerful research tool.

Although economists have always recognized that the model did not

accurately describe human motivation, and whereas subsequent models

selectively relaxed the original assumptions, the basic model generated

predictions about the potential impact of proposed policies and served to

explain the limitations of command-control economics as communism and

socialism appeared to run their course. With the ‘‘fall of the wall,’’

Fukuyama’s celebration of ‘‘The End of History,’’ and globalization, the

final triumph of decentralization, autonomy, and markets appeared at hand.

Rather than assure the continued dominance of rational actor methodol-

ogy, however, the very success of deregulation and decentralization is

insuring its demise. The most interesting issues of the day, which once

focused on the structure of government, are today more focused on the

creation of markets and the role of culture. How do societies manage the

transition to freer markets and decentralized decision-making? What is

the minimum infrastructure necessary for a well-functioning society? Why

do some cultures, even within the same society, prosper more readily

than others? And perhaps most critically, how do societies instill habits

of honesty and trustworthiness that even Richard Posner (1998) sees as

enhancing the efficiency of markets?

In addressing these issues, more complex models of human motivation are

critical. Economics itself, led by the insights that have come from game

JUNE CARBONE AND NAOMI CAHN190

theory, is increasingly focused on examination of trust, altruism, reciprocity,

and empathy (Goodenough, 2008). Behavioral economics, which has been

defined as ‘‘the combination of psychology and economics that investigates

what happens in markets in which some of the agents display human

limitations and complications,’’ attempts to systematically address the

limitations of rational actor assumptions (Jolls, Sunstein, & Thaler, 1998).

Jolls et al. (1998) observe that the ‘‘unifying idea in our analysis is that

behavioral economics allows us to model and predict behavior relevant to

law with the tools of traditional economic analysis, but with more accurate

assumptions about human behavior, and more accurate predictions and

prescriptions about law.’’ As the number of exceptions to the assumptions

of rationality have multiplied, and as the issues of the hour make the

exceptions as, if not more, important than the rules, a multitude of

disciplines have joined the behaviorists in proposed alternative theories of

human motivation (Prentice, 2003).

1

These efforts – cumulatively – are on the brink of dethroning the rational

actor model altogether for a more robust theory of human motivation. We

argue that the most likely source for a new comprehensive theory is based

on the integration of behavioral economics with behavioral biology, and

that the success of this project, in turn, depends on the integration of the

insights that come from evolutionary analysis, genetics, and neuroscience.

Other work, and particularly Owen Jones’s careful and comprehensive

scholarship (Jones & Goldsmith, 2005), lays out the promise of behavioral

biology for law. In this chapter, however, we will place these developments

within biology and economics in a framework that shifts the focus of legal

discussion from the limitations of the regulatory state to the creation of

institutions, private and public, that effectively serve to instill norms and

coordinate human activity. In the process, we will argue that the new

paradigm and the research agenda that accompanies it will be greatly

enriched by a reconsideration of the importance of feminism.

‘‘Homo economicus’’ (Prentice, 2003),

2

that is, the simplified rational

actor, maximizes utility by focusing on a relatively narrow definition of self-

interest, one largely defined in terms of material well-being (see Posner,

1980;Kronman, 1980).

3

If there is to be an alternative paradigm, it is likely

to come from behavioral biology, which starts with Darwin’s assumption

that any adaptation that provides a better chance of replication is likely to

perpetuate itself (Jones, 1997;Dawkins, 2006). This analysis provides

information about the differing motivations that explain behavior which go

beyond assumptions concerning self-interest. Although the foundational

concept of the ‘‘selfish gene’’ might appear to support the rational actor,

Behavioral Biology, the Rational Actor Model, and the New Feminist Agenda 191