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

Date19 May 2009
Published date19 May 2009
AuthorJune Carbone,Naomi Cahn
June Carbone and Naomi Cahn
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
Copyright r2009 by Emerald Group Publishing Limited
All rights of reproduction in any form reserved
ISSN: 0193-5895/doi:10.1108/S0193-5895(2009)0000024012
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
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
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).
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),
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).
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

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