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Published online by Cambridge University Press: 09 June 2015
Human reason is frequently frustrated. Efforts to act rationally—leave aside the fact that human beings are sometimes deliberately irrational—can be thwarted by a variety of obstacles and limitations. The fact that rationality often proves elusive ensures, among other things, that rationally-motivated courses of action sometimes have counter-productive consequences. Attempts to make certain goods and activities seem unattractive may lead people to be attracted to them. Endeavours to legislate in the public interest can sometimes make things worse for intended beneficiaries. Efforts at rational action, in short, can backfire.
1. See, in particular Elster, Jon, Ulysses and the Sirens: Studies in Rationality and Irrationality, 2d ed. ((Cambridge: Cambridge University Press, 1984);Google Scholar Sour Grapes: Studies in the Subversion of Rationality (Cambridge: Cambridge University Press, 1983); and Solomonic Judgements: Studies in the Limitations of Rationality (Cambridge: Cambridge University Press, 1989).
2. As examples, see Dresser, Rebecca, “Ulysses and the Psychiatrists: A Legal and Policy Analysis of the Voluntary Commitment Contract” (1982) 16 Harv. Civ. Rights-Civ. Libs. L. Rev. 777;Google ScholarPubMed and Sunstein, Cass R., “Endogenous Preferences, Environmental Law” (1993) 22 J. Leg. Studs. 217.CrossRefGoogle Scholar
3. For a study of this tradition, see Duxbury, Neil, Patterns of American Jurisprudence (Oxford: Clarendon Press, 1995 at 301–419.Google Scholar
4. See Elster, , Ulysses and the Sirens, supra note 1 at 126–27 and 133–46.Google Scholar
5. Consider, in this regard, the opening statement in the preface to Mansbridge, Jane J., ed., Beyond Self-interest (Chicago: University of Chicago Press, 1990),Google Scholar a book which contains contributions from various Chicago political scientists (including Elster) and which very much epitomises the Chicago political science tradition: “The essays in this book constitute a manifesto. They reject the increasingly prevalent notion that human behavior is based on self-interest, narrowly conceived. They argue for a more complex view of both individual behavior and social organization— a view that takes into account duty, love, and malevolence” (ix). The narrow conception of self-interest which is being rejected here tends nowadays to be associated most commonly with Chicago neo-classical economics.
6. See, for example, Sunstein, Cass R., After the Rights Revolution: Reconceiving the Regulatory State (Cambridge, MA: Harvard University Press, 1990).Google Scholar
7. All page references in the text are to this book.
8. “The world certainly has its share of Hamlets, Macbeths, Lears and Othellos. The coolly rational types may fill our textbooks, but the world is richer.” Sen, Amartya, On Ethics and Economics (Oxford: Blackwell, 1987) at 11.Google Scholar It is, of course, also the case—since fictional characters are so often devised to represent exaggerations of particular human traits—that literature and drama have their share of classic rational utility-maximisers See Krailsheimer, A.J., Studies in Selfinterest: From Descartes to La Bruyère (Oxford: Clarendon Press, 1962) at 212–13.Google Scholar
9. For some examples, see Gauthier, David P., ed., Morality and Rational Self-interest (Englewood Cliffs, NJ: Prentice-Hall, 1970;Google Scholar Hont, Istvan & Ignatieff, Michael, “Needs and Justice in the ‘Wealth of Nations’” in Hont, & Ignatieff, eds., Wealth and Virtue: The Shaping of Political Economy in the Scottish Enlightenm (Cambridge: Cambridge University Press, 1983) ch. 1;CrossRefGoogle Scholar Werhane, Patricia H., “The Role of Self-interest in Adam Smith’s Wealth of Nations” (1989) 86 J. of Phil. 669;CrossRefGoogle Scholar Shaver, Robert, “Hume’s Self-interest Requirement” (1994) 24 Can. J. of Phil. 1;CrossRefGoogle Scholar Green, Michele, “Sympathy and Self-interest: The Crisis in Mill’s Mental History” (1989) 1 Utilitas 259 at 266 et seq.;CrossRefGoogle Scholar Crisp, Roger, “Sidgwick and Self-Interest” (1990) 2 Utilitas 267.CrossRefGoogle Scholar
10. See, for example, Smith, Adam, An Inquiry into the Nature and Causes of the Wealth of Nations, Campbell, R.H. & Skinner, A.S. eds., (Oxford: Clarendon Press, 1979;Google Scholar orig. publ. 1776) vol. 1 at 540 (“The natural effort of every individual to better his own condition, when suffered to exert itself with freedom and security, is so powerful a principle, that it is alone, and without any assistance, not only capable of carrying on the society to wealth and prosperity, but of surmounting a hundred impertinent obstructions with which the folly of human laws too often encumbers its operations; though the effect of these obstructions is always more or less either to encroach upon its freedom, or to diminish its security”). The classic quotation from the Wealth of Nations, which tends to be offered in this particular context, is Smith’s observation that “[i]t is not from the benevolence of the butcher, the brewer, or the baker, that we expect our dinner, but from their regard to their own interest” (ibid., vol. 1 at 27). As Holmes recognises, however (see Passions and Constraint at 284 n.99), it is questionable whether this remark, when read in context, really does constitute an affirmation of universal self-interest. See further Werhane, supra note 9 at 673.
11. See Smith, Adam, The Theory of Moral Sentiments, Raphael, D.D. & Macfie, A.L., eds., (Oxford: Clarendon Press, 1976; orig. publ. 1790) at –90;Google Scholar Hume, David, A Treatise of Human Nature, Mossner, E.C. ed., (Harmondsworth: Penguin, 1969;Google Scholar orig. publ. 1739–40) at 667–70.
12. On this development, see generally Myers, Milton L., The Soul of Modern Economic Man: Ideas of Self-interest—Thomas Hobbes to Adam Smith (Chicago: University of Chicago Press, 1983).Google Scholar Myers contends that, for all of the seventeenth and eighteenth century writers on whom he focuses, “the universal or fundamental element in the personality of economic man… is self-interest. Whether economic man is the introspective Puritan, the extroverted man of the world, the cold calculator of gain, the conspirator, the manipulator, or even the primitive destroyer, his underlying motive is self-interest. Our writers have either placed this characteristic of economic man in the foreground of their comments or they have assumed it to be so obvious that they have handled it in an implicit manner”(26).
13. Hirschman, Albert O., The Passions and the Interests: Political Arguments for Capitalism before its Triumph (Princeton, NJ: Princeton University Press, 1977).Google Scholar
14. See, for example, Smith, Adam, Lectures on Jurisprudence, Meek, R.L., Raphael, D.D. & Stein, P.G., eds., Oxford: Clarendon Press, 1978; orig. publ. 1896) at 538–39.Google Scholar
15. Stigler, George J., The Citizen and the State: Essays on Regulation (Chicago: University of Chicago Press, 1975) at 40–41.Google Scholar See also Stigler, George J., The Economist as Preacher and Other Essays (Chicago: University of Chicago Press, 1982) at 119–59.Google Scholar
16. Such as, for example, Rawls. See Rawls, John, Political Liberalism (New York: Columbia University Press, 1993) at 50–51.Google Scholar (“Every interest is an interest of a self (agent), but not every interest is in benefits to the self that has it. Indeed, rational agents may have all kinds of affections for persons and attachments to communities and places… Rational agents approach being psychopathic when their interests are solely in benefits to themselves.”)
17. Coase, R.H., Essays an Economics and Economists (Chicago: University of Chicago Press, 1994) at 95.CrossRefGoogle Scholar
18. See, for example, Epstein, Richard A., “The Varieties of Self-Interest” (1990) 8 Soc. Phil. & Pol. 102.CrossRefGoogle Scholar
19. For further examples, see Schelling, T.C., “Egonomics, or the Art of Self-Management” (1978) 68 Papers and Proceedings of the American Economic Rev. 290;Google Scholar “The Intimate Contest for Self-Command” (1980) 60 The Public Interest 94.
20. See generally Elster, , Ulysses and the Sirens, supra note 1 at 36–111.Google Scholar
21. This insight is not, in fact, unique to Bodin. It rests also in Spinoza’s claim that God alone is free. See Spinoza, , Tractatus Politicus (1677), 7, 1:Google Scholar 1: “Even kings follow the example of Ulysses; they usually instruct their judges to have no respect for persons in administering justice, not even for the king himself, if by some odd mischance he commands something which they know to contravene established law. For kings are not gods, but men, who are often enchanted by the Sirens’ song. Accordingly, if everything depended on the inconstant will of one man, nothing would be stable.” Spinoza, Benedict de, The Political Works: The Tractatus Theologico-Politicus in Part and the Tractatus Politicus in Full, Wernham, A.G., ed. and trans. (Oxford: Clarendon Press, 1958) at 335.Google Scholar
22. Elster, , Ulysses and the Sirens, supra note 1 at 93.Google Scholar
23. Ibid. at 94.
24. See Oakeshott, Michael, On History and Other Essays (Oxford: Blackwell, 1983) at 17–44.Google Scholar Consider also Spinoza, Tractatus Politicus, 1,6: “[I]f a state is to be capable of lasting, its administration must be so organized that it does not matter whether its rulers are led by reason or passion—they cannot be induced to break faith or act badly.” Cited from Spinoza, The Political Works, supra note 21 at 265.
25. For this claim, see Parker, Richard D., “Here, the People Rule”: A Constitutional Populist Manifesto (Cambridge, MA: Harvard University Press, 1994).Google Scholar
26. In this regard, his work differs, I think, from that of Elster, who is careful to identify the disanalogies between social decision-making and individual choice. See Elster, , Solomonic Judgements, supra note 1 at 181.Google Scholar 181. (“Individuals, like polities, often do not know what they want; or do not know what they know; or fail to do what they have decided to do. I believe, however, that the analogy breaks down in a crucial respect: individuals, unlike polities, have an organizing centre—variously referred to as the will or the ego—that is constantly trying to integrate these fragmented parts. Societies, by contrast, have no centre.”); and also ibid., 196 (“[T]he analogy between individual and political self-binding is severely limited. An individual can bind himself to certain actions, or at least make deviations from them more costly and hence less likely, by having recourse to a legal framework that is external to and independent of himself. But nothing is external to society. With the exception of a few special cases… societies cannot deposit their will in structures outside their control.”)
27. For an exploration of the doubts, see Parfit, Derek, “Later Selves and Moral Principles” in Montefiore, Alan, ed., Philosophy and Personal Relations: An Anglo-French Study (London: Routledge & Kegan Paul, 1973) at 137–69.Google Scholar
28. Even though we may sometimes be wrong in so thinking: see Elster, , Ulysses and the Sirens, supra note 1 at 109–10.Google Scholar
29. See Tribe, Laurence H., Abortion: The Clash of Absolutes (New York: Norton, 1990) at 240.Google Scholar
30. On the problem of status quo neutrality, see Sunstein, Cass R., The Partial Constitution (Cambridge, MA: Harvard University Press, 1993) at 68–92.Google Scholar
31. See Gunther, Gerald, “The Subtle Vices of the ‘Passive Virtues’—A Comment on Principle and Expediency in Judicial Review” (1964) 64 Colum. L. Rev. 1.CrossRefGoogle Scholar
32. 347 U.S. 483(1954).
33. See Gunther, supra note 31 at 24.
34. For a general exploration of this theme, see Goodrich, Peter, Oedipus Lex: Psychoanalysis, History, Law (Berkeley: University of California Press, 1995).Google Scholar Goodrich’s analysis serves, I think, to demonstrate how application of the psychoanalytical concept of repression as a tool of jurisprudential critique is controversial and of limited value. Goodrich personifies the English common law system of the sixteenth and seventeenth centuries as masculine, authoritarian, censorious, insular and generally fearful of anything which contradicted its orthodoxy. The argument, in short, is that the English common law represses and that an historico-psychoanalytical study of its contours ought to enable us to excavate that which has been repressed. But what might it mean, here, to say that something has been repressed? For Goodrich, “access to the unconscious is defined precisely as being by way of… that which is beneath the surface, underneath what is heard, below what is understood” (33). Yet it is not at all obvious why he himself might be considered to occupy the privileged position of being able to gain access to the unconscious of the English common law. Repression, for Goodrich, ultimately means whatever he wants it to mean. Indeed, his strategy of critique is to label the common law repressive whenever it appears not to reflect or embody values and qualities which he endorses. As Goodrich invokes it, this strategy entails an abdication of reason. The currency of common lawyers, he argues, is legal rule and reason; when emotion and desire impregnate the legal system, their activities are undermined. Accordingly, emotions and desires are repressed: the common law “hides or conceals” its “uncertain desires, its traumas and repressions” underneath “the reason of rules” (33–34). The fundamental problem with this line of argument is that it precludes meaningful debate. How, after all, might one use reason to refute the allegation of repression if a sign of repression is attraction to reason? Much the same objection might be raised with regard to theories which make similar use of the notion of false consciousness. See Duxbury, Neil, “Post-Modern Jurisprudence and its Discontents” (1991) 11 Oxford J. of Legal Stud. 589 at 590.CrossRefGoogle Scholar
35. Indeed, consider Bentham on this matter:
All nations—all future ages—shall be, for they are predestined to be, our slaves.
Future governments will not have honesty enough to be trusted with the determination of what rights shall be maintained, what abrogated—what laws kept in force, what repealed. Future subjects… will not have wit enough to be trusted with the choice whether to submit to the determination of the government of their time, or to resist it. Governments, citizens—all to the end of time—all must be kept in chains.
Such are the maxims—such their premises—for it is by such premises only that the doctrine of imprescriptible rights and unrepeatable laws can be supported.
Bentham, Jeremy, “Anarchical Fallacies; being an examination of the Declaration of Rights issued during the French Revolution” (1796) in Waldron, Jeremy, ed., “Nonsense upon Stilts”: Bentham, Burke and Marx on the Rights of Man (London: Methuen, 1987) 46 at 54.Google Scholar