How Law Changes the Environmental Mind: An Experimental Study of the Effect of Legal Norms on Moral Perceptions and Civic Enforcement
| Published date | 01 December 2009 |
| Author | Oren Perez,Yuval Feldman |
| Date | 01 December 2009 |
| DOI | http://doi.org/10.1111/j.1467-6478.2009.00481.x |
JOURNAL OF LAW AND SOCIETY
VOLUME 36, NUMBER 4, DECEMBER 2009
ISSN: 0263-323X, pp. 501±35
How Law Changes the Environmental Mind:
An Experimental Study of the Effect of Legal Norms on
Moral Perceptions and Civic Enforcement
Yuval Feldman* and Oren Perez*
This paper examines how different legal instruments affect people's
moral intuitions and willingness to engage in social enforcement in the
field of environmental law. These instruments vary in terms of their
governance technique, the process through which they were enacted,
and their allocation of enforcement responsibilities. Their effect on
citizens' moral evaluation and emotional reaction to corporate
polluting behaviour are examined, based on an experimental survey
of a representative sample of 1400 individuals in Israel.
Our findings demonstrate that their design influences people's level
of moral and emotional resentment when faced by environmentally
problematic behaviour, as well as their motivation to engage in private
enforcement. The design of the regulatory instrument could thus
generate biases in social reactions to polluting behaviour, irrespective
of its actual ecological adverse effect. We analyse the moral and
psychological mechanisms which underlie these effects and explore
their various policy implications.
I. INTRODUCTION
The field of environmental regulation is unique in terms of the range of
regulatory techniques it uses. Among the regulatory instruments used by
environmental regulators are command-and-control instruments, market-
based mechanisms, self-regulation schemes such as ISO 14001,
501
ß2009 The Author. Journal Compilation ß2009 Cardiff University Law School. Published by Blackwell Publishing Ltd,
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* Faculty of Law, Bar Ilan University, Ramat Gan 52900, Israel
yfeldman@mail.biu.ac.il perezo@mail.biu.ac.il
Thanks to the Israel National Science Foundation for financial support, and to Tammy
Shterental for statistical consulting. We would also like to thank Talia Werber for
excellent research assistance, and Alon Klement and Shahar Lifshitz for comments on an
earlier draft of this paper.
participatory-based regulation, and more. These various instruments differ in
three key aspects: their governance technique (for example, standards versus
market-based instruments, criminal versus civic enforcement); the process
through which they were enacted (participatory versus hierarchical law-
making); and the way in which they allocate enforcement responsibilities
(decentralized versus government-centered regulation). Choosing the best
mixture of regulatory instruments, law-making procedures, and authority
distribution constitutes, therefore, an extremely difficult policy challenge.
This article offers a unique and yet-unexplored perspective into this
regulatory dilemma by analysing the expressive influence of law in the
context of a multi-faceted regulatory environment. It reports the result of a
study in which we examined the impact of different legal instruments on
people's moral, emotional, and behavioura l reactionstoecologically
problematic corporate behaviour. The study was based on the thesis that
people's reactions ± across the foregoing three dimensions ± will be
influenced by the legal context in which they operate, and that there exists a
strong correlation between the impacts of law across these three dimensions.
Our argument consists of two analytical steps. First, we argue that people's
moral and emotional reactions to polluting behaviour will be influenced by
the legal setting shaping the background of the observed polluting behaviour.
The moral and emotional dimensions represent different type of mental
processes. In particular, moral reaction is commonly understood as a product
of rational process of reasoning and reflection while emotional reaction is
seen as a more immediate, non-calculative psychological process.
1
This study
focuses, however, on what the literature has termed `moral emotions' ± the
emotional reaction triggered by behaviour judged to be immoral. Moral
emotions include a wide spectrum of emotions, ranging from negative
emotions such as shame, guilt, and embarrassment to positive emotions, such
as empathy.
2
Our research focuses on the emotional reaction to the immoral
behaviour of third parties. It highlights the role of other-focused, negative
moral emotions such as righteous anger, contempt, and disgust.
3
Research into `moral emotions' is still in its early stages, and the exact
nature of the causal connections among motivational, cogniti ve, and
emotional reactions to immoral behaviour is still to be explored.
4
However,
various studies have found a close association between the cognitive and
emotional components that underlie the individual reaction to violation of
502
1 See J. Haidt, `The emotional dog and its rational tail: A social intuitionist approach
to moral judgment' (2001) 108 Psychological Rev. 814.
2 See, generally, J.P. Tangney, J. Stuewig, and D.J. Mashek, `Moral Emotions and
Moral Behaviour' (2007) 58 Annual Rev. of Psychology 345±72.
3 id., p. 361.
4 See J.M. Darley and T.S. Pittman, `The Psychology of Compensatory and
Retributive Justice' (2003) 7 Personality and Social Psychology Rev. 324, at
333±5.
ß2009 The Author. Journal Compilation ß2009 Cardiff University Law School
moral rules.
5
This association caused researchers to describe this mentally
complex reaction using a single concept entitled resentment or moral
outrage.
6
Drawing on this literature, our theoretical discussion of the
expressive influence of law and social enforcement will consider the moral
and emotional components as part of a single attitudinal concept which we
term `resentment'. This theoretical choice is consistent with the economic
literature that studied non-instrumental motivation to engage in social
punishment.
7
We argue that the design of the legal instrument is likely to influence the
level of resentment, through several potential behavioural mediators which
are explicated below. Second, we argue that people's willingness to engage
in social enforcement will be strongly influenced by both their `resentment'
profile and their perception of the relative efficacy of the different
instruments. Underlying this claim is a broader thesis, which suggests that
people's behaviour is determined by a complex combination of self-
regarding, other-regarding, and duty-driven motivations.
We studied these hypotheses through a novel experimental framework in
which we exposed the participants to an identical scenario of corporate
pollution, set against a background of varied legal instruments. We then
examined to what extent the different legal settings affected people's moral
and emotional reactions, as well as their willingness to engage in different
forms of social enforcement.
Our study fills several gaps in the literature that explored the instrument
choice dilemma. Quite surprisingly, there has been no attempt ± theoretical
or empirical ± to study the way in which different legal instruments influence
individual perceptions of environmentally problematic behaviour and poten-
tial reactions to such behaviour. These socio-psychological phenomena can
influence, however, both the moral and economic analysis of the instrument
choice dilemma. From a moral perspective these hypothesized effects
highlight the unstable nature of our moral intuitions regarding environ-
mentally problematic behaviour.
8
From an economic perspective, the
503
5 See, for example, id.; A. Cook, `Individual vs. Systemic Justice: Using Trust and
Moral Outrage to Predict Reactions to Vigilante Murder' (PhD Dissertation,
University of Missouri-Columbia (2006)); P. Rozin, L. Lowery, S. Imada, and J.
Haidt, `The CAD triad hypothesis: a mapping between three moral emotions
(contempt, anger, disgust) and three moral codes (community, autonomy, divinity)'
(1999) 76 J. of Personality and Social Psychology 574; J. Moll, R. de Oliveira-
Souza, R. Zahn, `The Neural Basis of Moral Cognition' (2008) 1124 Annals of the
New York Academy of Sciences 161.
6 See, for example, Darley and Pittman, op. cit., n. 4, p. 332.
7 See E. Fehr and S. Gachter, `Altruistic Punishment in Humans' (2002) 415 Nature
137.
8 The philosophical literature that explored the normative quality of competing
regulatory instruments, did not consider the effect of the law on our moral intui-
tions. See, for example, R. Goodin, `Selling Environmental Indulgences' (1994) 47
Kyklos 573.
ß2009 The Author. Journal Compilation ß2009 Cardiff University Law School
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