Behavioral ethics: expanding notions of risk

In Behavioral Ethics Perspective on the Theory of Criminal Law & Punishment Hadar Dancig Rosenberg and Yuval Feldman of Bar-Ilan University identify ways in which behavioral ethics ideas and information can inform an understanding of risk. https://ssrn.com/abstract=4222232   While addressed to the realm of criminal law they are applicable to the design and management of compliance and ethics (“C&E”) programs too.

First, they pose the question of “whether misconduct that is easier to self-justify should be punished more harshly than unjustifiable misconduct.  Intuitively, from a retributive perspective criminal law scholars and laypersons might believe that the more serious and harder to justify the wrongdoing is, the harsher the punishment should be. Yet, from the perspective of deterrence, which focuses on the likelihood of a greater proportion of the population engaging in such wrongdoings prior to legal intervention, behavioral ethics mechanisms might support the opposite conclusion. The behavioral ethics approach may suggest that actions with greater normative ambiguity, which are therefore easier for more people to self-justify, should warrant harsher punishment.”

A second set of questions they suggest concerns motivations for the wrongdoing at issue, with “conventional criminal law theory suggest that punishment might be mitigated and reduced in cases where the motive for committing the crime is an altruistic one.  By contrast, the view of behavioral ethics research, which focuses on the mechanisms through which people can misperceive the morality of their own behavior, suggests that ‘good people’ might find it easier to cheat and be dishonest when the consequences of their wrongdoing is shared with others or reduced. This – like other aspects of behavioral research – argues in favor of other of stricter punishment in cases of virtuous motivations, the opposite of received wisdom.

Third, they discuss how “we should treat negligent parties who inadvertently takes unreasonable risks. They note the potential relevancy of behavioral ethics to the normative controversy over … justifications for criminalizing the negligent.” More on negligence and behavioral ethics can be found here. http://conflictofinterestblog.com/2022/06/the-full-promise-of-co”fmpliance-and-ethics-programs.html

A fourth example concerns the contagiousness potential of a certain act as a justification for harsher punishment: “People whose behavior is on the borderline between criminal and non-criminal are more likely to blur or cross this line, thereby expanding the acceptability and permissibility of acts which otherwise were more clearly perceived to be criminal. This, then, encourages others to follow suit. The unique danger of such misconduct derives from its potential to cause others to engage in activities that would otherwise be perceived as anti-social.”

The last context they discuss “involves the recognition that behavioral ethics highlights the strong effect of the circumstances of organizational settings on the likelihood of individuals committing wrongdoing. Understanding the magnitude of this effect might justify imposing criminal liability on organizations for using out-come oriented incentives as part of their pay structure.” There is lots to be said about this last point – particularly concerning recent compliance program guidance from the US Department of Justice.