The “Constitution of Man”: Reflections on Human Nature From the Federalist Papers to Behavioral Law and Economics
This Note challenges claims to novelty made by the last three decades of behavioral law and economics scholarship, and offers a framework for understanding the historical development of studies of human nature. Studies of human nature in the context of legal policy over the last thirty years tend to contrast the standard rational choice view against the emergent behavioral model of decision– making. This way of pitching the debate is remiss in two ways. First, the classical liberal conception of human nature articulated in the Federalist Papers plausibly explains the need for and design of the original United States Constitution, so it is odd to omit such an august school of thought from discussions of human nature and law. Second, a survey of classical liberal literature, such as the Federalist Papers, reveals that many of the insights into human nature proffered by contemporary behavioral research, and a few descriptions from the standard view, find expression centuries prior. These findings suggest an etiological rather than binary approach to framing the debate about human nature, an approach that seeks out the conceptual development from classical liberal to neoclassical economic to behavioral perspectives. Behavioral law and economics did not emerge sui generis as a novel counterpoint to the application of neoclassical economics to legal issues. Rather, classical liberal, neoclassical, and behavioral precepts about human nature form a unified whole, a narrative about ourselves that has refined and evolved over time. The lodestar for our conception of human nature today should be the classical liberal perspective because it is the basis upon which our Constitution was built, because it accommodates some key predictions about human behavior from both the neoclassical and behavioral perspectives, and because it endures as an accurate account of our nature.
