Behavioral Theory of Legal Ethics

2022-10-04 Mpprojekt

This article suggests that the answer lies in social psychology. Extensive research shows that situational factors, such as placing a lawyer in a partisan role, can lead to behavior that is incompatible with conventional ethical theories. This article suggests that legal ethicists can develop more accurate and useful theories by considering how partisanship distorts objectivity, just as behavioral economists have used social psychology to develop more accurate and useful understandings of economics. Over the past decade, research on evidence-based management theory (EBMgt) has developed a behavioral perspective on practice. EBMgt strives to help professionals – called managers – make informed assessments that take into account social and ethical factors. The aim is to promote a scientific approach to the use of information in practice (Briner et al. 2009). In practice, decisions are still too often based solely on something that seems right, although scientific discoveries and methods can greatly improve decision-making processes. EBMgt argues that practitioners should learn to (1) scientific theory, (2) the ideas offered by the organization`s professionals, and (3) responsibly connect stakeholders` ideas with (4) the context of the organization.

Scientific methods can help to combine and apply these different forms of knowledge. Practitioners should therefore assess the evidence based on methodological ability, transparency, consensus, reproducibility and contextualization (e.g., Briner et al., 2009; Baba and HakemZadeh 2012). In line with EBMgt, it is important for academics to help practitioners make „good” decisions. In this perspective, starting with Simon in the 1950s and Schӧn in the 1980s, attention to decision-making in scientific practice has regained importance. From time to time, scientists rediscovered the practice: around 1950, the Carnegie School was born and behavioral theory emerged. Around 2005, evidence-based management (Rousseau 2006) developed a similar ambition, although behavioral theory aimed to bring scientific approaches to business schools, while EBMgt promoted scientific approaches in practice. The evidence-based approach to business behavioural theory thus acquires a moral dimension (see also Bowen 2007). While this body of theory is inclined to rely on good processes and assume that norms and values will develop on their own, it is now becoming clear that there are a number of fundamental normative principles that strongly influence the relationship of professionals to reality. Eikeland`s (2008, 2012) perspective on Aristotle allows us to bring together different approaches to reality. In addition to theory, there are various other types of knowledge.

Through the use of instruments and the manipulation of materials, we develop discoveries, Khresis or Poiesis. In terms of manipulation, „techne” (technical rationality) is a critical form of understanding. This suggests that technical rationality is necessary for the use of instruments (Khresis) and the handling of equipment (Poiesis). This rationality is different from practice, in which „phroneses”, forms of wisdom, are crucial. As such, practice can be divided into (1) phronesis, a form of rationality in which reflection is key, and (2) dialectics, certain relational and developmental „training” processes. This implies that practices and „practices” are different. In short, practices become practical when phronesis and dialectics are needed (see Eikeland 2012). The interrelationship between different forms of knowledge is complex.

To apply different ideas, Aristotle emphasizes the importance of dialogue. Here he tends to use the related word „dialectic” because he wants to distinguish the essence of this process from dialogues in which rhetoric – as taught by the Sophists – is at the forefront (e.g. Eikeland 2008, p. 218 e.V.). Aristotle recognizes that rhetoric is important, but that it must be confronted with the paths of knowledge, and a certain dialectic between „rhetoric” and between the different forms of knowledge is necessary. For these processes of dialogue, he begins to develop certain methods: certain steps to recognize what has value in a particular situation. Dialectics is also critical in the use of theory (Eikeland 2012, p. 20).

In the field of business ethics, the relationship between ethics and craftsmanship is currently being discussed, with the aim of realigning the practice of business and economics, a need that became even more urgent after the 2008 financial crisis. Craftsmanship is a relevant new way of linking ethics to business. In this article, I argued that this reorientation can be effective in developing a relationship between ethics and the role of evidence in professional practice. To enable reorientation, a behavioral perspective on decision-making can be helpful. Among other things, it helps us understand the limits of the perception of individuals, organizations and societies in the development of evidence. To put it more simply, behavioral theory helps capture the muddy and fuzzy processes of decision-making, a process with which Aristotle struggled even in his time. The above suggests that EBMgt can help business ethics understand the process of „fact building” by professionals within institutional structures, procedures and processes. Aristotle`s ideas about professionals and the behavioral perspective rooted in American pragmatism are reflected in their attention to virtues, but they emphasize various aspects of decision-making. Where Aristotle tends to emphasize the relationship between virtue and contemplation, Dewey places more emphasis on action (Pagan 2008).