The importance of being earnest: Two notions of internalization

Through its use of sanctions and rewards, the law can affect people's conduct in two ways: by modifying only their external behaviour ('behavioural change') or by changing their underlying preferences as well ('preference change'). In both cases, the legal rules can be said to have been 'internalized' - however, while in the former instance the individuals' conduct conflicts with their values, attitudes, and beliefs, in the latter it coincides with them. There is an ongoing debate as to whether policy makers should attempt to shape people's preferences. The main opposition to preference change is based on considerations of autonomy, since this form of internalization appears to be more intrusive than mere behavioural change. This article re-evaluates the impact on personal autonomy of these two modes of internalization. Based on theoretical arguments and the findings of two new experiments, it argues that the drawbacks of behavioural change have been downplayed, while those of preference change have been overstated. Indeed, in certain respects, the preference change mode of internalization is found to be less coercive than behavioural change - not only in theory, but according to people's actual perceptions of autonomy as well. Specifically, limiting the law's effect to people's external behaviour is likely to require stronger incentives than those needed to influence their underlying preferences. In addition, individuals view a person's conduct as being less autonomous when the law has changed only her behaviour as opposed to her inner preference for the activity. Although the former type of legal influence is superficial - in that it does not modify any attitude, value, or belief that a person holds - it was perceived as the most intrusive. The analysis has normative implications for important legal issues, such as the choice between default and mandatory rules and between direct and indirect remedies.