Elgar Law and Entrepreneurship series
Edited by Shubha Ghosh and Robin Paul Malloy
Chapter 1: Introduction: Can We Incentivize Creativity and Entrepreneurship?
Shubha Ghosh Legal rules and institutions are often understood in instrumental terms. They are a means to certain socially desirable ends. For example, securities laws are justified in terms of creating transparency and more informationally efficient markets. Health and safety regulations, whether in the form of federal administrative rules or tort law, deter socially harmful conduct and create more trustworthy and protected public spaces. And of course, intellectual property laws are described as legal regulations that incentivize the publication or commercialization of creative works, whether those that entertain us or those that increase the stock of scientific and technical knowledge. Society is considered as including other instruments in addition to law. Business activities, social interactions, creative works, scientific breakthroughs – each understood as arising from individuals who are acting instrumentally, pursuing certain actions to reach certain ends. Poetically, the individual actor may be seen as an instrument of some hidden actor, a muse, a god, a spiritual principal, each serving as a metaphor for an ineffable or unknowable internal force. But such poetry serves to dodge the more challenging question of what drives people to achieve the various accomplishments that law tries to encourage or to pursue the nefarious ends that law prohibits. To replace the spiritual principal with selfmotivation or self-interest seems to answer the question only partially. After all, what is the self that is so motivated to act in the pursuit of its own interests but a construct of the society in which it acts? Recognizing that one...