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2019 | OriginalPaper | Buchkapitel

8. The Limits of Punishment: Of Angels and Bad Men

verfasst von : Thomas J. Miceli

Erschienen in: The Paradox of Punishment

Verlag: Springer International Publishing

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Abstract

The chapter explores the limits of criminal punishment as a means of regulating conduct by introducing the role of law in communicating unacceptable behaviors to members of society. This “expressive function” of law can expand the reach of law if least some members of the population are responsive to the idea that disobeying the law is itself wrong or immoral, regardless of the consequences. The chapter examines the implications of this moral dimension of law for the optimal scope of rulemaking and the structure of punishments. It turns out that an increase in the fraction of reflexive law-abiders may make it desirable to expand or contract the scope of law; that is, morality can either be a complement or substitute for the threat of punishment.

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Vorheriges Kapitel Individual Versus Collective Responsibility: It Takes a Village

Nächstes Kapitel Epilogue: What Have We Learned?

Hart notes that the prototypes of the latter are Holmes’s bad men, who, as we noted, are the epitome of the rational economic agent (Holmes 1897).

In keeping with this view, Holmes, in his classic treatise on the common law (Holmes 1881), argued that the law had evolved away from ideas of moral culpability and instead operated “based on external standards of conduct that reflected social needs and norms of behavior” (Budiansky 2019, p. 170). That view, however, is not incompatible with the idea that some people are nevertheless impelled to obey the law out of considerations of morality.

Dharmapala and McAdams (2003) argue that the expressive function may work through the role of the legislature in providing information to citizens about the costs of certain behaviors, which induces them to change their behavior apart from the threat of any punishment.

The model is based on Coşgel and Miceli (2019).

Hayek (1960, 1973) invokes the same logic. For example, he argues that a “group may have persisted only because its members have developed and transmitted ways of doing things which made the group as a whole more effective than others” (1973, p. 80). Also, see Posner (1983, p. 205), who makes a similar argument about the survival value of efficiency in a primitive world, and Johnson (2005), who argues that belief in supernatural punishment is adaptive both at the individual and the group level.

Frank (1987) argues that if they could, people would in fact choose a utility function that embodies a conscience, by which he means an aversion to cheating.

On this point, see Frank (1990), who argues that if cooperators can detect cheaters by expending some cost, the population will eventually evolve to a stable equilibrium in which both cooperators and cheaters co-exist in some fixed proportions.

The idea is similar to that discussed by Nozick (1974) regarding the emergence of a state with a monopoly on law enforcement.

The assumption of certain detection is made merely for simplicity and does not affect the qualitative conclusions of the analysis. See Coşgel and Miceli (2019) for a more general model with a detection probability of p ≤ 1.

For example, it is a bounty paid to the police.

We will assume here that the start-up cost of a police force is solely incurred by the group of believers comprising the willing participants in such an enterprise, even though under law enforcement all citizens will end up being cooperators. The point here is to examine the conditions for the emergence of law.

This of course reflects the same logic as described by Weber with respect to certain Protestant sects (Weber 1930 [2003]).

The group is all but extinct today. Although there are a handful of Shakers left, they are no longer accepting converts.

Some other enforcement costs will be truly fixed in that they will also be independent of the crime rate, such as the cost of creating the infrastructure of law enforcement, like building police stations and courthouses. We ignore these costs.

If the sanction is costly to impose, then the optimal sanction will be less than the sum of the harm plus the cost of enforcement; that is, s ^∗ < h + k(s ^∗) (see, e.g., Polinsky and Shavell 2007, p. 410). Thus, the offender incurs a punishment that is less than the total cost he imposes on society (including enforcement costs). In this sense, there is some underdeterrence relative to an ideal outcome. In other words, the marginal crime imposes a greater overall cost on society than the benefit received by the offender. This is a consequence of the fact that raising s is costly.

This conclusion would not be true if the sanction s were bounded; that is, if s ≤ A, where A is, for example, the maximum ability of the offender to pay a fine. When A < h + k, this constraint would be binding and thus some criminal acts would be inefficient.

Hart (1982, p. 7) makes a similar point.

In fact, all drivers know that police will not generally apprehend drivers who slightly exceed the posted speed limit, which means that the effective speed limit (i.e., the threshold that actually will result in a sanction) is somewhat higher than the actual posted number.

Analytically, the results would be the same if we continued to count the offender’s gains but simply assumed that the harm from the act exceeds the gains to the offender who values the activity most. The idea of not counting the gains at all, however, seems to be a qualitatively different situation and one more in line with crimes of the sort we are considering here.

This would not necessarily be the case if the cost of enforcement depends on s (as is true of punishment by imprisonment). In that case, the optimal sanction would balance the marginal deterrence benefits against the marginal cost of raising s.

There is some risk of tautology here since, as we have argued, some people’s moral code is in fact shaped by law, as Shavell (2002, p. 254) recognizes. We pursue this point below.

Note that this is the converse of civil disobedience, which occurs when a person violates a law precisely because he or she believes its content is not moral or righteous. See, for example, Rawls (1971, Chapter VI)

Holmes (1881, p. 118) makes a similar point when he asks, “If we accept the test of liability alone, how do we distinguish…between conduct that is prohibited, and that which is merely taxed?”

See Katz (1987, pp. 64–65), Shavell (2004, pp. 565–566), and White (2018, p. 319).

This standard for categorizing potentially harmful acts is reminiscent of the Supreme Court’s ruling on the question of what constitutes obscenity in Jacobellis v. Ohio (378 U.S. 184, 1964). In that case, Justice Potter Stewart famously said that, although he could not define what obscenity is, he knew it when he saw it.

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Titel: The Limits of Punishment: Of Angels and Bad Men
verfasst von: Thomas J. Miceli
Verlag: Springer International Publishing
Buch: The Paradox of Punishment
Print ISBN: 978-3-030-31694-5

Electronic ISBN: 978-3-030-31695-2

Copyright-Jahr: 2019
DOI: https://doi.org/10.1007/978-3-030-31695-2_8