Crime, Law and Society

Selected Essays

Malcolm M. Feeley, MalcolmM. Feeley

• Publisher: Routledge
• Year: 2017
• Print ISBN: 9781409466215
• eBook ISBN: 9781351570633
• Topic: History
• Subtopic: World History
• Index: History

Malcolm Feeley's work is well-known to scholars around the world and has influenced two generations of criminologists and legal scholars. He has written extensively on crime and the legal process and has published numerous articles in law, history, social science and philosophy journals; two of his books, The Process is the Punishment and Court Reform on Trials, have won awards. This volume brings together many of his better-known articles and essays, as well as some of his lesser-known but nevertheless important contributions, all of which share the common theme of the value of the rule of law, albeit a more sophisticated concept than is commonly embraced. The selections also reveal the full range of his interests and the way in which his research interests have developed.

Part I

Theoretical Reflections

[1]

Coercion and Compliance: A New Look at an Old Problem

Despite the general recognition of its importance, it has been noted that there is a paucity of theoretical treatment of the problems of compliance to law (Krislov, 1966). While there is a vast literature dealing with rule-specified behavior, a direct focus on the peculiarities of legal rules and compliance to them seems to have been skirted in favor of more general treatments of social norms, less-structured rule and compliance systems, and basic or constitutional rules. And when law and the problems of compliance have received specific attention, it has usually been in terms of a broad, societal level, relating legal norms to cultural norms or focusing on “trouble cases” and instances of noncompliance. Detailed empirical studies in sociology have tended to focus on deviant behavior and its correlates, while in political science the approach has tended towards even less-general descriptions and case studies of the impact and consequences of legislative and judicial policy-making.

On the other hand an impressive body of literature with its roots in economics has begun to develop theoretical formulations of individual and collective decision-making in a variety of social and political situations which has direct relevance to the study of law and legal choice (Blau, 1964; Thibaut and Kelley, 1959; Arrow, 1951; Buchanan and Tullock, 1962; Olson, 1965; Coleman, 1966a, b, c). There are a number of compelling reasons why the application of this general orientation and concern for formal theory ought to be particularly useful in the development of a theoretical characterization of laws, the problems of compliance and noncompliance, and the functions of formal, legal sanctions. First is the strict insistence on the adherence to the individualistic postulate, the characterization of collectivities in terms of their individual, constituent members. Such a requirement would seem particularly desirable in the study of law and society, where so often analysts have been guilty of both reification and assigning “purpose” to vaguely defined collectivities. Another is the nature of the legal system itself: it is a highly formalized system of rules which are usually selected by and operate under definite and clearly determined social mechanisms. Thus while laws are promulgated in a host of ways and deal with a wide variety of types of human behavior, on a more abstract level the legal system can be conceptualized as a rather formal, well-defined system of social choice and interaction, the elements of which are specifiable. All this leads me to think that the more formal approaches and orientation of recent social choice theorists might have particular significance for the study of law and the problems of compliance. In particular, there are several impressive discussions which deal with theories of constitution-making. Obviously such theories of basic norms, to adhere to Kelsen’s terminology, have direct implications for the structure and consequences of substantive, primary norms which form the daily stuff of the law. Consequently, these particular studies provide a convenient point to begin the attempt to develop a theory of compliance.

FOUNDATIONS FOR AN ECONOMIC THEORY OF COMPLIANCE

Among this literature James Buchanan and Gordon Tullock’s The Calculus of Consent (1962), subtitled “The Logical Foundations of Constitutional Democracy,” offers the most directly relevant place to begin the task. The focus of their examination is quite simple: “to analyze the calculus of the rational individual when he is faced with the questions of constitutional choice” in order to answer the question, “when will an individual member of the group find it advantageous to enter into a ‘political’ relationship with his fellows?” (See Buchanan and Tullock, 1962: 43.) They then proceed to examine the strategies, calculations, and consequences of the rational individual engaging in constitutional construction, and introduce several mechanisms which, they argue, will allow individuals to reach unanimous agreement on a constitution. The foremost device is a set of variable decision-rules. Thus for example, provisions involving basic civil liberties and property rights can only be altered by a rule approaching unanimity of consent, while less important concerns can be adopted by less stringent decision-rules. This set of variable decision-rules allows decision-making costs to be minimized in proportion to the amount of externalities imposed by the particular collective decisions. Buchanan and Tullock also argue that the mechanisms of log-rolling, side-payments, and vote-trading can be incorporated into a set of institutions which implement this conception of a unanimous consent-based system. Realizing that each particular decision or decision-rule will probably result in a net benefit for each individual, there is a tendency to support a personally nonbeneficial decision-rule (or decision under it) only in turn for some type of compensation through one of these adjustment mechanisms. Furthermore, they argue that these devices, plus the desire to minimize decision-making costs of purely voluntary action, can be utilized to insure that each individual will benefit from collective governmental action in the long run, and hence will voluntarily support all its activities and programs. Any net costs incurred in a particular instance must be viewed as exchanges for future benefits.

Thus, by adopting a market model of voluntary and mutually beneficial exchange as the basis of a unanimously agreed upon constitutional system, it is argued that each individual will maximize his utility in the long run, and that a stable equilibrium will be achieved. On a general level this notion of mutual benefit seems to be a reasonable conception of political life, particularly in the actions of formal representative bodies. But can we expect this voluntary conception of social and political life to hold on a societal level in all cases? Are particular operational or substantive policies always adopted and accepted on a purely voluntary basis?

The appropriateness of this reliance on a market model and purely voluntary political organization to provide social wants should be carefully scrutinized. Traditionally a basic characteristic of a market system is that the products be exclusive and divisible, since the basis of the exchange relationship is that individuals can maximize their personal utility and attain a state of marginal equilibrium through quid pro quo and self-policing transactions. On the other hand many of the basic and traditional functions of government are not of this nature. Rather they often tend to be “public” in nature; that is, once they are produced they are available to all whether they want them or pay for them. Such goods are not feasibly exchanged in quid pro quo transactions. Consequently it does not seem to always be the case that even unanimous desire for these goods would result in the spontaneous and voluntary decision to adopt them, whether by government or through private actions, even when the decision-making costs are ignored. When a large group is involved, it is questionable whether there is sufficient incentive for individuals to contribute voluntarily toward or voluntarily accept the costs of producing such a desired goal. And if they are drawn into action, there is a tendency for them to understate their preferences in order to minimize thieir costs. Since they receive the benefits anyway, and their contributions make no difference to the amount of the good produced, the incentive of the market place is lacking.

Buchanan and Tullock (1962: 68-85) have attempted to overcome this problem by introducing the practices of compensation, logrolling, side-payments, and vote-trading over time. Coleman (1966b, c) has presented similar arguments in at least two articles. The gist of this very interesting argument is that with the opportunity for a large number of decisions of varying importance to be made over an extended period of time, individuals can achieve a state of marginal equilibrium by exchanging their votes on particular issues for others’ support on other issues. That is, these numerous votes, of varying importance to the individual, have the same function as goods in the market, and can be bartered in a manner to express precisely his interest on each one. A “vote market” has thus been created by considering numerous collective decisions through time, rather than conceiving each collective decision as a distinct and isolated event.

Let us examine in more detail the implications of this argument since it has important consequences for the explanation of “the most difficult of all intellectual problems in the functioning of society: how individuals, each acting in his own self-interest, can nevertheless make collective decisions, function as an on-going society, and survive together without a ‘war of all against all’” (Coleman, 1966a: 66). This vote-market system does seem to handle the problem of revealing preferences and arriving at decisions in an institutional setting where votes can clearly and openly be traded and collected. But it is still not clear that this purely voluntary characterization of collective action would be successful in a broader social setting, particularly at the policy implementation and enforcement level. If indeed, it is to begin to offer a theory of social action, and not just decision, this problem must be resolved. In a sense this problem of implementation is the most fundamental of questions in social interaction and cohesion, and must be considered concurrently with any theory of collective choice which purports to explain social cohesion. An examination of the nature of public goods will point out some of the problems of a purely voluntaristic conception of social exchanges and cohesion.

THE THEORY OF PUBLIC GOODS

While the notion of public, collective, or social goods is an old and important concept, it is not the most well-developed concept in economic theory. There is at best only the most general agreement on the precise characteristics of “pure” public goods. Despite this lack of theoretical development and clarity, the concept persists as an important one in political economy, and in the instance of Baumol’s, Welfare Economics and the Theory of the State (1952), and Olson’s, Logic of Collective Action (1965), has begun to make a place for itself in contemporary political science. In this paper I am suggesting its significance for the development of a framework for characterizing a legal system, or at least a good number of laws within one, and examining the attendant problems of compliance. Let us briefly examine the fundamentals of the concept.

Samuelson (1954: 387) has distinguished between two ideal types of goods: “private consumption goods” and “collective consumption goods.” The former are goods

which can be parcelled out among different individuals (1,2, … ,i,…,s)according to the relations,

, and collective consumption goods

which all enjoy in common, in the sense that each individual’s consumption of such a good leads to no subtraction from any other individual’s consumption of that good, so that

simultaneously for each and every i th individual and each collective consumptive good.

Thus the public consumption good “differs from a private consumption good in that each man’s consumption of it ... is related to the total by a condition of equality rather than summation” (Samuelson, 1955: 350).

Head, in elaborating on the theory, points out two distinct elements of public or collective goods: (1) jointness of supply, lumpiness or indivisibility of the product, and (2) the nature of external economies, or the problem of exclusion. Jointness of supply is the characteristic of a good so that “once produced, any given unit of the good can be made equally available to all” (Head, 1962: 201). That is, if a good is made available to one individual or group, it can easily be supplied to an additional person without a corresponding loss to the others. The problem of external economies is the infeasibility or impracticality of excluding potential users of the good. The reasons for these external economies (or diseconomies) are described as the divorce of scarcity from effective ownership. That is, the satisfaction derived from such public goods by any individual is independent of his own contribution, because there is no feasible (or efficient) means of “exchanging” the product on a quid pro quo basis as there is with private goods in the market. The benefits from public goods accrue to all, and are independent of any individual’s particular contribution. Head (1962: 202-203) notes that the effect of all this is

to create divergencies between private and social costs and benefits, and thus to prevent the satisfaction of the optimum conditions. Some economic units can enjoy some of the benefits without having to pay for them, and it would, of course, be grossly unrealistic to expect them to contribute voluntarily … [and] similarly where the full social costs cannot be charged to an economic unit through the pricing process, again voluntary contributions by way of compensation or expenditures to reduce the costs in question cannot reasonably be expected.

How then, and by what criteria, are these types of goods to be provided? This is, of course, one of the central debates in public finance, and there is no simple, agreed-upon answer. The problem arises in seeking a mechanism for accurately ascertaining the preferences of individuals for the goods, since for any single issue the ideal arragement of the market is not operative. Regardless of the type of political system—including a system in which policies are decided by unanimous agreement—each person will be reluctant to contribute voluntarily to the cost of providing the good. Two interrelated factors contribute to this:

Any one person can hope to snatch some selfish benefit in a way not possible under the self-policing competitive pricing of private goods. It is in the selfish interest of each person to give false signals, to pretend to have less interest in a collective consumption activity than he really has. [Samuelson, 1954: 388-389]

Assuming that there is some attempt to allocate costs proportionate to use or to intensity of preference, the person would thus save on payments. Second, the tendency is not to want to contribute anything since the benefit can be enjoyed anyway, and the failure of a single individual to contribute will not affect the overall policy. No small amount of effort has gone into resolving these tendencies, often characterized as the problem of contingency of the “free-rider.”

Early writers on the subject, perhaps more in terms of justification than explanation, suggested that “the tax tends to take away from each and all that quantity of wealth which they would have voluntarily yielded to the state for the satisfaction of their purely collective wants” (A. Graziani, quoted in Colm, 1936: 4). Here Graziani attempts to ...

Table of contents

• Cover
• Half Title
• Title Page
• Copyright Page
• Table of Contents
• Acknowledgements
• Introduction
• Part I Theoretical Reflections
• Part II Organizational Theory, Change, and the Criminal Process
• Part III Social Theory and the Criminal Process
• Part IV Continuities and Change: History, Social Theory, and the Criminal Process
• Name Index