Public Choice of Punishment

The formal analysis of efficient law enforcement has been developed in some detail by several modern economists, and this analysis need not be elaborated here.8 In the elementary discussion of the preceding sections, punish

8. See Gary Becker, ''Crime and Punishment: An Economic Approach,'' Journal of Political Economy 76 (March/April 1968): 169-217; Gordon Tullock, The Logic of Law (New York: Basic Books, 1971); George Stigler, ''The Optimum Enforcement of Laws,'' Journal of Political Economy 78 (May/June 1970): 526-36; Gary Becker and George Stigler, ''Law Enforcement, Corruption, and the Compensation of Enforcers,'' mimeographed (Paper presented at Conference on Capitalism and Freedom, Charlottesville, Virginia, October

ment strategy was examined in a two-person construction, with both A and B taking on ''everyman'' characteristics as appropriate. Individual A, the participant in a presumed collective choice at the constitutional level, one that involves the selection of a set of institutions for punishment, can conceptually pick out a preferred option, given his own utility function, his own endowments and capacities, his predictions about the behavior of potential offenders in response to alternative punishment strategies, his predictions about the functioning of the institutions chosen, and some knowledge of the resource outlays required to implement the alternatives. His preferred solution will embody some mix between the certainty and severity components. If this were the end of it, perhaps the most difficult aspect of the punishment dilemma need never arise. In such a simple interaction, A might accept the necessity of making his choice strategically at the constitutional level and accept the implication that this choice, once made, could not be tampered with in response to expediency considerations that arise subsequently. But there are many A's in the community, including also all of the potential B's, and the selection of a set of enforcement-punishment institutions must be collective rather than individualistic. Each member of the group may reach a personal decision on his most preferred institution, but the separate individual choices must somehow be combined to produce a unique social, community, or collective outcome. All of the problems of aggregating individual orderings seem to emerge.

The set of alternative enforcement-punishment institutions that satisfy the separate personal preferences may be large indeed. In our earlier discussion of the conceptual constitutional contract, the problem of reaching general agreement was examined, especially with reference to general agreement on the quantity of law, in Chapter 7. Insofar as the first leap from anarchy takes the form of a disarmament pact, with persons agreeing to honor the rights of others, specific terms may be more readily agreed on. Tizio and Caio may accept a mutual disarmament compact in which they agree to refrain from invading each other's domain. This is not, of course, to suggest that the definition of separate individual rights emerges in some natural sense. It does suggest that, once definition is attained, the contract is more or less complete. The definition of the appropriate dividing line between those interactions subjected to formal law and those that are not was shown to be a much more difficult aspect of social contract. As we have conceptualized it, the basic constitutional contract must also include the terms under which the community may undertake collective or joint action in postconstitutional stages; that is, the basic constitutional framework must lay down the rules for making collective decision concerning the provision and financing of public goods and services. Individuals may differ among themselves over the working properties of alternative rules, and, because of this, they may optimally prefer separate structures. I have not discussed this problem as such; I have simply presumed that some general agreement on such decision rules is achieved.9

I have, in this chapter, argued that punishment institutions and rules should also be included as a part of the conceptual constitutional contract under which a society operates. The attainment of general agreement on a set of preferred punishment rules may, however, create more difficulties than almost any other aspect of the basic constitutional settlement. In this respect it is akin to the problem of reaching agreement on the range of law, discussed in Chapter 7. Even within the constitution-making process, some initial agreement on a decision rule may be required. Each member of the group will, presumably, have an interest in laying down some rules for punishing those who violate the basic terms. But since different members will disagree over the severity of punishment, agreement may first have to be reached on how a unique set of punishment rules can be selected. If a majority rule is chosen as the instrument, the familiar Condorcet paradox may be present. It is quite possible that separate individual orderings may not be single-peaked or single-troughed, in which case cyclical patterns may be generated.10 Even if we disregard this prospect, the dissatisfaction of participants whose preferences are not median for the group must be acknowledged. A majoritarian decision amounts to satisfying the preferences of the median man. The selection of a set of enforcement-punishment institutions which makes the median man happy must leave others on both sides of the choice spectrum unhappy. There will be some persons who consider the median choice to be overly restrictive

9. In part, this neglect of the discussion of preferred rules for making ordinary collective decisions, and of the efficiency properties of alternative rules, stems from the earlier treatment of these questions. See James M. Buchanan and Gordon Tullock, The Calculus of Consent.

10. The modern seminal works on the voting paradox are Kenneth Arrow, Social Choice and Individual Values (New York: Wiley, 1951); and Duncan Black, Theory of Committees and Elections (Cambridge: Cambridge University Press, 1958).

and others who consider the median choice to be unduly permissive in its operation and effects.

As with the conceptual contractual negotiations over the range of behavioral restrictions, there must exist some means of securing general agreement on levels of punishment, provided that appropriate side payments or compensations separate from the punishment choice itself can be made. Those who intensely prefer severe punishment may, in some instances, purchase the agreement of those who prefer less severe penalties for law violation, or vice versa. Conceptually, agreement may be attained, but, practically, the choice of a set of punishment institutions presents more difficulties in attaining acceptable compromises among differing preferences than almost any other aspect of the imagined constitutional contract.

With the collective choice of an enforcement-punishment institutional structure, difficulties present themselves which do not appear in other aspects of constitutional agreement. As the analysis suggests, it is essential that the choice of punishment rules be made at the constitutional stage, where strategic effects of alternatives can be assessed and predictions made. That is to say, punishment rules must be chosen before punishment becomes necessary. To the individual participant in the constitutional choice, however, the strategic implications may not be evident. He does not feel individually responsible for the outcome that emerges from the group deliberations; the costs and benefits are diffused generally among all members of the community, and among many time-periods. The individual participant behaves as if he is purchasing a genuinely public good. He will not be motivated to invest in information about the choice alternatives.11 To the extent, therefore, that a strategically rational approach to the selection of a set of enforcement-punishment institutions requires a more sophisticated analysis than a simple response, the collectivization of decision at the constitutional level introduces major complications. The rules for punishment that might emerge from a deliberative process may not reflect careful weighing of alternatives. The outcome may seem almost arbitrary, which, in turn, offers the temptation for

11. For a more extended discussion of these points, see my "Individual Choice in Voting and the Market,'' Journal of Political Economy 62 (August 1954): 334-43, reprinted in Fiscal Theory and Political Economy (Chapel Hill: University of North Carolina Press, 1960); and Gordon Tullock, ''Public Decisions as Public Goods,'' Journal of Political Economy 79 (July/August 1971): 913-18.

tampering with the rules in a postconstitutional response setting. It is one thing for the analyst to suggest that community decisions about punishment should be made at the constitutional level, and that these decisions should be sophisticated in the strategic sense. It is quite another thing to suggest that the community decisions on punishment will be made in this fashion, either in terms of the levels of decision or in terms of the informational-analytical content.

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