Law as a (low) price

The row about Abu Qatada’s extradition raises the question: what exactly is the function of the law?

We could regard it as a set of prohibitions, which is why so many people want the Home Secretary to follow due process. But there is another way of thinking about the law - to see it as merely a price list. So life in prison is the price we pay for murder, 10 years for armed robbery and so on.

This economistic conception of the law, embodied in the title of Gneezy and Rustichini’s paper (pdf), “A fine is a price” - is inspired by Gary Becker:

I began to think about crime in the 1960s after driving to Columbia University for an oral examination of a student in economic theory. I was late and had to decide quickly whether to put the car in a parking lot or risk getting a ticket for parking illegally on the street. I calculated the likelihood of getting a ticket, the size of the penalty, and the cost of putting the car in a lot. I decided it paid to take the risk and park on the street.

One could regard the decision on whether to deport Abu Qatada in the same way. Rather than ask: “is it legal?” the Home Secretary should follow Becker and weigh the costs of (possibly) breaking the law against the benefits of doing so.

And here’s the thing. This cost could be small. Worse violations of rights than in Mr Qatada’s case have elicited only smallish fines - “just satisfaction” - upon governments, for example:

- being raped by policemen. Fine €23,000.

- being “systematically beaten and tortured, at least six times, with electricity”. Fine €21,825.

- being “beaten, blindfolded, stripped naked, hosed with water and subjected to falaka (beating on the soles of the feet)”. Fine €43,000.

Those are for violations of article 3 of the ECHR, prohibiting torture - which you‘d think would carry especially heavy penalties. Violations of article 6 (the right to a fair trial - the one relevant to the Qatada case) - have yielded smaller fines. 

This poses the question. Given such low costs, why not simply deport Mr Qatada, have a whipround and pay the fine?

I don't think it is the case that the costs are in fact greater; it has been suggested that non-compliance with rulings might led to suspension from the Council of Europe, which some think a bad thing. Breaking a law and paying the price to do so is, in one sense, complying with the law; refusing to pay the fine would be non-compliance.

I suspect the answer is that this issue is not merely a matter of solving a problem; that could be done by bundling Mr Qatada onto the next plane to Jordan. Instead, it is about politicians’ desire to reveal themselves as particular types of characters. They want to appear like upright law-abiding citizens rather than as Beckerian economistic calculators. Sometimes, though - and not just in this case - this preference can be a positive obstacle to problem-solving.

Comments

[Keith]

Awful post: in a liberal Democracy the Government obeying the law and respecting human rights and due process is an absolute to be demanded of all Governments and political parties. No compromise and no price calculations. There is no proper comparison with private citizens. A higher constitutional standard applies. Your examples merely indicate that Governments should be punished more effectively.

The problem to be solved here is a bunch of politicians who pretend they believe in Human Rights but who obviously do not. Rather they want mob rule with the mob worked up by the press. Producing arbitrary power vested in the executive. Totally wrong and to be rejected.

The model of rational calculation is also wrong as it is part of the individualistic psychology of economic man. Many of the people involved in the criminal justice system clearly do not calculate as described or they would not be involved in the criminal justice system at all.
The murder rate for example in countries bears no relation to the use of the death penalty. And there is little correlation between crime rates and penalties when you compare different countries. No one knows what produces different crime rates but they seem to move across time and societies in a way divorced from individual psychology. So statistics would cast doubt on this idea.

[Phil]

"They want to appear like upright law-abiding citizens rather than as Beckerian economistic calculators."

That's precisely the sense in which a fine is not a tax. Or rather, that's precisely the *extent* to which a fine is not a tax.

[Kellie Strøm]

I think Keith is correct that there is a difference between governments and private citizens that goes beyond politicians wanting to appear as 'upright law-abiding citizens'; most citizens want to appear as such, but for governments, building and maintaining rule of law is their reason for being.

Once one is caught breaking the law, one loses a degree of independence, of power. One becomes to some degree an outlaw, at the mercy of those able to wield the power of the law. For an ordinary citizen unused to crime, say an amateur shoplifter, this can be unsettling enough (and the secondary costs in career &c. can easily exceed those imposed by law) but for a legislator who deals in power and is wholly dependent on law, it is often the end of the road.

On an institutional level, building international norms for rule of law is THE key international relations strategy for Western governments. To openly act against the will of a court created as part of that strategy would risk immeasurable strategic damage, and so the institutional resistance across wider government to such a move would pose great risk to any politician acting in such a way.

[Hoover]

Kellie is correct, to my mind, particularly in her/his last paragraph.

The cost of violating an international norm may be extremely difficult to measure in concrete terms, but nevertheless exists.

One consequence not yet mentioned is that the law ought to be predictable. The people must know what the law is, and arbitrary breaches by the state make this more difficult.

"Knowledge is the only just condition of obedience. The laws of Rome were written on tablets and posted, that all might read, and all were bound to obedience. The act of that emperor who caused his enactments to be written in small letters, on small tablets, and then posted the latter at such height that none could read the letters, and at the same time insisted upon the rule of obedience, outraging as it did the relations of governor and governed under his own system of government, has never been deemed consistent with or possible under ours."

In addition, the Charter is an agreement between *people*; a promise to the world that this is how we're going to behave.

Deporting Qatada is the breaking of that promise, an action that like all broken promises will be recorded on the debit side of the national conscience.

By all means cancel or alter your subscription to the Charter, but do so openly, honestly and deliberately rather than by fait accompli.

[chris]

@ Kellie (& Hoover) - you make an excellent point. However:
1. The Beckerian argument in this context is that the state should act more like someone engaging in an act of civil disobedience rather than as an outlaw. Whereas an outlaw tries to escape punishment, the civil disobeyer accepts the punishment, and in that sense respects the law.
2. Your point about building norms is strong. But surely the best way to do this is not so much for the UK to obey the law (it's imperialist arrogance to think we have much peer influence upon potential rights abusers elsewhere) but for the ECHR to impose serious punishments.
If the penalty for quasi-judicial rape is a fine of a few thousand euros, the court sends a signal that this is not a serious crime, and thus might encourage it - this is exactly as described by that Gneezy & Rustichini paper.
I appreciate that some of you find the Beckerian reasoning tastelessly amoral (immoral?). But such thinking is a natural inference from the leniency of the ECHR.

[Kellie Strøm]

I think that view of ECHR leniency may be a little back to front. Rather I suspect the low euro price of fines set by the ECHR may be a result of its function as a norm building exercise, deliberately designed to and dependent on building consensus amongst signatories. The primary aim is not to redistribute cash but to establish legal precedent.

And the state by definition can't engage in 'civil' disobedience. Here again the point is that the fines are not the key element - the establishment of law is the central point in these judgements.

[Keith]

I think that in effect the big fuss about this mans case is a claim of civil disobedience as it is presented as if the British state were the victim of an injustice. Yet the fuss arises from an attempt by the Court to apply norms of humanity the British state subscribes to, in theory, and helped to start itself. So there is no injustice in fact but merely the logical application of the idea of judicial enforcement. The low level of "fines" arises from the assumption that states wish to follow the norms they have accepted. And the function of the court is educational and to provide clarification about what that means in each case. Changing practice is the purpose of the system. This is the theory behind a constitutional court. One weakness of the idea is what do you do if elected bodies defy a system of judicial review? Using the theory of the mandate?

[McDuff]

I rather suspect it is because they wish to make a great deal of political hay out of the fact that they are the True And Righteous ones who only want to remove an unsympathetic villain from our pure and decent island, and it's those dastardly "human rights" that are getting in the way of their self-evident munificent goodness, again.

Or, in other words, that the media and the public who follow along behind it are being played for a bunch of chumps. Again.

[Churm Rincewind]

In fact the ECHR did not, in any of these three cases, put a price on torture (or to be more precise, violations of Article 3).

For example, in the instance of Abdurazok Gafarov, who had been tortured by the Tajikistani authorities, the case was brought against Russia on the grounds that Gafarov had been unlawfully detained there following a deportation request by Tajikistan and that applicable Russian law did not allow for his situation to be considered by a court. That was the basis of the case, that is the matter on which the ECHR ruled, and it was on this basis alone that the fine/award was determined.

Similar caveats apply to the other two cases. There is no question of ECHR "leniency". Like any other court, the ECHR judges can only rule on the specific matters brought before them, and although violations of Article 3 were germane to all three cases they were not the principal basis on which the financial awards were made.

I make the point because, at a time when the ECHR is under media and political attack, I think it's important that it shouldn't be misrepresented as some sort of cavalier outfit prepared to put price tickets on torture. It doesn't and it hasn't.