by Federico Sosa-Valle
The topicality of the distinction between natural and artificial virtues
This essay aims to highlight that the low generalized application of positive legal norms in any legal system, by allowing greater discretion on the part of the public powers, leads to a gradual increase in the levels of authoritarianism, both on the part of governments and of society itself.
Here the concept of “positive legal norms” is used in order to establish a distinction with empirical social norms. The latter consist of factual rules, not enunciated by any specific authority, which are of common and spontaneous observance by the members of a given society and which have extremely diffuse enforcement bodies. The rules of courtesy, of what is known as “fair play,” the expected ethical conduct among the members of a certain group constituted in an unintentional way -such as a business community or a group of friends-, are typical cases of empirical social norms, of which everyone knows their content to a certain extent, although they are not always in a position to state it and transmit it clearly and precisely and that, in general, do not have a “disciplinary court” that applies sanctions; rather, these are usually administered by the group members themselves in a tacit and diffuse way, or they are still relegated to the own conscience of each individual.
A positive legal norm, on the other hand, is sanctioned and promulgated by the public powers and has bodies for the application of its consequences before the verification of certain antecedents, which may consist of repressive sanctions or the establishment of certain creditor relations between individuals. The said consequences will be supported by the application also of the public powers or, expressed in other terms, the officials who exercise the public powers will not incur in any crime or contravention if they execute the dictation of a given sentence. Furthermore, they risk receiving a legal sanction if they abstain from enforcing the law without just cause of its own accord.
To illustrate what has just been expressed with some exemplary cases: If a private individual claims a certain sum of money from another – such as compensation for a breach of contract, or for damage caused to his property- he goes to court, the evidence is debated and the titles of the claim are examined and the court sentences condemning the defendant to a certain sum of money, if he does not pay it within the term stipulated in the sentence, then the claimant would be authorized to initiate the enforcement proceedings. As a consequence, an official with specific powers, summoned for this purpose, would be legally authorized to seize the debtor’s assets and sell them at auction in order to obtain the sum of money whose ownership corresponds to the creditor. Furthermore, the creditor has the power to order the official to activate the enforcement procedures, under the threat of incurring, likewise, legal consequences for the official himself in the event of a possible omissionate conduct.
On the other hand, if in a group of friends someone lies with the purpose of refraining from attending or inviting a certain member of the group to a given social gathering, the eventual discovery of the lie by the rest of the friends or the victim himself will not entail more than what is usually known as a “social sanction,” i.e., a change of concept about the person of the offender. In these cases expressing a negative opinion about the offender or “retaliating” with a similar attitude in turn would not have to carry any social sanction. Or perhaps yes, if the offender is offended by the interpretation given to his actions or considers the retaliation disproportionate or illegitimate. Logically, this can lead to an escalation of sanctions, but since this does not involve relevant interests for society nor does it generally lead to events of physical violence, everything remains at the level of the empirical social norms system.
Finally, if the interests involved gain social relevance -for example, retaliations involve events of physical violence-, positive legal norms begin to be activated that clearly demarcate the antecedents and responsibilities of each party and the compensation and sanctions to be determined and applied by part of an impartial tribunal. This is because, as is well known, one of the main tasks of the law is to “keep the peace.”
Obviously, there is a whole question of information and transaction costs surrounding the game between empirical social norms and positive legal norms. The former are more agile and immediate, better adapted to the circumstances, but at the same time they are not enough to guarantee peace when the interests at stake gain social relevance. There are cases in which the legal system takes advantage of the immediacy of the empirical norms to give dynamism to the daily traffic and at the same time reserves the last word for a case of serious controversy: it is the referral made by the positive right to the validity of uses and customs. A typical example of this is commercial law.
Although in another frame of reference, but in the same vision, we can find in David Hume an antecedent of this distinction between empirical and positive norms. The Scottish philosopher called the first “natural virtues” and the second “artificial virtues,” and it was precisely justice that was among the latter. In turn, in the 20th century, Friedrich Hayek expressly collected his political philosophy in order to enunciate his concept of “spontaneous order”, which, among other characteristics, consisted of that diffuse zone in which the norms have not yet bifurcated between empirical and positive – and for which reason it is so elusive to categorize the first volume of Law, Legislation and Freedom, entitled “Norms and order,” either within social theory or within the theory of law.
The truth is that – something that Hayek did not have the opportunity to address – in that diffuse area in which it is difficult to distinguish a social norm with empirical compliance from another with recognition by the legal system – to use H. L. A. Hart’s own concepts – a determining factor for both types of norms, in addition to the violence that its non-compliance or its subsequent retaliation may involve, is the opportunism that acts as an incentive for the acting agents -with which here we return to the Humean distinction between natural and artificial virtues: stability in possession, the peaceful transfer of it and the fulfillment of promises are three virtues that make up the idea of justice but that, for its fulfillment, require from the agents a general vision of the social consequences compliance or non-compliance, or the incentive provided by government sanctions in anticipation of non-compliance.
Opportunism on the part of private agents consists in preferring a present good to deferring that good in order to obtain a greater good in the future. For example, breaking a promise in a pressing situation constitutes a present greater good for the defaulter. However, the generalization of such default by all debtors would destroy a credit system that would, in the future, go against the interests of the entire society as a whole, including the defaulter himself. However, for the debtor, the default means an obvious immediate advantage, which can only be counteracted by the threat of a social sanction – stop being seen and treated as a “good businessman” – and, if this does not reach to modify their behavior, due to the threat of a legal sanction, such as compensation for non-compliance or, if necessary and if this non-compliance had been deliberate and obtained through a ruse, imprisonment.
It is here where the superiority of representative democracy is manifested over direct democracy, and of mixed systems, which combine long-term and even life-long terms or “while their good conduct lasts.” In these cases, the rulers exercise the “opportunism” of enforcing the law, following the adage of Herman Melville regarding “private vices, public benefits” or Machiavellian realism: greater wealth and, consequently, higher taxes come from societies in those that are characterized by a high fulfillment of promises and contracts, since it goes without saying that, abstaining from a present good to achieve a greater good in the future, generates in the long term a greater volume of wealth than enjoying a good present at the cost of giving up future good. If a government had to be revalidated daily, its incentive to stay in office would be to make short-term benefits prevail. Likewise, it is not only enough with a political system with stability in office, but also with legal and political responsibilities around the demand to make the long term prevail over the short term.
In this distinction between legal responsibilities and political responsibilities of officials, the Humean distinction between artificial virtues (the legal responsibility for the poor performance of the position) and the natural virtues (the personal desire to continue in office, through re-election or by avoiding impeachment). The legal-political system is articulated through opposite incentives: individuals have a “natural” tendency to breach promises, which is counteracted by the incentive of the legal system that establishes forced fulfillment of contracts; while the political system is expected to align incentives in such a way that rulers have “the natural tendency” to enforce contracts. This natural tendency of the rulers does not come from any “natural” characteristic of the person of the ruler but from the incentives provided by the constitutional system.
This reference to the distinction of values between the short and the long term also refers to the theory of capital and interest that Eugen v. Böhm-Bawerk and Austrian and Swedish economists who followed him in such developments, such as Ludwig v. Mises, Knut Wicksell, the already named Friedrich Hayek, Ludwig Lachmann, or the British economist John Hicks. Current economic science recognizes the element of time preference in the interest rate, but emphasizes the predominance of the value of money as its main component. In contrast to this, the Austrian and Swedish economists referred to had emphasized a characteristic of homo economicus that brought them closer to the behavioral presuppositions of David Hume: agents prefer the same good in the present than in the future, or, expressed in other terms, for an individual to agree to defer the use of a present good towards a future time, such abstention from consumption must be compensated by an increase in the future value of such good. Thus, if a person lends a certain sum of money and therefore incurs an opportunity cost by abstaining from its consumption, it is because he expects to receive compensatory interest on his waiting in the future. Of course, Böhm-Bawerk’s theory of interest received its timely evaluation by numerous economists, pointing out its weaknesses and subsequent developments by his disciples met with mixed luck – to the point that, for example, Friedrich Hayek declared that he had never undertaken the task of writing the second part of his work The Pure Theory of Capital attentive to the extreme complexity of the theory of interest that inspired him. However, re-expressing David Hume’s legal-political theory in terms of the Austrian and Swedish theory of capital represents an intellectual exercise with a significant heuristic function.
In “natural” terms, an individual will “spontaneously” fulfill a promise if he calculates that the present value of breaching it is less than the future loss of credit with respect to his creditor or the community with which he habitually – a term proper to the Humean empiricism – it interacts. This is consistent with Hume’s own theory of empathy, according to which each individual can understand how his neighbor would feel and judge a certain situation, better if he is someone known than a complete stranger. Thus, the tendency to cheat is less corroborated with those who have the expectation of interacting more than those in whom the interaction will occur in a single play – as illustrated by the best known game theory.
We can thus see how, in the absence of the incentives provided by the coercive powers on the part of the state, the natural tendency to keep promises is better corroborated among acquaintances, with continuous interaction over time, than with strangers with what will have to be done. interact only once. This is what led David Hume, likewise, to reject any theory of the social contract – since, by definition, in the supposed state of nature there would be no one to guarantee its fulfillment – and to consider that, in a primitive stage of the individual and society, the primordial political unit would have to be the family – in fact, the very etymological meaning of this term conveys a “micro-political” connotation.
It will be later Adam Smith who will extend the foundation of a human interaction order beyond the nearby nuclei through his concept of “Great Society,” in which unknown subjects are capable of spontaneously coordinating their respective activities through the signals transmitted by the system. of prices, which indicates the relative modifications in the terms of exchange of complementary and substitute goods, contemporary or deferred in time. However, neither did Adam Smith deny a fundamental function that some mechanism must fulfill in order to emerge and sustain such an extended cooperation order: the application of the norms of peaceful coexistence, which guarantee stability in the possession of goods, the transfer by consent of said possession and the fulfillment of the contracts entered into for the purpose of perfecting said transfers.
Consequently, the problems of law enforcement, which concern the degree of effective compliance with the legal norms that condition human conduct, must represent a major chapter of the political philosophy and theory that characterizes legal institutions and policies as true incentive systems.
Different degrees of law enforcement
Law enforcement systems range from ideal types of pure blind and automatic rule enforcement to pure discretion. The ideal of automatic law enforcement denies the reality of errors, the fragmentation of knowledge of special circumstances of time and place, and information costs. Meanwhile, complete discretion is the very negation of the law as abstract and general normative statements. However, defining both poles, the first factually unrealizable and the second contradictory in itself, allows us to identify the trend that characterizes the various legal systems given.
Likewise, information costs and discretion are variables that determine the degree of law enforcement. Both the criminal sanctions and the sentences to compensate damages depend to a large extent on questions of proof and evidence about the facts contained in the norm as a condition for the application of the legal solution envisaged. Likewise, the law itself imposes limits and criteria for collecting and assessing evidence, such as due process guarantees, which include the right not to testify against oneself and the inviolability of the person. Therefore, when a rule provides, for example, a fine of $1,000 – for the offender, the deterrent of said consequent depends on the degree of probability that the legal system will identify the infraction, the person responsible for the infraction and be able to prove said fact before the courts in a process supervised by the offender, who may present his defense and offer his own evidence.
Continuing with this example, if the probability of being fined is 80%, then the fine represented by the eventual offender is reduced to $ 800. Suppose then, that a driver needs to get to work on time so that the day is not deducted, which would mean a loss of $900. Then, the person in our example will maximize his choice if he violates any traffic rule, assuming the risk of losing $800 – in order to avoid the risk of losing $900. Of course, if it is discovered, your gross loss will be $1,000, but your net loss will have been reduced to $100, while if it is not discovered, your gross result will be $0, but your Net result will amount to $900, since thanks to his decision to assume the risk of being fined, he avoided losing the payment for the day of work. Therefore, given the incentive system given to the maximizing agent in our example, the most rational thing for him is to assume the risk of transgressing the norm.
This elementary example suggests several conclusions. The first one is that it should not be ruled out that society itself maximizes the utility of its resources by admitting a certain range of transgressions. However, these cases are not extra-systemic, but are justified or exempted from liability, as the case may be, within the legal system. Running a red light in order to urgently take a badly injured person to the hospital is a cause of justification. Doing it on a completely deserted street in order not to be late for work could be accepted as an acquittal. In these cases we are also faced with a certain degree of judicial discretion, in order to weigh the legal meaning of certain facts and circumstances as justifying or mitigating responsibility. But another issue related to this is to recognize that the agent himself has a higher level of information regarding his own circumstances than that of any other external observer, which allows him to make better decisions attentive to his level of immediacy with the facts. Finally, society itself also organizes itself spontaneously around a certain margin of extra-systemic regulatory breaches: in the example mentioned, society as a whole will maximize the utility of its resources if the offender arrives early at work, at the risk of paying a fee. penalty fee; while the traffic fines will have as their real destination those drivers who are not pressured by such an urgency, in which case it is more socially beneficial that they comply with the traffic regulations.
The latter brings us to another question, of singular relevance, which consists in defining the distinction between a liberal legal system and a police one. Legal systems that recognize the value of human dignity and are organized around a principle of autonomy of the will give each individual the power to decide whether to transgress certain norms at the price of assuming their consequences. Instead, police systems seek to prevent each individual from making such a decision, for the sake of certain collective values, such as security or mere compliance with the orders issued by the public powers. Of course, even in liberal legal systems, values such as the protection of human life and public safety entail certain mechanisms and norms for crime prevention, but always considering that these mean an injury to individual freedoms, not an absolute public authority.
Finally, although without definitively exhausting this debate, one characteristic of particular systemic relevance deserves to be mentioned, on which it will have to be discussed in greater depth: the relationship between the decision to increase the degree of application of the norm or to increase the threat of punishment, in order to achieve a certain degree of compliance by citizens.
Increase punishments or increase the application of the norm
As has already been pointed out on multiple occasions by various authors, when the utility maximizing agent makes the decision to transgress a norm or not to do so, the punishment provided by the norm is not represented (prison, fine, or indemnify a third party), but that multiplied by the probability of being effectively persecuted and convicted. As illustrated in the previous paragraph, a fine of $1,000 – whose probability of application is 80%, represents a risk equivalent to $800 – and the latter will have to be the magnitude to be taken into account by the agent. at the time of making your choice about complying with or transgressing the norm.
On the other hand, this too must be contextualized within a given political regime. Modern and liberal democracies have as a guiding principle to extend as much as possible the spheres of autonomy of the will of individuals and this includes leaving open the possibility that a given subject freely chooses to transgress the norm in exchange for receiving the punishment provided by it – But no more than that. The restriction of freedoms for the sake of preventing the commission of crimes is only allowed in cases in which the compromised legal interests are of the highest value, such as life, personal liberty or public safety. Outside of these cases, the only mechanism to prevent citizens and inhabitants from taking certain actions resides in the incentive system that imposes dissuasive penalties and compensation, preserving a wide margin of decision on the part of those on whether to comply with the norm or assume the cost. of the consequent punishment for the case of his transgression.
Therefore, if governments want to increase discouragement towards a certain type of behavior, they can either increase the penalty or increase the degree of application of the rule. To continue with the previous example: either the amount of the fine is increased or the probability of being fined is increased. Of course, the second option entails additional or marginal costs: greater resources must be allocated to the supervision and execution of penalties, fines and compensation. For this reason, in certain cases, it is more efficient to maintain the same level of application of the rules and increase the penalties.
In general, society already takes for granted that the prosecution of homicides, ravages, and other serious crimes require an investment of resources for which there is a wide margin of consensus, so the decision to increase the penalties or increasing the degree of law enforcement will have to be done paying attention almost exclusively to the results to be obtained. However, for cases of minor transgressions, such as traffic fines or mere contractual breaches of insignificant figures, a “self-financing” component of the punitive system itself comes into play: the fines are expected to finance in full or at least largely the monitoring system deployed in order to enforce the standard. The problem is further complicated when governments see in the fines and justice fees charged in order to make use of the judicial system a collection instrument to defray the expenses incurred by other areas of the state. In the latter case, regulatory compliance may conflict with the collection purpose that is awarded to fines and fees. For this reason, it is inadvisable for governments to see these instruments as a source of resources for expenses unrelated to the punitive system of fines itself.
It could happen that a government feels very comfortable collecting a certain amount of money in traffic fines for crossing a red light. For example, the fine amounts to $1,000 – and the probability of application is 1%. In this way, drivers have little experience of having been fined despite the fact that they know better than the government itself that on numerous occasions “they crossed in the red.” Compliance with the traffic light becomes purely optional, left to the moral criteria of each driver and the immediate conditions of time, people and place that he perceives at the time of crossing (many or few pedestrians on the streets, cars crossing on the other side of the road). the street). If a fine of $1,000 is interpreted as a risk of $10, it is not necessary to have great reasons to decide whether or not to violate the norm. However, 1% of those who crossed with the red light did indeed receive a fine of $1,000, to be executed, let us suppose, by the public authorities on the occasion of renewing the driving license, under penalty of denying said renewal, some years after the violation occurred (with which, the present value of said fine at the time of the event would be even lower). With a minimum expenditure of resources, this particular government would achieve a substantial fundraising, since also the number of transgressors and fines in absolute terms would be much higher than under the circumstance of a greater application of the norm. However, the social purpose of the repressive system is not fulfilled: fines applied in this way do not have a dissuasive effect that contributes to ordering traffic and guarantees the safety and physical integrity of passers-by and drivers.
This is how this “hypothetical government” finds itself in the following trap: the low application of the norm causes that the regulation destined to order the traffic is not effective. In our example, it is common for cars to not respect the red traffic light and consequently accidents occur, resulting in the crossing of streets, both for pedestrians and drivers, dangerous and a source of large losses for individuals. But, at the same time, such an ineffective system to control traffic not only finances itself with fines, but also generates a surplus that represents a source of income for the government to cover other types of expenses. Of course, accidents and danger on the public highway are costs to be assumed by the government and society, with which such a de facto collection system is very likely to be highly inefficient, since it ultimately generates net losses or losses for the government or for society or for both.
However, if a ruler decided to invest resources to increase the degree of application of fines for violations of traffic regulations, it would be found that, in the short term, such a decision would lead to financial loss. Such would be the costs and consequences of increasing the level of application of the rules: if technological devices such as cameras were installed, with expert computer systems that processed the information properly, not only in terms of speed but also in terms of precision on the identity of the offending car, the fines would reach the owners of the vehicles a few days after the occurrence of the offense and the process of discharge and execution of the fine was relatively agile, the drivers, in a short time, would become much more scrupulous in the face of to a traffic light. With all security it could be said that accident rates would drop drastically, resulting in a direct benefit for society and direct and indirect benefits for the government. However, there is an element at the level of government incentives to take into account: obtaining a higher level of regulatory enforcement requires a greater investment of resources and, likewise, will likely result in a drop in the aggregate collection of fines, since it will be processed a greater number of fines for an offense actually committed, but this will generate a change in behavior on the part of the public that will reduce the number of infractions and, consequently, the number of fines in absolute terms.
Of course, for this hypothetical example to have an acceptable degree of relevance, a distinction must be made between highly probable consequences and merely contingent consequences. It is highly probable that a greater application of the norm will generate a change of behavior on the part of the public and that this will translate into fewer infractions. However, the fact that this lower number of infringements produces a relatively negative tax collection result is a matter of fact on which no nexus of necessity or probability can be predicated. An increase in the levels of regulatory application may result in an increase, in a reduction or neutral to the collection purposes, the final result depending on a multiplicity of circumstances. Notwithstanding this, the mere possibility of having a collection failure already represents a negative incentive for the government that is considering investing resources in increasing the degree of application of the regulations.
Another means of increasing the deterrent power of traffic regulations without incurring the costs of greater supervision of the streets and enforcement of fines is the expeditious solution of maintaining the level of regulatory enforcement but increasing the face value of the penalty. If with an application level of 1%, a fine of $1,000 – generates the same conditioning of conduct as a fine of $10, – with a 100% probability of application, then it is expected that the same fine will be increased to $80,000 obtain the same deterrent result as a fine of $1,000 – with 80% application. Thus, the government would obtain the same behavioral results of raising the level of regulatory enforcement without investing any additional resources, beyond the announcement of the new fines. Furthermore: if in fact the behavior modification were not so successful, since the level of infractions did not drop as expected, then the government would obtain a collection award, since they would mean an increase in its income from fines.
Thus, we see how, in terms of collection costs and benefits, faced with the dilemma between increasing the level of application of the rules or increasing the value of punishments (years in prison, fines or compensation in favor of third parties), incentives operate so that the governments decide for the latter type of solutions. Moreover, a low level of normative application generates the social unrest typical of any system of coexistence rules that does not work, which leads, in a kind of positive feedback mechanism, to a demand for an increase in the severity of the punishments. It is for this reason that, when there is evidence of a low level of regulatory compliance, governments find themselves in a trap, since the very dynamics of incentives induce them to increase the severity of sanctions instead of increasing the level of enforcement of the law.
However, although the behavioral effects of both models (low punishments with high application vs. high punishments with low application) could be quantitatively similar, they are not similar in terms of long-term social and political dynamics: societies with a High law enforcement tends to be democratic and liberal while low law enforcement societies tend to be opaque and authoritarian. The biggest trap that both governments and civil society can fall into is to attribute the consequences of low regulatory enforcement to cultural factors. Such a culturalist explanation definitively closes off any possibility of finding a reasonable solution and avoiding the trap of systematically increasing levels of authoritarianism.
This tendency to increase authoritarianism on the part of governments and societies manifests itself at various levels. One of them is the aforementioned increase in prohibitions and punishments. But another factor of authoritarianism is also represented by the wide margin of discretion that a low level of law enforcement grants to governments, since they are empowered to raise said levels of application at their own will.
To continue with the example with which the exhibition has been illustrated, although a fine for passing a red light of $80,000 that has an application of 1% is experienced by the population as a fine of $800 – with 100% application, nothing prevents the government from deciding to activate a mechanism for the control of infractions that raise the application to 50%, for putting a case, which means having fines of $40,000 in practice.
Another aspect of the discretionary law enforcement consists of its selective application to opponents and social groups that fulfill the function of “scapegoats.” The history of humanity, fundamentally of the 20th century, offers unfortunately plenty of examples of such types of practices: application of norms that apparently had fallen into disrepair on certain sectors of society, investigations and meticulous follow-ups of opponents and their families concerning compliance with regulations rarely required of the rest of the citizens, are news that are familiar to the inhabitants of countries with undemocratic governments.
On the other hand, countries in which compliance with the rules is relatively low, generally sanction and enact extremely severe laws, without greater social or political resistance, since, considering its low compliance, few grant it the seriousness that they truly have. However, bearing in mind that the primary and exclusive function of every government consists of enforcing legal norms, the lower the degree of application of them, the greater the degree of discretion that such government will have if it decides to raise the degree of regulatory compliance, either in general terms for the entire legal system, or for a certain set of rules and either for the entire population as a whole or for a selectively identified part of it.
Of course, the selective application of the rules, when it is practiced without distinguishing individuals or social groups, works as a “fine-tuned” mechanism that makes the legal system more efficient. What is sought here are those anomalies that imply an authentic dissolution of the Rule of Law and the outright persecution of individuals or social or ethnic groups. It goes without saying that a legal system with a very high degree of law enforcement gives governments a very restricted margin of maneuver, so it could also be said that the high regulatory application works as a safeguard aimed at guaranteeing equality before the law and to avoid the aforementioned persecutions.
Culturalist explanations vs. systemic ones
The opinion that adherence to the norm is a cultural characteristic that varies from people to people is widely extended, to the point of becoming commonplace. There would be countries or regions that have a higher level of compliance and respect for the law, while kilometers further east or south, the behavior of individuals would change drastically. Theories about climates, religions, the role of civic education, and so on attempt to explain why certain countries abide by the laws they give themselves while others use them as “fa trap for fools”
This writing tries to defend the opposite thesis: it is the level of application of the norms that determines the cultural characteristics of the peoples and not the other way around. Culture is an adaptive response to the institutional determinants in force in each country.
To illustrate this last assertion with a hypothetical example: In a country where regulations are 50% enforced -that is, the citizen interprets it as a coin that turns in the air- no one will want to be within the group of inhabitants whose decisions they are constrained by the rules, since that would place them at a strong disadvantage compared to their peers who do not receive equal limitations, even more so if they are their competitors. Furthermore, regulatory transgression – such as tax evasion, in a context in which competitors do not pay their taxes – can often mean commercial survival for the individual. If, for example, if the municipal authorities impose a series of charges on restaurants in terms of hygiene conditions, number of tables per square meter and labor regulations, but also does not control compliance with such provisions, the merchant who complies with them it will be at a severe disadvantage compared to its competitors, who will be in a position to offer better prices or reinvest the profits from the savings generated by the non-compliance with the regulations in a better quality of service in other aspects of the restaurant.
Of course, inspections by the control body represent a costly expense to finance and, therefore, governments deploy “exemplary actions.” That is, for our example, they inspect a small number of establishments, but enough so that all the rest of the non-inspected businesses still comply with the standard in the event of receiving a random inspection. In these cases, the selective law enforcement is highly efficient: since it achieves high compliance with the law at a relatively lower cost.
However, cases that are dysfunctional have other characteristics. The first of these is that the level of law enforcement by the public powers is really low. The second is that the penalties – imprisonment, fine or compensation – are extremely high, since their main function is to counterbalance the relatively low degree of regulatory application. The third is that the rulers have such a high margin of maneuver, attentive to the low habitual application of the norms, that their application has the same effects as a norm created at the time by the government for a special situation. In other words, in practice the Rule of Law has been dissolved.
This leads us to the distinction between a government that makes decisions based on rules and principles versus another that motivates its decisions on matters of opportunity, merit or convenience, that is, pure discretion. Of course, here we are also faced with two polar definitions, one and the other model of government are ideal types in the Weberian style. Every rule-based government needs to carry out its action with a certain level of discretion. At the same time, even a tyrant, who wields power despotically, needs a minimum of predictable structure, at least to maintain his own identity as a ruling subject. However, it is relevant to establish the distinction between government decisions based on norms and principles and those that are guided exclusively by reasons of opportunity, for the purpose of making a judgment on the level of individual freedom that predominates in a certain political regime.
If individual freedom is defined as the absence of arbitrary coercion – as F. A. Hayek did in his The Constitution of Liberty (1960) – it is clear that a government that bases most of its decisions on rules known to all will have to be less arbitrary than the one who makes decisions according to his own criteria of opportunity. Of course, this also requires an effective notion of the principle of equality before the law, since decisions based on norms that prescribe privileges according to definitions of races, estates or social classes will also be arbitrary. The same occurs with the other characteristics of what some authors have called a free government: division of powers, system of cross-checks between them, declarations of rights and guarantees, principles such as that of closure, the notion of representativeness of public offices and the requirement of their suitability to exercise them and other elements that make up the Rule of Law. The protection of individual liberty as the absence of arbitrary coercion comprises a whole set of political institutions and judicial procedures that make the limits to the free will of citizens and rulers legitimate. However, the level of law enforcement has generally been considered sidelong for both political and legal theory, relegating it to a purely sociological and even anthropological level. The law enforcement thus appears as a kind of “logical form” of law and politics, since it does not fully belong to either of the two territories, but rather delimits them.
This meant that the level of normative application has been seen as a social phenomenon, which in any case could be studied by an intersection between sociology and economics, as can be seen in the studies carried out by Gary Becker at the time; the same as the approach practiced centuries ago by Cesare Beccaría (who Joseph Schumpeter would label “the Italian Adam Smith”).
However, the high or low level of application of legal norms does not in itself constitute a sociological or anthropological phenomenon, since the commitment to the effective law enforcement depends directly on a political decision. This political decision activates a series of feedback mechanisms in society that allows it to be described as an autonomous and automatic system, as is any incentive system, but such uses and social practices are not the cause of regulatory compliance or non-compliance, but rather its adaptive response to the aforementioned political decision that underlies at all times.
Therefore, an approach that characterizes low regulatory compliance as the social response to the political decision to implement a low level of law enforcement requires a behavioral model consisting of individual utility-maximizing agents in their decisions, both at the level of citizens as well as government officials and magistrates. According to this behavioral model, it is government agents who seek to maximize their power by reducing the level of law enforcement, in order to gain discretion in its exercise; while ordinary citizens seek to minimize the costs of such discretion on the part of the rulers trying to evade compliance with a law that in a relatively low number of cases is actually applied.
Putting an end to such a state of affairs depends on a political decision: that of enforcing the law for the majority of cases and limiting exceptions to it to the minimum possible. However, since this will bind the rulers to the law and reduce their discretionary power, it should not be expected that such a decision will be taken spontaneously by the governing bodies, but under pressure from the branches of the state whose function consists of the control of government acts, such as the congress and the judicial system.
However, as already mentioned, the political system itself is in a trap, since raising the levels of law enforcement right off the bat would mean making effective punishments and sanctions pressed for a lower level of enforcement. For this reason, an improvement in the levels of law enforcement requires, previously or at least simultaneously, a reduction in the volumes of repressive sanctions, fines and compensation. A similar reasoning must be done for tax collection cases, since many times the tax levels discount a certain evasion rate. Reducing the tax evasion rate requires a prior or simultaneous tax reduction.
Law enforcement and political regime
As has been stated, the degree of compliance with legal norms by a population does not depend on cultural issues (far from it, ethnic), but is a variable on which governments can influence in a decisive way. The main instrument that governments have when it comes to encouraging (or discouraging) citizens’ compliance with the right is to regulate the degree of law enforcement. Once it has been decided what degree of regulatory compliance by the population the government intends to achieve, it remains to implement an efficient use of the budget item in order to achieve said objective while sacrificing the least amount of resources possible.
Thus, if a government decides that regulatory compliance should be close to 100%, then it will have to provide its supervisory system, security forces, and its judiciary with the necessary resources to obtain such a degree of law enforcement that show a clear signal to the population that the sanctions, repressive or pecuniary, that the law provides, will have to be applied. This will mean that whoever complies with the law will not incur any opportunity cost in terms of waiving possible advantages derived from its non-compliance, since such non-compliance by its competitors and other third parties is highly unlikely.
Of course these considerations belong to the field of “instrumental reason.” Before discussing the necessary mechanisms to achieve a high degree of compliance with the law by the population, it is imperative to discuss what type of law such a political regime will have. A democratic, modern, and liberal regime requires that the laws respect and ensure the validity of certain values, such as recognition and respect for human dignity, the right of each individual to have their own life plan, or as at the time It had been listed by the Scottish philosopher David Hume, ensuring stability in possession, his peaceful transfer of property, and the fulfillment of promises. It is useless to theorize about techniques to achieve a high degree of compliance with the law, if they are to be used by a regime that is dedicated to curtailing freedoms.
However, theorizing about law enforcement takes on vital importance when it comes to considering whether a low level of law enforcement denatures the Rule of Law in such a way that it implies, de facto, a change of regime. That is, when it happens that, under the shell of a constitutional system, an increasingly authoritarian system begins to develop, which successively curtails freedoms and deteriorates the viability of individual life plans, denigrating the dignity of people, through the file to weaken the application of the legal norms destined to protect said rights, guarantees, and freedoms.
For this reason, a liberal political regime requires a substantive content that involves the express recognition of individual freedoms and rights, but also requires in a vital way the respect and enforcement of those procedures that make their effective exercise possible. This is, through a high degree of law enforcement, previously inspired by those political principles typical of liberal democracies.
When we are in the presence of a constitutional system that is designed to guarantee the existence of a government limited by the law itself and to protect the freedoms and rights of individuals, a low level of application of legal norms implies a true denaturalization of such a regime. political and a de facto transition to an authoritarian system of government. As has been pointed out, given that the low law enforcement imposes high opportunity costs on those who spontaneously choose to comply with the law and places them at a severe disadvantage compared to their competitors, the reduced law enforcement works as an incentive to generate low regulatory compliance by the population. In turn, assigning such low regulatory compliance by citizens to cultural or ethnic characteristics works as a pseudo-sociological foundation to increase punishments and continue the aforementioned de facto transition towards an authoritarian or totalitarian system.
A similar mechanism had been noted at the time by Friedrich Hayek in his well-known book The Road to Serfdom, although he did not focus so much on the low law enforcement as on the pretexts and excuses used to justify such a transition towards an authoritarian system. Generally, in a mistaken way, the “road to serfdom” is characterized as a process of increasing state interventions, but such assertion does not constitute the core of either the aforementioned book or about what should be understood by a road of servitude. As Hayek stated on that occasion, we are not faced with a political process of this type when governments intend to carry out a plan of social and economic transformation in accordance with a model of society whose characteristics are rarely stated expressly and which is placed above the procedures and constitutional safeguards designed to legally limit the power of governments and defend the rights and guarantees of individuals. Thus, the system of constitutional safeguards is seen as too onerous an obstacle for the transformation process set in motion and, consequently, it begins to be de facto repealed through a low level of regulatory application and the gradual replacement of a political decision-making system. based on rules by another of decisions taken based on the opportunity, merit and convenience related to the aforementioned model of society to which it is aspired to achieve.
Both in the case of the path of servitude, as of a smooth and flat deterioration of the levels of law enforcement, we find ourselves in the presence of a transition of political regime: from the Rule of Law towards an increasingly authoritarian system: the government of the pure will of men, free from legal and constitutional ties. In both cases, the validity of the notion of individual freedom as the absence of arbitrary coercion is under serious threat.
As it will have to be repeated every time it is necessary to do so, it does not depend on cultural, historical or ethnic traits. Such processes of political regime change respond to an incentive system that perverts the functional dynamics of the Rule of Law. In the case under study here, the low application of legal norms.
But to describe with a greater degree of precision what the aforementioned process of de facto change of the political regime, from liberal democracy and the Rule of Law to authoritarian or totalitarian systems consists of, it is necessary to delve into the distinction between decisions based on rules and those that are They are motivated by reasons of opportunity, merit or convenience, that is, in the exercise of discretionary power.
As previously admitted in this writing, every government official, whether he belongs to the administration or is a judicial magistrate, enjoys a certain margin of discretion in the exercise of his functions and within the framework of competences that the Constitution and the laws give him. grant. Thus, a judge can say the right for a specific case that is subject to his jurisdiction within a range of alternative solutions that the law and judicial precedents impose on him. Thus, we are not faced with a mechanical law enforcement -which is reminiscent of the modern aspiration of “mechanization of thought” – but rather in a judgment of the adequacy of the rules to the specific case that the courts carry out taking into account the special circumstances of people, time, and place that the law, being expressed in abstract and general terms, cannot foresee. However, such adaptation of the law to the specific case should not in any way distort the meaning, scope and purpose of the law. Something similar occurs with administration officials, who enjoy certain powers granted by law and who have a margin of discretion to operate within it, which is subject to control by other hierarchical state bodies, superior or judicial.
Likewise, there are situations in which both judges and public officials deviate exceptionally from the abstract and general guidelines of the laws without them configuring any illicit, that is, exceptions that are within the legal system itself. Thus, we find ourselves in the judicial sphere with judgments that are based on notions of justice and equity and in the administration sphere with discretionary powers expressly granted to officials by law.
In the case of judicial decisions based on reasons of justice and equity, it must be taken into account that, although the substantive law in these cases is set aside, the other procedures informed by the principles of due process are respected: the law to be heard, to offer evidence and supervise its production and to access an impartial tribunal, among others. Likewise, so that the judicial resolution based on equity is not arbitrary, it must also configure a judicial precedent and it must not be contradictory with other judicial precedents, since, if the courts depart from the substantive law in order to attend to the special circumstances of the case, they should resolve in the same way before similar cases in which the same circumstances that motivated a resolution for equity have been or were presented.
With respect to the cases in which the law itself grants a public administration official a certain scope of discretion on a given matter, it should be noted that said powers do not violate higher-ranking norms, such as constitutional rights and guarantees. A public official has an indisputable margin of discretion to decide what color to paint the building of the body under his direction and, if he does it with too strident color, in any case he will incur not a legal responsibility but another of strict order. political, according to which a higher-ranking official shall proceed to exercise his respective discretionary powers to remove him from his functions.
Outside of these specific cases, it is expected that in the Rule of Law system all decisions, both governmental and judicial, will be taken based on rules that are intended to limit the arbitrariness of those. This limitation allows individuals to conform their expectations regarding the expected behavior of other individuals and of the powers of the state themselves and, in such a way, to devise their life plan and coordinate it with the plans of their fellow human beings. Such a legal system demarcates the spheres of individual autonomy, within which each person should not be accountable to anyone, except to their conscience, and provides for a conflict resolution system for the eventuality that a dispute arises between individuals or between individuals. and the state. Such controversy does not necessarily have to consist of a violation of the norm, but it can also come from an interpretative disagreement between the parties who are convinced that they are acting according to the law but who, nevertheless, reach conflicting decisions.
In such a system of dispute resolution, based on legal norms known to all, be they written or customary, arbitrariness is reduced to cases of judicial error – generating natural obligations, that is, of mere moral compliance. Consequently, a system of administrative and judicial decisions based on rules contributes to materializing the ideal of respect for individual freedom, understood as the absence of arbitrary coercion.
Therefore, it is understood how the low law enforcement by the public powers, which generates incentives for systematic legal non-compliance by individuals and, likewise, grants a wide margin of discretion to those public powers to carry out a whimsical law enforcement, implies a real change of political regime.
Conclusions
To a large extent, the deficiencies in the application of legal norms were usually attributed to cultural issues related to a low level of regulatory compliance by the population because the first of the concepts – that of normative application – is extremely elusive when it comes to categorize it as a matter of law or politics. As has been pointed out, the law enforcement fulfills a function similar to that of the logical figure described by Ludwig Wittgenstein in his Tractatus Logico-Philosophicus: it does not fully belong to one or the other discipline, but rather marks the contours that they limit each other. The law enforcement depends on a political decision, but such a political decision makes up the defining characteristics of a political regime: Rule of Law or Rule by Law. Systems that have a low regulatory application give governments too wide a margin of excessive discretion to selectively apply the law, without respecting the principle of equality of the law and with the purpose of persecuting dissidents and opponents, which results characteristic of authoritarian and totalitarian regimes.
On the other hand, although it concerns an eminently legal field of action, the dynamics of the incentives generated by a low regulatory application prevent it from being increased by intra-legal mechanisms. This is because, in general, a low level of regulatory application is accompanied by relatively high penalties, so that the activation of judicial mechanisms aimed at achieving a higher level of law enforcements by officials leads to the generalization of sanctions disproportionate to the protected legal assets.
Therefore, the solution to such problems of normative application does not depend on the judicial system, but on its political processing through the legislative branch, since, to get out of the trap in which the political system is involved, in addition to increasing the provision of resources destined to ensure compliance with the law, the penalties provided should be reduced in order to function with a lower degree of application.
A good example of this could be the reduction of taxes in a framework of high tax evasion, which can be proposed by virtue of principles of equity and which can also be aimed at achieving higher tax collection. This last aspect is of particular relevance when considering the political incentives to proceed with the aforementioned reform. This is because, as has been stated, any increase in the law enforcement implies a reduction in the level of discretionary exercise of power, that is, a greater limitation of the power of governments.
In this last aspect, the political action to be deployed in the legislative chambers once again takes on importance, since such reductions in the levels of discretion can only be obtained thanks to the exchange of laws that characterizes all legislative work.
Finally, it should be noted that, if what is sought is a higher level of law enforcement in order to limit the discretion of the executive branch, then the most effective strategy will be to demand a reduction in the levels of taxes, penalties and fines, since this will serve as an incentive so that, in order to maintain the previous level of social control, to proceed, in view of the reduction of penalties, to raise the levels of law enforcement, thus generating a virtuous circle according to which the rates of spontaneous regulatory compliance by the population.
Such a political strategy is entirely consistent with the notion of every constitutionally limited government and every free society, according to which each citizen must enjoy the widest sphere of individual autonomy. Likewise, the results to be obtained in this way contribute to materialize the ideal of individual freedom understood as the absence of arbitrary coercion, since this depends in a singular measure on the characteristics of the legal system and its enforcement by public authorities.
However, as was duly stated, when a political legal regime has deficient levels of law enforcement, it is positively fed back adding a low rate of regulatory compliance by the population, thus worsening in a process of incessant deterioration. Consequently, those objectives of institutional improvement can rarely be achieved without political determination on the part of citizens committed to defending their freedoms.
Notes On Liberty 