Thursday, October 13, 2011

Knowing the Law vs Complying with the Law

Yesterday morning, I had a nice discussion with one of my juniors in the Faculty of Law, University of Indonesia, @najmulaila, concerning the concept of legal awareness. The basic case is quite simple, she's complaining about the law students' attitude who make a right turn within the faculty, despite knowing that it is clearly prohibited. She further argued that it's useless to talk about legal compliance in Indonesia if these students don't follow the rules themselves. After all, according to her, what's the purpose of knowing the laws, if you don't comply with them? Suffice to say, she is a proponent of legal awareness campaign, i.e. having more awareness of the law should be translated into an increase in legal compliance.

Here where I quickly have a different opinion. Knowing the law does not necessarily mean that you will comply with such law. The reason is simple and can be traced back to the basic assumption of Law and Economics, people are rational being and they respond to incentives. From the fact that most students violate the no-turning-right rule, I can conclude that the Faculty has not imposed any sanctions to the violators. No sanctions means no costs to these students to violate the rule. Hence, what are the incentives for them to comply? Surely we can't assume that these young students are those "righteous people" who will follow the law simply because it is the right thing to do as depicted in legal philosophy course. Plato always dreams of having a philosopher as the king because he exactly knows that it is impossible to have such king in the real world.

Of course, being a diligent law student, she didn't immediately agree with me and instead offered another argument: my line of thinking is the same with corruptors! They corrupt because they know that the benefit of corruption is bigger than the costs (such as going to the prison). I almost shouted "EUREKA" when she actually said that because it is precisely what I have argued before in some of my posts (here and here). This is how Law and Economics explains the behavior of criminals, they calculate the costs and benefits of their criminal acts and whenever they decide that the benefits exceed the costs, they will most likely conduct the crime.

If we think it through, assuming that knowing the law will increase legal compliance is a dangerous assumption, because it is a highly misguided assessment of human behavior, and there are many consequences to such assumption. Take the law students case as an example. You can always say to them how humiliating their act is, but unless the Faculty takes a real action toward the violators or unless making a right turn will cause the students to be involved in a serious accident, I bet that the rate of violations will never decrease significantly. What do you expect? Are these students hypocrites? I don't think so. They are mere human.

Another example: it is possible that the people who understand the law can find a leeway and use such understanding for their own benefits which of course is not in line with our hope that increasing their awareness will induce them to comply with the law. So what should we do?  The answer is better legal enforcement! Legal enforcement should never be separated from the law itself.

You can make the best law in the world, but if you have no one to enforce it, such law would be meaningless. This is especially true when you are trying to regulate people's behavior. Oliver Wendell Holmes correctly pointed out that people are only interested with what judges will do with the law. In other words, people are more interested to know what legal authorities will decide against them in certain cases and not only what the law say.

By this, I'm not talking only about criminal law, this is applicable for any subject of law. Suppose there is a law saying that certain contracts are prohibited and will be deemed void by operation of law if people entered into such contracts. If people know that the judges will declare these contracts null and void whenever the parties bring them to the court, they will most likely not sign these contracts in the first place.

So there we have it, a short discussion on how we should take a look at the law. One important thing that I learn from Law and Economics: some of the concepts are so obvious that people tend to disregard them entirely. At least that's the experience of Ronald Coase and his concept of Transaction Cost. The concept was made when he's still in his 20s and yet, he received his Nobel Prize in his 80s. It took 60 years for people to realize a concept that is so obvious to everyone if they think it through. Ain't that crazy?


eka_aa Friday, October 14, 2011 3:10:00 PM  

nice article pram.

i would like to highligts your last sentence in fifth paragraph which is written "Legal enforcement should never be separated from the law itself"

Based on that, i try to campare it with international law. Many people criticized international law is not a law on the ground there is no law enforcement. But, what we saw today, international law still used to regulate state interaction. if you stated that law can not separated from law enforcement what your opinion about international law which is very loose with the enforcemet?

I'm supposed your answer will cited from rational choice theory (just my assumption hehe) that stipulated states as rational actor like human. States relation is based on cost-benefit analysis. if their intersest meet, they will make an agreement (international law). In this situation, i saw, enforcement is unnecessarily for international law. Each state will comply international law because they will suffer high cost if they don't comply it (Andrew T. Guzman said reputational lost).

sorry, if my english is not good :)


Pramudya A. Oktavinanda Saturday, October 15, 2011 1:01:00 PM  

Thanks for the comment. International law has a different structure with laws within a single territory. First, the numbers of its subjects are limited. You won't expect to see a new country emerges every day. Second, the subjects of international laws are here to stay, so as you correctly said, there is a reputational issue within the enforcement of international law.

Elementary game theory can also help to analyze countries behavior toward international law since the decision made by one country will affect the behavior of other country.

Think international law like an agreement (doesn't have to be in a formal form as customary is also a part of international law) within a group of people where though there is no supreme body to enforce the agreement in case a party breach its obligation, the dynamic of relationship between the parties will eventually force the parties to follow the arrangement that has been made.

Of course we must understand that this kind of agreement will only work effectively if all the related parties have similar position and power. If not, the stronger party can abuse its position for its own benefit. Again, this is a logical consequence of a situation where there is no effective legal enforcement.

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