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Wednesday, October 24, 2012

What is it about Common Law jurisdictions?

I blogged recently on America's notoriously high incarceration rates.  An interesting, related fact, much less well known I think, is that common law jurisdictions worldwide have, on average, higher incarceration rates than civil law jurisdictions.  (Harvard Law Prof. Holger Spamann has a 2008 working paper on this that he has not published or even posted on ssrn; nonetheless it's available from a U.Texas weblink.  Publish it, Holger!) This is one insight from the growing work on "legal origins," most of which focuses on private law and economic growth topics.  This scholarship tries to isolate the effects of a nation's legal system by looking to its origin (often through colonization) in either a contintental (mostly German or French) civil law model or in English common law. 

The difference between the average common law jurisdiction's incarceration rate and that of the average civil law jurisdiction is not nearly as dramatic as the outlier status of the U.S. incarceration rate compared to all others, but it is notable and statistically signficant nonetheless.  What is likewise interesting is that common law nations also (or nonetheless?) have, on average, somewhat higher crime rates.

I can't offer an explanation for this and won't survey the various theories.  But I will venture a speculation and an observation.  The observation is that common law nations tend to value, and certainly claim to value, limited government and individual liberty more highly the civil law nations, yet they end up with criminal punishment policies--coercive state practices--that limit or deny liberties to a greater share of their citizens.  The speculation is that some part of the explanation lies well beyond a deterrence-oriented cause-and-effect framework of more punishment responding to more crime, or even of more crime perversely resulting from more punishment.  I suspect the higher crime rates have something to do with with the stronger tradition of individual liberty and concomitant suspicion of government; maybe something like less government and respect for government > lower social solidarity and social order > more interpersonal violence > (a) more punishment to address the violence and/or (b) a political ethos that supports punishment in part because of the background rate of violence.  That suspicion is informed in part by the thesis of Randolph Roth's excellent book American Homicide, and by the “civilizing process” thesis of German sociologist Norbert Elias.  Alernately (or also), maybe it has something to do with ideas of liberty and citizenship: high valuation of liberty travels with ideas of greater personal responsibility for that liberty and harsher treatment of who abuse and forfeit it.  Or, higher liberty values travel with greater individualism, which incline polities toward weaker norms of solidarity with and reintegration for violators. Again, mere hunches.



Posted by Darryl Brown on October 24, 2012 at 01:56 PM | Permalink

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A third possibility (at least for the question of why there are higher crime rates): the increased focus on liberty inculcates a "devil-may-care, as-long-as-I-get-mine" attitude toward the law and toward others, without going so far as to suggest that the common law encourages sociopathic behavior. It's more like individuals think they should be free to do what they want, so they ignore rules about things they think are less important (e.g., speed limits, regulations on alcohol and drugs, etc.), and then the small violations either lead directly to major crimes (because people tend to get into accidents and fights when drunk, etc.) or creates a sense that the law is more a set of guidelines that doesn't really need to be followed strictly, and then it goes downhill from there.

Regardless, it would be interesting to look at mixed jurisdictions, such as Quebec, Louisiana, and Scotland, to see where they fit into the broader story. Quebec would be particularly interesting since private law is based on the civil law, but criminal law is based on the common law.

Posted by: Charles Paul Hoffman | Oct 24, 2012 2:21:17 PM

You might want to check out Nicola Lacey's fantastic book, The Prisoner's Dilemma. She makes a similar argument to yours, though you should note that Spain has the second highest rate of imprisonment in Europe. Her argument is that countries with a stronger commitment to social welfare have lower rates of imprisonment; those with a stronger commitment to market individualism have higher rates; and part of the reason is that in the welfarist countries, the expectation is that the individual will reenter society and become a productive member of the community.

Posted by: Eric J. Miller | Oct 24, 2012 2:55:45 PM

Criminology is like many fields, where causation and correlation continued to swirl about even in the face of ever increasingly methodological sophistication. Please for the love of G-d don't give any assistance to the horrid coding disaster of legal origins theory moving into comparative criminal law. Its lovely for provocation, but from LaPorta, et al. down it rarely does more than recapitulate convenient stereotypes, and always gets broken down by more particular studies. I second the Lacey recommendation. It at least works with a substantive categorical explanation rather than a senseless ahistorical/transhistorical formal one.

Posted by: EuroCrimScholar | Oct 24, 2012 3:07:42 PM

As for higher rates of crime in common law countries, I blame the Irish. (I'm joking, of course. Mostly.) But, from my quick look at the not-to-easy to read tables, and from what I have read elsewhere, the other countries w/ very high incarceration rates include Russia (a weird mixed legal system, but closer to the civil law than common law) and China. Brazil also comes out pretty high- much higher than most common law countries. I take this to support my pet theory that very large countries (*) are hard to govern, have a lot of social strife, less feeling of community, and so are bad ideas. Of course, there's not much to do about them these days.
(*)"large" here means both large in size and in population, so Canada and Australia, both of which are large in size but fairly small in population, with the population heavily concentrated, don't count. Interestingly, the other group of countries w/ very high incarceration rates are relatively poor and small states, including a lot of islands, regardless of the type of legal system they have. I'm not sure what to say about that, except I expect that there is a lot of inequality that leads to problems and is highly salient.

Posted by: Matt | Oct 24, 2012 4:03:43 PM

In response to Charles's comment, Louisiana is the "prison capital of the world." The statistics are staggering:

http://www.nola.com/crime/index.ssf/2012/05/louisiana_is_the_worlds_prison.html

So much for civil law being civilizing...

Posted by: Prison Planet | Oct 24, 2012 7:05:31 PM

Darryl writes: "maybe it has something to do with ideas of liberty and citizenship: high valuation of liberty travels with ideas of greater personal responsibility for that liberty and harsher treatment of who abuse and forfeit it. "

It's hard issue, but I tend to think that's the most likely explanation.

Posted by: Orin Kerr | Oct 24, 2012 11:33:11 PM

I like Lacey's book as well, but it likewise doesn't really answer the causal question--why do generous social welfare states incarcerate less--though she has some good thoughts on that. And she can't really answer--probably because no one can--how one gets 'from here to there.' To incarcerate less, one should expand social welfare, which means be the kind of polity that favors generous social welfare, which is probably the kind of polity that opts for less incarceration anyway...

The civil/common law findings, for prison and crime rates, only works in the aggregate, of course, and it's not a dramatic difference; there are lots of individual exceptions. And there are more ways to subdivide those two categories, plus other variables to consider. Also, more binary divisions to try, notably a nation's relative inequality and ethnic diversity. Post-WWII (ie, while building social welfare systems) until recently, most European states have been quite ethnically homogenous, and homogeneity correlates pretty well with social welfare generosity. I leave all that to criminologists.

Posted by: Darryl Brown | Oct 25, 2012 10:03:36 AM

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