Summary of JOIE article (Volume 15 (2) 2019) by Daniel J. D’Amico, Associate Director, The Political Theory Project and Lecturer in Economics, Brown University, and Claudia Williamson, Associate Professor of Economics and the Drew Allen Endowed Fellow at Mississippi State University. The article is open access and available on the JOIE website
Multiple empirical studies have now documented a strong and robust correlation between a nation’s prison population rate and whether it was founded by the civil or common law tradition (Spamann 2010, DeMichele 2013, 2014, D’Amico and Williamson 2015). Specifically, countries founded by and currently operating under the civil law are associated with significantly smaller prison populations than common law countries.
Legal origin categories are shown to correlate with a variety of economic and social institutions and outcomes, including: procedural formalism, judicial independence, labor laws, and government ownership of banks and media. “In all these spheres, civil law is associated with a heavier hand of government ownership and regulation than common law (La Porta et al. 2008, 286).” Hence, the positive correlation between the common law and prison population rates is one arena wherein the usual relation between the common law and small government is conspicuously inverted. Thus, this observation demands further investigation and explanation.
The typical explanation for divergent social and economic outcomes provided by legal origins research, references the distinct historical experiences of (mainly) France and England. Unique events in each legal mother-nation shaped incentives for different institutional choices during key moments of revolutionary history. In particular, the British common law emerged from a decentralized, pluralistic, and relatively competitive system of overlapping jurisdictions within the Anglo Saxon territories prior to and throughout the Middle Ages. Such decentralization and the incentives fostered thereby were preserved and reaffirmed amidst the key revolutionary moments of British history (Glaeser and Shleifer 2002).
In contrast, Napoleon’s hierarchical strategies during and after the French revolution aimed to impose concentrated authority by subordinating local magistrates via codified royal edicts. Djankov et al. (2003) describe these organizational differences as unique institutional strategies given the different levels of civic capital and social disorder in each context. More dictatorial legal policies were implemented in France relative to England as the French revolution proved to be more violent and socially disorderly than episodes of revolution within Britain. Such organizational differences across commercial legal processes and their divergent rates of long run economic performance have led many to infer superior economic efficiency to the common law relative to the civil (Hayek 1960). Very little attention has been paid to the organizational properties or social outcomes of criminal legal institutions across legal origins.
In our paper, we investigate the long run legal histories of England, France, and the United States to see if the organizational qualities most typically found within the respective commercial institutions across legal origin categories also held consistently within their respective criminal justice systems. If the common law is generally more decentralized, and the civil law generally more hierarchical regarding commercial law, we ask if such patterns persist regarding the production and administration of criminal justice services? Is the correlation between the common law and prison population rates demonstrative of a relation between institutional decentralization and prison growth? Or, do the criminal justice sectors within different legal systems possess a unique organizational structure from those recognized to operate throughout the commercial and civic legal sectors?
If there were accurate quantitative measures representing the degree of organizational hierarchy within criminal justice systems, and across a large sample of nation states and throughout history, then we could more confidently test causal implications. Unfortunately, no such metrics exist. Thus, we conduct a qualitative survey of legal histories across England, France, and the US to seek evidence of the organizational trends and patterns within the respective criminal justice systems of each country.
We did not find evidence that the organizational traits of criminal justice systems were consistent with the organizational traits of commercial legal sectors within the same country. In contrast, we found that the historical trends of criminal justice institutional organization were essentially opposite to those of commercial legal institutions within the same country. In short, the criminal justice system of England was an island of hierarchical structuring amidst the broader sea of decentralized commercial and civic legal procedures. Perhaps ironically, much inspiration for key developments of modern British criminal legal norms was taken from the French. Inversely, the criminal justice system of France retained a stronger commitment to decentralization despite the more hierarchical and centralized institutional forms more common throughout French commercial law. Again, perhaps ironically, key aspects of French constitutional protections of individual rights during criminal procedures were inspired by American state constitutions.
Given this asymmetric pattern of organizational hierarchy across Britain and England, we propose a model whereby contemporary imprisonment patterns are understood as a bi-product of centralized criminal justice institutions. If hierarchies are generally associated with greater rates of bureaucratic capture and rent-seeking relative to decentralized institutional forms, and mass incarceration is accurately identified as a manifestation of governmental inefficiency, then such organizational dynamics appear to loosely accord with the general cross country correlations of prison population rates. In other words, bureaucratic prison expansion can be recognized as a form of rent seeking and it accumulates most significantly within more centralized institutional contexts.
To illustrate that deep historical patterns shape current imprisonment, we apply our framework to current English, French and US incarceration rates. The U.S. has fostered the most centralization of criminal justice, thus creating the largest organizational difference across decentralized commercial and hierarchical criminal legal spheres. France’s organizational differences were inverted from the English and U.S. experiences with stronger protections in criminal law. England retains decentralized commercial law and relatively centralized criminal law, but possesses less dramatized differences between the two legal realms.
And, these differences appear to matter. England’s average annual incarceration rate is nearly 50% greater than France’s. The U.S. incarceration rate is nearly 7.5 times greater than France and represents the supposed archetypal case of “mass incarceration.”
In the early twentieth century, the U.S. experienced a substantial overhaul of institutional organization, including federal government expansion within the criminal justice system. City, county, and state jurisdictions, previously financed and managed by local efforts, were thereafter subsidized and regulated by a growing body of federal policies and advisory boards.U.S. prison growth illustrates how organizational changes toward hierarchical decision-making create lower cost opportunities for rent seeking in the criminal justice sector.
Contemporary France possessed similar public opinion and partisan trends as the U.S. but avoided comparable prison growth. Alternative bureaucratic infrastructures operated as diversionary channels of state spending resulting in more usage of non-incarceral punishments. Rather than larger budgets directly expanding the size and authority of police, prosecutors, judges, prison contractors, and prison labor administrators, financial resources flowed towards probationary, psychiatric, and public health services.
England’s contemporary criminal justice system contains unique structural features apart from the U.S. that shaped its incarceration outcomes towards similar growth but at lower levels. For example, the English legal system harbors a stronger separation of powers across judges, local magistrates, community police officers, and national legislatures. The decentralized authority interests preserved local level discretion rather than enhance royal or parliamentary authority over sentencing, legislation, or enforcement. These competing interests helped to avoid prison growth.
Unlike the U.S. where local state officials were inclined to consume prison space as a public good and consume broader federal funding sources, England appeased competitive bureaucratic interests by reaffirming local discretion and indirectly promoting prison alternatives.
Organizational structures are not fixed or unchanging in the long run. Early institutional selection shapes current outcomes and subsequent key historical moments reaffirm these structural patterns through continuous opportunities of institutional selection and change. Such influences are not fully deterministic but rather heavily shaped by some degree of path dependencies. How subsequent and contemporary institutional choices will pan out will be largely shaped by these relative organizational differences and the incentivized opportunities they foster.
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