92 Pages Posted: 26 Mar 2003
Date Written: March 24, 2003
When and why do legal and other regulatory regimes aim sanctions at groups rather than individuals? This is a question that has been mostly left to moral philosophers, who discuss it in backward-looking terms of collective responsibility for wrongdoing. From this perspective, group punishment is conventionally viewed as a disreputable atavism of premodern, communalist cultures, destined to disappear from modern, liberal societies. Blood feud, frankpledge, and other such primitive uses of group punishment are as anachronistic as "punishing the innocent" is immoral.
Yet group punishment has hardly disappeared from modern societies. Legal systems routinely impose collective liability on shareholders for the torts and crimes of corporations, on co-conspirators for one another's criminal acts, and on polluters for the costs of cleaning up toxic waste. Governments inflict international sanctions on the populations of other states in response to the policies of their leaders and on innocent civilians in retaliation for acts of terrorism or resistance. Voters collectively sanction politicians by voting against political parties. Economic arrangements such as insurance, partnerships, and employee stock ownership plans focus economic rewards and punishments on groups instead of individuals. Parents sometimes punish all their children when one misbehaves, and communities tar entire families with reputational sanctions for the failings of individual members.
By shifting to a forward-looking, functional perspective, this Article attempts to make sense of these and other regimes of collective sanctions. Group members might be punished not because they are deemed collectively responsible for wrongdoing but simply because they are in an advantageous position to identify, monitor, and control responsible individuals - and can be motivated by the threat of sanctions to do so. On this understanding, collective sanctions can be conceived as a strategy of "delegated deterrence," inasmuch as responsibility for deterring individual wrongdoers is effectively delegated by an external sanctioner to a group that is well-situated to implement an efficient regulatory regimen. The Article develops a model of collective sanctions that combines this basic instrumental insight of delegated deterrence with economic and sociological theories of collective action and group organization. It then applies the model to a number of legal, economic, political, and social regimes of collective sanctions, ranging from group lending by microcredit banks in developing countries to the assimilation of minority groups in response to discrimination.
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