A Jurisprudential And Economic Analysis

“Private Enforcement Of Public Norms: A Jurisprudential And Economic Analysis With A Criminal Law Perspective ”

This essay aims to deal with the broad question of whether public norms and values which are expressed by a state vide its criminal laws, in specific, and other incidental expressions of these values related to criminal law, for e.g. constitutional mandates, can be privately enforced or adjudicated upon. And whether such adjudication in itself leads to an erosion of these public norms. Incidental questions also include whether the ADR system can actually further the cause of enforcement of these norms.

The reasons why an ADR system or a Private Legal System (PLS) will come into existence are well documented and researched. The arguments range from economic and allocative efficiencies to reduction of time for disputing parties. This essay shall analyse such a legal system from both an economic viewpoint which shapes the growth of a private legal system and a jurisprudential viewpoint which undertakes expansion of public norms. The jurisprudential viewpoint is based upon arguments already forwarded by jurists on the privatisation of prisons and the effect of privatisation of core sovereign functions in criminal law. I believe there is a direct relation between the privatisation of adjudicatory functions and of enforcement mechanisms in a criminal justice system since both directly deal with the removal of constitutionally mandated rights of an individual and thus must follow certain public norms as well as jurisprudential principles of sovereignity.

The first part of this essay deals with the privatisation of public functions of a state. The question to be answered here is whether the privatisation of a core function of a state, such as enforcement of sentences, or the granting of a sentence leads to a violation of public values and norms.

The first argument relates to the questions of sovereignity and legitimacy of such an act. This problem has been succinctly raised by Dilulio when he states “The central moral issues surrounding private prison.., management have little to do with the profit motive of the privatizers and much to do with the propriety... of delegating the authority to administer criminal justice to non-public individuals and groups.” This absence of propriety is raised by Sharon Dolovich as well wherein the deep moral question of the propriety of the state devolving one of its most severe and intrusive manifestations of state power, comes into focus. The power of the state seeks to strip offenders of dignity and liberty, and consign them to severe regimentation to prisons. The granting of rights to individuals, lies squarely within the sovereign domain, and in most cases are constitutional mandates. Therefore by logical extension, the power to divest one of these rights should also lie with the state machinery alone and should not be left in the private domain. Dilulio offers a counterview by stating the final power to punish any individual based on any public value or policy, arises from the authority granted by the people to the state. Thus, there may be a transfer of this authority (especially in a democratic state) if the conditions and treatment are acceptable, the rewarding of the private individual should not at any point make a difference to this theory. I however believe that the reasoning forwarded by Dilulio is flawed. The power, authority and legitimacy of a state often arises from its power to grant sanctions and punish individuals which go against the values propounded by the state, which in this case as Dilulio avers is a state where assumption is that public policy and values arise from the people themselves. By allowing private individuals to perform a core state function there is a threat to state legitimacy and authority. Secondly according to the Hobbesian ideals of the Social Contract theory there is always a surrender of power by the subjects of a state to the state itself for ease of governance. If the state devolves a core state function of criminal justice and governance to certain private individuals there is a problem at two levels. Firstly, there is a breach of trust with respect to the citizens of the state, who have devolved their rights to a state, and yet the power to punish is now being exercised by a private institution to which they have not assented. Secondly, it gives the private institution powers of a core state functionary. This is problematic because of the argument forwarded next, which in essence contends that the nature of a judge adjudicating or a public prosecutor prosecuting in a court of law, embraces values and functions which cannot be understood or performed by the private functionary.

I take the help of two authors to put forth the point I have just mentioned. Joseph E. Kennedy explains the problematic existence of private funding of public prosecutions. Kennedy lays down certain interesting arguments for the functions of a public prosecutor beyond the mere realm of proceeding against an accused. He states that the prosecutors' duties extend to seeking out the truth and not merely convict the accused. This is the first casualty in any case where the prosecution is privately financed, because under the garb of “right of the victim” an institutional bias is created against the accused since the only motive the prosecution now has is to convict. Why is it that the government should be the agency to prosecute criminal cases in the first place? We have already discussed the nature of criminal justice as being a core state function. To place it in a more direct manner, the benefit from justice in a criminal matter extends beyond the victim to the larger society, since crime in itself is seen as an act which harms the fabric of the society. This leads us to the second function of the government prosecutors. They are mean to be “disinterested” when deciding which cases should be prosecuted. This is to ensure that they are impartial and give all victims and all cases an even hand under which they are measured. The allowing of private prosecution also results in an opportunity cost to the office of the public prosecutor. It demands more of the public prosecutors time, since there are financial contributors to the case who need to be pleased, thus making sure that other cases which have not been financed, suffer. Even though, one of the publicly funded cases may further the cause of society more, the institutional bias created in favour of a certain few cases on the basis of rich coffers of certain individuals is much greater. Some have also argued that the entry of private funding in prosecution results in more or better prosecutions. One must remember while referring to such an argument, that the case load on the justice system does not change by the entry of such money. The movement of cases remains the same, or may even slow down, since the case load may increase, due to the fact that certain cases which were considered to be non-prosecutable, have to be now prosecuted since they are backed by private funding. The entry of private funding changes the mix of cases prosecuted, not the efficiency of cases being prosecuted. There also exists the problem of differential access to justice in such cases, caused by the poor being unable to finance a case and thus being subject to the whims of the prosecutors office, as well as a lower grade of prosecution as compared to privately backed prosecutions wherein there are better expert witnesses etc... As a final note it may be concluded that allowing private prosecutions as a method of privatising a dispute goes against interests of both the state and the office of a prosecutor.

The above analysis dealt with the model of private prosecution, with a state appointed judge. In a case where the entire legal system itself is privatised i.e. from the prosecution (by the victim) to the adjudicator being appointed by the parties, there are further jurisprudential questions which pop up. Firstly, Dworkin has stated that judges have an institutional history which they follow and thus create new law. In a system of a PLS coming up, there can be no such institutional history or framework which binds the principles and the laws into a cohesive framework, since the adjudicator does not belong to any particular institution as such. Even if there is a particular institution which is earmarked for this purpose, the entire concept of privatisation of a sovereign function comes into being. The problems of privatisation of core sovereign functions have already been seen in numerous cases, where defence of a nation has been contracted out. The problems range from attribution of responsibility to prosecution in cases of violations of norms. A state can be held responsible by the people in case of miscarriage of justice. If a state devolves its responsibility upon a private player, the ability of the polity to find a remedy is severely restricted due to differing norms for private and public players. Unless there is a strong legal backing, which allows prosecution of private players violating norms, no Private Criminal Justice System can exist. If, however such prosecution is allowed, the adjudicator at no point of time can make an unbiased decision. The adjudicator shall bow to public pressure for two reasons. One, if the decision is not popular, the chances of their own prosecution are raised. Two, the more popular the decision, the more justice is seen to be done, the more cases/ business the adjudicator shall get. Unpopular decisions shall lead to a loss of revenue, giving incentive to a private adjudicator to digress from established norms to cater to public demand. These two problems do not exist in the traditional legal system, since judges are protected from prosecution on the basis of decisions that they make. This is possible since the judges are responsible to a greater institution of the judiciary in itself which is subject to the state machinery and the rigours of democracy and is thus responsible to the public at large. It is here that the arguments of the second author Owen M. Fiss become important. Fiss in his article elucidates upon the pitfalls of a legal system which is privatised. ADR which is sold as a perfect substitute for judgment trivialises the remedial role of lawsuits and privatises disputes at the cost of public justice., Fiss criticises ADR as highly individualistic and inadequate to public purposes since it is the courts role to affirm public values through adjudication and removal of the passive umpire judge from the resolution process reduces and eliminates the role of important public norms and individual rights in favour of purely private dispute resolution. The imbalance of power, absence of authoritative consent, lack of continuing judicial involvement, and resulting peace at the expense of justice are downfalls of the ADR process that Fiss thinks are addressed by the traditional court sytem.

Further arguing against ADR the concept of elimination of social function of lawsuits gathers importance because, while peace between the parties might be achieved, society is left without a remedy. Adjudication, he posits, positively exploits its very foundations—using public resources, public officials (chosen by the public), public power, and a public forum—to legitimize, expand, and reinforce core public values captured by the Constitution and democratically produced in statutes. Settlement, by removing disputes from public forums, deprived courts, as reactive institutions, of the chance to create justice, educate society, and fulfill the government's social duty. The very nature of ADR is to facilitate settlement rather than enforce legal norms, thus it becomes crystallised that the enforcement of public values cannot take place in such a case. The elimination of the publicity principle at the center of democratic political morality occurs by the mere publicising of the terms of the settlement without reinforcing public norms, or recognising underlying moral responsibility.

The third model regards plea bargaining. The problem with this method of alternate dispute resolution can be explained vide the construction of a simple game. Let the accused in question be named A, who may be sentenced to 7 years in prison if found guilty in the traditional court system.

In this game it is fairly clear that under all situations of plea bargaining the A will get 4 years in prison. His actual guilt as to the commission of the crime makes no difference. If A has actually committed the crime, he will choose in all situations to plea bargain and thus escape with a lighter punishment. This flies in the face of the principles of the criminal justice system since a guilty offender is not prosecuted to the full length of the law for reasons of mere efficiency. On a principled note it is quite abhorrent. If A has not committed the crime, even then he is incentivised to plea bargain. This may seem illogical, however, if one sees the cost of defence, time taken to resolve the case, stigma attached to the case, police harassment, etc... individuals from weaker sections of society may actually prefer incarceration for a short period, rather than regular harassment for long periods of time. This in turn is against the well settled principle of not incarcerating an innocent individual even though a hundred guilty may go free.

The next part of this essay shall briefly discuss how norms are essentially enforced by a PLS and how the formation of a PLS for an enforcement of a new norm occurs. The ideas in this part have been espoused by Amitai Aviram. He has given a logical scheme for the evolution of a Private Legal System, wherein a PLS is formed when there is a community where the PLS is able to enforce a low enforcement cost norm due to a bonding mechanism existing between the members. This bonding mechanism may differ from community to community but in our contextualised case depends on reputation bonding i.e. the reputation of the individual place set amongst the society is important and public values bonding i.e. the deviation from public values results in harm to the individual and the society and thus the individual may be socially ostracised/ removed from the PLS community due to errant behaviour (in criminal terms incarcerated). These are norms that members of the community (in this case the citizens of a country) adhere to without coercion. The next stage involves the expansion of norms which may be enforced by the PLS by taking away benefits that are conferred (such as freedom of individuals in this case) by the low enforcement cost norm, and thus coercing the community to follow those norms. Thus by increasing its influence, higher enforcement cost norms can be enforced by the PLS.

The most common PLS norms are social are religious norms which usually form the community backing of all public values and morals. However, this increasing expansion of norms and the creation of a PLS cannot be seen in the Criminal Justice System. Firstly, the exclusion which may be exercised by a PLS based on reputation bonds amongst a community has a decentralised system of exclusion. Such a system cannot effectively incarcerate deviant behaviour. Thus, they necessarily form a centralised institution which necessarily has the power to exclude such individuals, and can decide on whether a certain individual must be excluded or not. This institution has already been formed by virtue of social contract and the power has been vested in the state.

If however we discount the previous argument and state that a PLS may come into existence in the criminal context, the nature of norms enforceable by the PLS becomes important. A distinction may be drawn here between the Public and Private legal systems. A public legal system and the norms enforced by it are backed by the government's monopoly on violence. A PLS on the other hand must adhere to norms that the constituents believe gives them maximum utility to ensure its continued existence. Amitai Aviram calls this principle bias arbitrage, wherein a PLS will enforce norms which are perceived to be beneficial by the members rather than a system where actual long term benefits accrue to constituents. This is consonance with the argument placed before, that norms enforced by the arbitrator shall be the ones popular opinion favours. Thus, only norms which are reducing the perceived risks shall be enforced by a PLS, whereas at times to maximise social welfare it is in the interest of the community and the state to take a decision which although against the miscalculated large perception of the public, shall in the longer run maximise social welfare. The non-maximisation of social welfare goes against the basic tenet of enforcing any public norm. Public norm and value enforcement by definition should increase societal welfare. If that does not take place, there is a fundamental erosion of the values themselves.


It is clear from the above arguments that both on the basis of an economic review and a jurisprudential review of the Alternate Dispute Resolution Mechanisms in the domain of Public Norms, with a special emphasis on Criminal Law, I believe that there is not only an erosion of norms, but a complete destruction of certain immutable tenets of public policy which take place. There is a loss of constitutionally mandated norms firstly by a breach of the Social Contract theory and secondly by the legitimacy of an institution which does not perform the social function of a public body enforcing public norms (judges v. Arbitrators). Thus, the occurrence of such private adjudication, erodes the enforcement of public norms. Finally non-maximisation of social welfare in a private dispute system leads me to the conclusion that it is antithetical to a public norm, which must at all points of time maximise social welfare.


Amitai Aviram, Forces Shaping the Evolution of Private Legal Systems, available at http://papers.ssrn.com/pape.tar?abstract_id=1269469

John J. Dilulio, Jr., What's Wrong with Private Prisons, 92 PUB. INT. 66 (1988)

Joseph E. Kennedy, Private Financing Of Criminal Prosecutions And The Differing Protections Of Liberty And Equality In The Criminal Justice System, 24 HASTINGS CONST. L.Q. 665 (1997)

Laura A. Dickinson, Public Law Values in a Privatised World, available at http://ssrn.com/abstract=873086

Maggie T. Grace, Criminal Alternative Dispute Resolution: Restoring Justice, Respecting Responsibility, And Renewing Public Norms, 34 VT. L. REV. (forthcoming April 2010)

Owen M. Fiss, Against Settlement, 93 YALE L.J. 1073 (1984)

Sharon Dolovich, State Punishment and Private Prisons, 55 DUKE L.J. 439 (2005)