On Collective Punishment-BECKER

Collective punishments are part of "negative" incentives that are used to reduce crime, military aggression, and other injurious acts. There is often a strong case for such collective punishment to deter harmful acts. Punishing the individuals or groups who commit these acts through police, armed forces, and the judiciary is the first line of defense against such socially harmful behavior. Sometimes, in addition, "positive" incentives are used to encourage the help of private enforcers. This is accomplished by offering payments to whistleblowers who report white collar crime, to spies who give information on the military intentions of potential enemies, and to individuals who provide information on wanted criminals or unsolved crimes. In his discussion in favor of collective punishment, Posner uses the example of employers who may be held liable for injuries due to acts by their employees while performing their duties. Employer punishment is often appropriate for the reasons Posner gives. A less good example frequently discussed is the owners of bars who are penalized for automobile accidents or other injuries caused by persons who became drunk at their bars. Similarly, some states hold the hosts of parties partly responsible for any automobile accidents or other injuries caused by guests who had too much to drink at their parties. I believe that collective responsibility in these drunk-driving examples and in many other situations is inappropriate because those being punished have little ability to deter the injurious behavior that is being discouraged. Can party hosts be expected to keep track of how much each of their guests has drunk, especially at large cocktail parties? That seems to me to an unwise use of negative incentives unless the goal is to discourage cocktail parties themselves. Otherwise, it is best to only punish the individuals who get drunk at parties and afterwards injure others. They are the ones who can best keep track of how much they drink. It is easier for managers of bars than party hosts to keep track of the number of drinks ordered by different patrons. However, punishments to bar owners after serving more than say 4 drinks to patrons who later commit acts that injure others would give heavy drinkers an incentive to bar hop, and have their quota of 4 drinks at each of several bars. That might cut down the amount of heavy drinking since bar hoping is more costly than drinking at a single bar, but it also punishes heavy drinkers who take care not to drive afterwards or engage in different actions that cause injury to others. It surely would not make much sense to collectively punish the set of bars where patrons accumulate their excessive amount of drinking. So my conclusion is that in this case too the preferable policy is to only punish intoxicated persons who cause injuries to others, and not attempt collective punishment of bar owners. To take a different example, parents should often be held responsible for harms to others caused by their younger children. Parents can discourage crimes and other anti-social acts of these children by the upbringing they provide, and also by the punishments they administer to children who engage in such acts. Since after a certain age, perhaps sixteen or eighteen, parents have much less control over children, parental responsibility for children's acts should diminish, and children's responsibility should increase as the children age. At one time, children were responsible after the death of parents for any debts their parents left. Children were also punished for other anti-social behavior of their parents. This type of collective punishment has been eliminated by developed nations, presumably because children do not have the power typically to deter their parents from contracting debts or committing crimes. The only justification for such collective punishment of children in these cases would be that parents care about the children, and that caring parents would be less likely to enter into debts they cannot pay, or engage in anti-social acts, if children were held responsible for parental behavior. But such collective punishment to children would have little effect on selfish parents, and it would increase the suffering of their children who already are harmed by having selfish parents. To take a different political example than the Lebanese one that Posner uses, should the German people have been held collectively responsible for the atrocities committed by Hitler and other Nazis? It was inevitable that many German people suffered from World War II, although bombing of Dresden and some other cities by the Allies was probably unnecessary. Collective punishment of leading Nazis was appropriate, as was the requirement that Germany pay reparations for property taken, for some of the damages caused by German occupations of various countries, and for the murder of millions of Jews, Poles, Russians, and other groups. However, it would be more far-fetched to hold the German people responsible for the election of Hitler since he took steps to prevent the German people from voting him out of office. Moreover, people who voted for Hitler in the first place could not have easily anticipated the full dimensions of the horrors he would inflict on the world.

Comments

[Lawrence Indyk, University of Kansas School of Law]

Collective punishment policies can be appropriate, but they can also be counterproductive and undermine the very objectives the policies seek to accomplish. This is especially true if liability is shifted away from guilty parties, merely to pass through businesses and onto the innocent and responsible customers who will bear the burden in the form of higher prices.

In the case of a bar owner, experience with people drinking, combined with ordinary prudence to cut a problem customer off, may reduce drunk driving, but few would conclude that this kind of reasonable care will significantly alter the risk that an inebriated patron will go out and cause an accident given the prevalence of drunk driving in America, and the fact that even small amounts of alcohol can contribute to accidents.

Holding bar owners partially accountable for the criminal acts of some customers in anything but the most reckless circumstances practically becomes a form of strict liability. The burden will be similar for all bars with similar practices, so there will be no competitive incentives to do anything other that follow the statutes and pass any additional burden on to exactly the customers who are already acting responsibly.

So, if drunk drivers still drive and are held less liable than before, bars still serve them drinks with no incentive for a change in behavior, and responsible customers pay higher prices for harm they do not cause, then the policy of collective punishment becomes a total failure in this case.

In the case of modern counter-terrorism conflicts, it is an open question whether the tactics employed in the attempts to defeat extremist militants can create sufficient suffering and aggravation in the civilian population that new terrorist recruiting undermines the strategic objective of long-term peace.

Nevertheless, terrorism may be like crime in that without significant cultural change the best that can be hoped for is a constant struggle against a "manageable" (and if we're smart, minimal) level of violence. Mowing a lawn fertilizes the soil and encourages new grass to grow faster, but you have no choice but to mow it if you want it to stay short.

[Aaron D. Michelson]

Several years ago I visited Dresden. While there I was told that on the night of the British raid the Nazis were preparing to send a trainload of Jews to their probable deaths. Because of the raid they were unable to do so and the people survived. I now find it much harder to fault the raid as "collective punishment."

[Arun Khanna]

Re: It is easier for managers of bars than party hosts to keep track of the number of drinks ordered by different patrons. However, punishments to bar owners after serving more than say 4 drinks to patrons who later commit acts that injure others would give heavy drinkers an incentive to bar hop, and have their quota of 4 drinks at each of several bars. That might cut down the amount of heavy drinking since bar hoping is more costly than drinking at a single bar, but it also punishes heavy drinkers who take care not to drive afterwards or engage in different actions that cause injury to others.

This is a good example which explains why bars in college towns are typically clustered to reduce the disutility of college students stepping out into the cold night.

On a different note, Germans living near concentration camps during Nazi era do have collective responsibility.

[Jake]

Prof. Becker notes that "people who voted for Hitler in the first place could not have easily anticipated the full dimensions of the horrors he would inflict on the world."

But the German people, having been fooled once by Hitler upon electing him, need not so easily acquiesced in the aftermath.

The modern parallel is the rather effortless acquiescence by many to the bestial assaults upon Israeli civilians over decades. By comparison, the current Israeli campaign against Hezbollah in Lebanon is quite measured.

[Josiane Liane]

One different but equally illuminating WWII example is the reprisal war fought against the Nazis in the former Yugoslavia. From memory, the intendants established a policy of killing 100 civilians indiscriminately for every German death, or 50 for every German injury. Instead of deterring the partisans, it spurred them on in the hopes of involving crowds in their movement. In other words, the economics of collective punishment became the motive for the crime.

For that reason the efficiency equation changes when the moral authority of the one levying the punishment is in question (if not necessarily at risk). What sets it off kilter is the fact that the obliqueness of collective punishment by its nature melodramatizes the injustice already alleged. In particular when the criminals are viewed as heroes in the first place.

That can be seen in the Middle East now, where Hezbollah has provoked Israel into its own reprisals. The Times ran an article pointing out that many Lebanese Christians have blamed Hezbollah and have even participated in Israeli retaliation. But on the other hand Hezbollah has calculated that it itself is in part expendable, hurting the analysis's assumption of rationality (a fickle word). It has not licensed Israel to enravel its main audience, which includes the population in Iraq and future Arab generations who are invincible because unborn. One illustration of this is the fact that Hezbollah's current crimes (less to take sides than to use the language of the analysis) stem from collective punishments exacted by Israel in 1982.

[Dude]

The majority of those in south Lebanon support Hezbollah. Terrorists need the support of the local population to function. Therefore, the civilians should be held responsible for Hezbollah. Will bombing civilians turn them against Hezbollah? Probably not. But at least Israel will destroy their weapons cache and bases.

[James]

Dresden also has to be seen in context. Those who ordered the raid had sat through the blitz on London, when the Nazis tried to destroy all trace of Britain's greatest city (they did the same to Coventry and other smaller cities as well). The war had been extraordinarily destructive on Britain. Those who ordered the raid on Dresden were interested in finishing the German threat once and for all. There was certainly an element of revenge involved, and the idea that it would "teach the Germans a lesson" never to go to war again. On a more practical level, the raid was designed to create chaos in Germany, thereby absorbing German resources and attempting to hinder German communications by create thousands of refugees. In the context of all the horrors of WWII, Dreden ranks quite low down the list.

It is very easy, sitting in air conditioned offices in safe cities sixty years hence, to patronise Dowding and others responsible for the raid. But we did not live through their times, so we should hesitate to conclude that their actions were unwise. They would point to the fact that Germany has indeed learned its lesson and been a loyal ally since. I have blogged about the wisdom, or lack thereof, about judging the past before: http://cricketandcivilisation.blogspot.com/2006_06_01_cricketandcivilisation_archive.html

[A. Zarkov]

The Allies not only collectively punished the Germans of the Third Reich, they published people ethnically German all over Europe. More than 16 million Germans were expelled from their homelands and their property confiscated. For example all Sudeten Germans were expelled with the exception of those who could prove they were part of an active resistance against Germany—almost 3 million expelled. Over 7 million Germans were expelled from East Prussia. These mass deportations were authorized by the Potsdam Agreement, which states in pertinent part:

"The Three Governments, having considered the question in all its aspects, recognize that the transfer to Germany of German populations, or elements thereof, remaining in Poland, Czechoslovakia and Hungary, will have to be undertaken. They agree that any transfers that take place should be effected in an orderly and humane manner. "

The transfers were anything but orderly and humane as 1-2 million died—a second holocaust. The confiscation of all the property of the Sudeten Germans was authorized by the post war Czech Government through the Benes Decrees. So yes the Allies engaged in the ethnic cleansing on a gigantic scale. How come you don’t teach this, professors? I would guess that less than 1% of American students know anything about the forced mass migrations after WWII. Yet we constantly hear accusations that Israel expelled 600,000 Arabs in 1948-1949 and they should have a “right of return.” Why don’t the expelled Europeans also have a “right of return?”

[Andrew Berman]

There's a hidden assumption in both Posner and Becker's discussion of collective punishment-- the notion of the individual vs. the family or group unit.

In many other societies, the family or group is far more important than the individual. Yes, I know that you can frame it in individual terms-- "by helping my family, I help myself"-- but it's a poor framing. Why? Because it leads people to think that they can disincentivize the individual by appealing to other 'individual' interests.

For example, I believe that by stealing $10,000 I can purchase some nice things for my family. However, I must weigh that against going to jail. I balance my individual punishment vs. my satisfaction about benefiting my family and I decide that I'd be unhappy with the deal, so I don't steal the money.

But someone who is willing to die for their family or group simply does not have a balance sheet that you can affect that way. If family and clan considerations outweigh all individual considerations, then no individual consideration can be a deterrent.

[richard]

No one has mentioned yet the dropping of the A bombs in Japan which ended WW2. Also, I think the situation here is more like the terrorists have kidnapped Lebanon more than a collective punishment situation. Why not hold them responsible for the situation? You hold the kidnapper responsible for the victim's murder or fate not law enforcement. If the terrorists wanted to end the situation all they have to do is return the soldiers and stop the rockets. Israel would have to stop then. They don't do this because they want war.

[howard]

The German people WERE held liable for Hitler's actions. Their cities were bombed and their country was occupied. And we regard this as a Good Thing. It allowed the Allies to get rid of the Nazi regime that had been rampaging through Europe, and ending its record of attrocities.

This is a perfectly good analogy. Like the Nazis in Germany, Hizballah is a movement, a political party and a war machine. Its major purposes are to dominate Lebanon through force and to attack Israel. The only way to end the threat posed to EVERYONE in the region by Hizballah is to fight it. And because Hizballah DELIBERATELY "hides behind women and children" (according to UN envoy Egland) in order to create civilian casualties, HIZBALLAH is the one responsible for their deaths and for the harm caused to Hizballah civilians by the war.

If you don't want to take sides, don't start by assuming that Israel is guilty. Wait until you know WHY a given bomb was dropped before declaring that Israel was trying to punish civilians.

[Francisco]

Dear Becker-Posner interesting blog,

I much more agree with Professor Becker’s analysis.

General comment to both: I do not agree entirely using the example of the employer (and the parents) as collective punishment. Punishing the employer (or the parent) is not the same as punishing the collective. You may argue that at the end the employees suffer the punishment indirectly, but I would say “maybe not” since they can change to another job (generally speaking). But the Lebanese can not change its country so easily. The analogy to the employer example would have been –indeed- killing the president of Lebanon and his ministers, for example. Other examples used are closer to what I understand as collective punishment.

In my opinion Professor’s Postner analysis has –from an analytical point of view- an important pitfall: It does not take into account the other side’s reaction, I miss the strategic component in his analysis. One may argue that punishing the collective can provoke less harm than the benefit obtained by that action. This might work in the short-term, however in the longer-term the hate caused by the injustice (the punishment over the innocent part of the collective) lead to more violence, and more punishment… and we keep turning the violence wheel time after time. From a “mathematical point of view” we should understand if the series converges into a value or –conversely- grows indefinitely. I would bet most of the time it grows indefinitely, and the Israeli-Palestinian-Lebanese conflict proves it. (Note: and in the case the series converge into a single value, that value would probably be much higher that any single component of the series, which is what Postner probably would take as measurement in his analysis)

Getting out of the analytical point of view, there is another comment I would like to make: the “punishment-final balance” argumentation is exactly the same that most terrorists use. When a terrorist justify his or her actions, they usually say that the harm of innocent people caused by the terrorist attack is nothing compared to the benefit of solving the situation that justify its terrorist war, therefore it is worthwhile and one should keep going that way. Getting independence over Northern Ireland is probably worth more than few thousand lives, or not? Solving starvation in poor countries is probably worth more that thousands of lives in NYC, London or Madrid, isn’t it?

I rather believe in positive actions. That´s why most conflicts are solved.

"An eye for an eye, and soon the whole world is blind." Mahatma Gandhi

"War is only a cowardly escape from the problems of peace." - Thomas Mann

[Litfaßsäule]

great site with good look and information...i like it

[N.E.Hatfield]

Point of fact, over a million German P.O.W.'s disappeared into Russia after Stalingrad. As of today less than a thousand have returned. Collective punishment? War is hell and cannot be civilized. Perhaps it's best that way, otherwise we might grow too fond of it.

[Mark]

Do Mr. Becker and Mr. Posner agree that if someone could save 100 lives by murdering them, they should go ahead and do it?

[视频会议]

What was Tony Blair thinking as he listened to Greorge Bush at their joint press conference? Imagination fails me, utterly.

[Lars]

Dear Prof. Posner and other readers/bloggers here at this interesting site.

I would like to recommend you to re-read the excellent portions of the book by Axelrod "The evolution of cooperation" on how spontaneous cooperation emerged on some sections of the trenches in the first world war. That is, cooperation between the German and British troops who were supposed to fight each other. Acting in accordance with their enlightened self-interest they found ways to reduce casualties on both sides. E.g. only shooting on a certain time everyday, and always hitting the same "targets". To not shoot without prior warning, and of course the well known common German-British celebration of christmas and new year.

I think it is very easy to observe that most "large" conflicts have their origin in bureaucracy, whether state- og non-state. And that most civillians only start 'wars' over things that directly affect them.

This of course is hardly a solution to the immediate crisis you are discussing. Unfortunately the Middle East has been working on a diet collective punishment for a long time, and it has served to align the interests of the rational citizens on all sides with the most warlike elements in their governments. Ask any Palestinian or Israeli to tell about their personal experiences of the war, their family losses, etc, and I am confident this hypothesis would be confirmed. So I agree completely with those here who have emphasized the possible adverse consequences of collective punishment.

At this point in history there is less truth to the idea that states (and state-like organizations) bring peace and order than ever. We should work hard to re-organize them on more rational lines. I realize this probably sounds like hippie nonsense. But having listened to people arguing the past month now about who is more or less justified in inflicting collective punishment, I conclude that there certainly exists worse nonsense.

Best wishes,
Lars/Denmark

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