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Article

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“Signaling, Legitimacy, and Compliance: A Comment on Posner’s Law and Social Norms and Criminal Law Policy” 36 University of Richmond Law Review 407 (2002)

Abstract

Although criminal law can be justified with respect to nonutilitarian goals such as retribution, no one can deny that one way to justify criminal law is with respect to the instrumental ends of deterrence. So, one question of interest to scholars in the field has been how to think about the kinds of criminal law policy that encourage compliance. My own work has focused on this important question. Specifically, I have been concerned with the ways in which different kinds of criminal proscriptions, along with certain methods of law enforcement, could affect crime rates in disadvantaged, urban neighborhoods. In undertaking such analyses, I have emphasized classical sociological theory and social psychology, often for the purpose of criticizing economic approaches to crime control, which have been interpreted to emphasize higher levels of severe punishments for conduct such as drug offenses.

Thus, as a student of criminology and psychology, and a sometime critic of economic approaches to criminal law policy, I initially imagined that this commentary would be a sharp critique of Eric Posner's Law and Social Norms as it applies to topics I have mined in past work. In his book, Posner attempts to boil down a wide variety of human actions to their bare essentials. The engine of the book is a general model of nonlegal cooperation, which Posner describes as a signaling game. Because people desire to cooperate with one another, they engage in regular but costly sorts of behaviors in order to communicate to each other that they are good partners for cooperation. Posner calls these behavioral regularities "norms," and he uses this general model to comment on everything from family law to voting to criminal law. Thus, Posner explains that observance of criminal law—which could be costly to compliant individuals—is a function of the fact that people "are likely to obtain future returns when others see them obeying a legitimate law."

Date of Authorship for this Version

2002

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