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The Virtues of Uncertainty in Law: An Experimental Approach

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  • Tom Baker
  • Alon Harel
  • Tamar Kugler

Abstract

Predictability in civil and criminal sanctions is generally understood as desirable. Conversely, unpredictability is condemned as a violation of the rule of law. This paper explores predictability in sanctioning from the point of view of efficiency. It is argued that, given a constant expected sanction, deterrence is increased when either the size of the sanction or the probability that it will be imposed is uncertain. This conclusion follows from earlier findings in behavioral decision research and the results of an experiment conducted specifically to examine this hypothesis. The findings suggest that, within an efficiency framework, there are virtues to uncertainty that may cast doubt on the premise that law should always strive to be as predictable as possible.

Suggested Citation

  • Tom Baker & Alon Harel & Tamar Kugler, 2003. "The Virtues of Uncertainty in Law: An Experimental Approach," Discussion Paper Series dp310, The Federmann Center for the Study of Rationality, the Hebrew University, Jerusalem.
    • Handle: RePEc:huj:dispap:dp310
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    Cited by:

    1. Gregory DeAngelo & Gary Charness, 2012. "Deterrence, expected cost, uncertainty and voting: Experimental evidence," Journal of Risk and Uncertainty, Springer, vol. 44(1), pages 73-100, February.
    2. Germani, Anna Rita & Morone, Andrea & Morone, Piergiuseppe & Scaramozzino, Pasquale, 2013. "Discretionary enforcement and strategic interactions between firms, regulatory agency and justice department: a theoretical and empirical investigation," MPRA Paper 51369, University Library of Munich, Germany.
    3. Johannes Buckenmaier & Eugen Dimant & Ann-Christin Posten & Ulrich Schmidt, 2021. "Efficient Institutions and Effective Deterrence: On Timing and Uncertainty of Formal Sanctions," Journal of Risk and Uncertainty, Springer, vol. 62(2), pages 177-201, April.
    4. Maennig, Wolfgang & Wilhelm, Stefan, 2023. "News and noise in crime politics: The role of announcements and risk attitudes," Economic Modelling, Elsevier, vol. 129(C).
    5. Carol Luengo & Marcelo Caffera & Carlos Chávez, 2020. "Uncertain penalties and compliance: experimental evidence," Environmental Economics and Policy Studies, Springer;Society for Environmental Economics and Policy Studies - SEEPS, vol. 22(2), pages 197-216, April.
    6. Jana Zausinová & Martin Zoričak & Marcel Vološin & Vladimír Gazda, 2020. "Aspects of complexity in citizen–bureaucrat corruption: an agent-based simulation model," Journal of Economic Interaction and Coordination, Springer;Society for Economic Science with Heterogeneous Interacting Agents, vol. 15(2), pages 527-552, April.
    7. Alexander V. Demin, 2020. "Certainty and Uncertainty in Tax Law: Do Opposites Attract?," Laws, MDPI, vol. 9(4), pages 1-30, December.
    8. Carol Luengo & Marcelo Caffera & Carlos Chávez, 2014. "Uncertain Penalties and Compliance," Documentos de Trabajo/Working Papers 1407, Facultad de Ciencias Empresariales y Economia. Universidad de Montevideo..
    9. Boom Christopher D., 2015. "The Importance of the Thin Conception of the Rule of Law for International Development: A Decision-Theoretic Account," The Law and Development Review, De Gruyter, vol. 8(2), pages 293-331, December.
    10. Subhasish M. Chowdhury & Frederick Wandschneider, 2013. "Anti-trust and the ‘Beckerian Proposition’: the Effects of Investigation and Fines on Cartels," Working Paper series, University of East Anglia, Centre for Competition Policy (CCP) 2013-09, Centre for Competition Policy, University of East Anglia, Norwich, UK..
    11. Dai, Zhixin & Hogarth, Robin M. & Villeval, Marie Claire, 2015. "Ambiguity on audits and cooperation in a public goods game," European Economic Review, Elsevier, vol. 74(C), pages 146-162.
    12. Anna Rita Germani & Pasquale Scaramozzino & Andrea Morone & Piergiuseppe Morone, 2017. "Discretionary enforcement and strategic interactions between enforcement agencies and firms: a theoretical and laboratory investigation," Journal of Regulatory Economics, Springer, vol. 52(3), pages 255-284, December.
    13. Christoph Engel, 2010. "Turning the Lab into Jeremy Bentham’s Panopticon. A Lab Experiment on the Transparency of Punishment," Discussion Paper Series of the Max Planck Institute for Research on Collective Goods 2010_06, Max Planck Institute for Research on Collective Goods, revised Jun 2018.

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