Thomas J. Miceli

How does a society resolve legal disputes lacking evidence? Although such cases would typically be dismissed by modern courts, an interesting but little-known alternative element observed in some legal systems is the option to request a decisive oath in a lawsuit. Distinct from ordinary (testimonial) oaths that are routinely administered to witnesses at trial with the aim of eliciting only truthful testimony, a decisive oath can end a lawsuit in cases where the plaintiff has no evidence. We argue that the oath option may improve on burden-of-proof rules because standard theory overlooks the possibility that some defendants will truthfully admit their guilt after having professed an oath to be truthful. The reason is that people with strong religious or moral beliefs have internalised an ethic of honesty that overrides material consequences. We show that when the fraction of such people is large enough, the oath option achieves a more accurate resolution of disputes than burden-of-proof rules. Evidence from the Ottoman courts in Istanbul during the 16th and 17th centuries supports the argument regarding the positive relationship between religiosity and the use of the decisive oath for dispute resolution. The viability of the decisive oath declined in recent centuries, despite remaining ‘on the books’ in some countries. We suggest that its global demise can be attributed to rising intellectual opposition, increasing complexity of laws and/or legal disputes, falling cost of gathering evidence, and a general trend toward the separation of religion and state.

“[I]t is better that ten guilty persons escape than that one innocent suffer.” 4 WILLIAM BLACKSTONE, COMMENTARIES *358.“[I]t is better that ten innocent men suffer than that one guilty man escape.” Otto von Bismarck, Germany’s first chancellor, quoted in John W. Wade, Uniform Comparative Fault Act, 14 FORUM 379, 385 (1979).Punishing the innocent is considered an “error” that the legal system must minimize. In reality, it is a choice. When evidence points to one of a few suspects as the victim’s assailant, society must decide whether to punish all, some, or none. Despite the stated distaste, in many cases lawmakers, regulators, and enforcers elect to sanction a large group of innocent actors. Mass arrests, sobriety checkpoints, profiling, even increasing the number of searches and seizures, and using excessive police force—are all forms of collective punishments. They allow the targeting and sanctioning of an entire population in the name of finding the culprit. The decision is often masked by confusing terms but its effect is the same. The freedoms of many are sacrificed to punish the one. These methods have been widely criticized, but what can economics say on the subject? Are these methods even effective? Under what conditions?The standard economic model of crime has not offered a clear answer to these questions because it typically focuses on the apprehension and punishment of a single actor—the offender. It therefore does not consider the possibility of punishing a group of innocent actors as a policy tool.This Article seeks to fill this gap. First, in deviation from previous models, it develops a realistic framework in which the enforcer can choose not only the probability of detection and the nature and severity of the punishment but also the size of the “punishment group.” Our model then analyzes the welfare implications of collective punishment and the menu of choices available to enforcers and regulators. To be clear, our intention is not to argue for group punishment as an enforcement strategy. Rather, our goal is to explain the logic of collective liability regimes and unravel the way detection of offenders is currently carried out. Our analysis also shows that in many cases enforcers applying collective sanctions are motivated by self-interest and bigotry. Concerningly, even when the enforcer’s goal is to enhance deterrence, the cost on members of the punishment group is discounted or ignored, resulting in a substantial loss of freedoms and welfare. The silver lining is that many of these concerns can be addressed by appropriate reforms.