Aditi Bagchi (Fordham University School of Law) has posted Law and the Moral Dynamics of Collective Action (Seton Hall Law Review, Forthcoming) on SSRN. Here is the abstract:
Many moral demands on social groups cannot be met without cooperation among group members. In some cases, individual action does not advance the collective moral interest at all without some threshold level of cooperation by other group members. Is an individual required to act as if others will cooperate even if she knows that they will not? This Article argues that individuals may take into account the reality of pervasive noncooperation and decline to attempt cooperation. Only ex ante mandatory rules can solve moral collective action problems. In a political community, those rules are public law.
The most compelling argument in favor of recognizing individual duties to attempt cooperation is that we may not predict that other people will fail to comply with their moral duties. A variety of legal rules reveal discomfort with such “agent predictions” in the context of criminal law, tort law and First Amendment law. However, the Article will show that legal shifts in several doctrinal areas, especially tort law, not only reflect increased tolerance of but, in some cases, appear to require that individuals make agent predictions. This trend is consistent with contemporary thinking about how people relate to contingent features of our environment. The Article will parse out permissible and impermissible agent predictions.
The agent predictions at issue in moral collective action problems are usually permissible. The Article articulates and defends a “no martyr principle” that denies a duty to (attempt to) contribute to collective endeavors that are futile in the light of sound agent predictions. While such conduct is virtuous, it is not compulsory. Private law rules (in tort and contract law) largely respect the no-martyr principle. The Article shows how public law gets around it, and why we should use mandatory rules issued by the state rather than moral exhortation of individuals to solve moral collective action problems.
And a short sample from the paper:
Moral collective action problems, like all collective action problems, are driven by uncertainty about the future. We do not know what other people will do and so we make predictions based on what we do know. Even if we are confident that moral demands on the group can be met only if we each conform to some rule of conduct, we may doubt that others will rise up to its demands. The most significant thing about a mandatory rule issued by the state is that it gives us just the information we need when we need it. Once subject to a rule to which others are similarly subject, we can know that others will participate in the cooperative scheme put in place by the state. We do not have to worry about free-riding or futility. This works because the public law rule is set out in advance of individual conduct to which it applies.
Very interesting. Highly recommended. Download it while it's hot!