Game Theory and the Law: The 'Legal-Rules-Acceptability Theorem' {A Rational for Non-Compliance with Legal Rules)
| Autor | Guillermo Flores Borda |
| Cargo | Abogado por la Pontificia Universidad Católica del Perú |
| Páginas | 301-314 |
Game
Theory
and
the
Law:
The
"Legai-Rules-Acceptability
Theorem"
{A
Rational
for
Non-Compliance
with
Legal
Rules)
Guillermo Flores Borda'
"Until
now,
legal
science
has
lacked o fa formal explanation forthe biggestand mostobvious legal problem: "non-compliance
with legal
rules':
This
papel
defies
the common
sense
idea
that non-compliance with legal
rules
is
a psychological
issue
by
providing
the
first formal game-theoretic explanation regarding how people
decide
wthether
to
comply with a
specific
legal
rule,
and provides a solution that any policymaker
can
apply
in
arder to
reduce
legal non-compliance
rates."
Abstract
Since
its creation, legal science
has
lacked
of
a formal and
rational explanation for the non-compliance with legal
rules carried out by citizens, and only intuitive explanations
exist arguing that it would
be
a psychological
issue
or
that it derives from
an
uncontrollable desire
of
citizens
to
maximize their individual utility functions.
Under the "Legai-Rules-Acceptability Theorem'; which
assumes
bounded rationality
of
both citizens and
policymaker
players,
a legal rule
is
deemed
to
be:
(i)
"reasonable';
if
the subset
of
permitted strategies under
such
legal rule enacted by policymaker players contains
only and
all
strategies by means
of
which both the
maximization
ofthe
individual utility function
ofthe
citizen
and the maximization
of
the
social
utility function (to some
extent)
are
possible, and
(ii)
"theoretically stable';
if
the
equilibrium point representing a situation of"generalized
compliance"with
such
legal rule
is
a
Nash
Equilibrium.
However, we note that policymaker players cannot
guarantee the "generalized compliance" with a legal
rule even when they
are
sure
that it
is
"reasonable" and
"theoretically stable';
since
citizens cannot perceive the
lasting non-immediate harm from their non-compliance
but only the momentary immediate benefit from it, due
to their bounded rationality and limited computation
capacity. Therefore, legal
rules
are
only deemed
to
be
"stable"
if
citizens beco me able
to
perceive what we
call
a
"recognizable harm" derived from the "generalized non-
compliance"with the legal
rule.
Therefore, by means
of
the "Legai-Rules-Acceptability
Theorem'; we propase:
(i)
a game-theoretic description
of
how citizens take the decision
to
comply or not with a
specific legal
rule,
which
is
related
to
the perception they
have
regarding the "reasonability" and "stability"
of
such
rule,
(ii)
a bounded rationality answer to the question
of
why citizens
do
not comply with a specific legal rule
even
if
its "generalized compliance"
is
useful and
its
"generalized
non-compliance"
is
harmful for every
one,
and
(iii)
a game-
theoretical mechanism by means
of
which policymakers
can
reduce the non-compliance levels
of
legal
rules
to
their
lowest
levels.
l.
lntroduction
According
to
John
C.
Harsanyi1, every player decides
whether
to
use one strategy or another according
to
the preferences
that
compase its individual
utility
function, which may be:
(i)
personal preferences, or (ii)
moral preferences.
Personal
preferences
are
not fully selfish, but they
are
"particularistic"
in
the
sen
se
that they give a more relative
weight
to
your interests and those
of
individuals related
to
you than
to
the interests
of
other individuals not related
to
you.
These
personal preferences will guide the way you
decide
in
situations that do not require you
to
make moral
val
u e judgments,
sin
ce
such
decisions
can
be
made taking
only personal and partial considerations into account.
Moral preferences
are
not selfish at
all,
since
they
are
"universalistic"
in
the
sen
se
that they give the
same
relative
weight
to
the interests
of
all
individuals
in
society, either
related or non-related
to
yo
u.
These
moral preferences will
guide the way yo u decide
in
situations that require
yo
u
to
make moral value judgments,
sin
ce
such
decisions cannot
be made taking only personal and partial considerations
into account, but need you to take the interests
of
the
society into account by definition.
Abogado
por
la
Pontificia Universidad Católica del Perú.
Director
del Center and Game
Theory
in Law.
Abogado
del Estudio Muñiz, Ramírez, Pérez-Taiman & O laya Abogados,
donde
se desempeña en
el
área
de
Banca, Mercado
de
Capitales y Financiamiento
de
Proyectos.
Winner
of
the
Nobel Prize in Economics in 1994,
together
with
John Forbes Nash
and
Reinhard Selten.
301
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