Academic journal article Texas Law Review

"Paying the Alligator": Precommitment in Law, Bioethics, and Constitutions

Academic journal article Texas Law Review

"Paying the Alligator": Precommitment in Law, Bioethics, and Constitutions

Article excerpt

People often try to control events in the future by choosing at Time 1 to reduce their options at Time 2. When Time 2 arrives they may regret their "precommitment" and wish that they were free to make a different choice. Sometimes other people have to decide whether to give priority to the Time 1 or to the Time 2 decision with no clear guidance for how to resolve that conflict.

The phenomenon of human beings "precommitting" themselves in order to control the future is a familiar one. Its locus classicus is the famous passage in The Odyssey in which Odysseus has himself lashed to the mast after stopping the crew's ears with wax so that he may hear the Sirens' song without being dashed on the rocks.2 Devices used to precommit in other settings include rewards, penalties, deleted options, and delay, with each use varying in its revocability at Time 2 and in its dependence on third party decisionmakers.

Contemporary interest in precommitment devices as a descriptive and analytic category arose in the 1970s and 1980s when Thomas Schelling and then Jon Elster took notice of them and the issues that they pose.3 Since then economists, political scientists, lawyers, psychologists, and bioethicists have become interested in precommitment behavior and have used the concept to describe the special set of problems that arise when attempting to constrain future action in personal, legal, political, and social life.4

The purpose of this Symposium is to deepen understanding of such behavior and to explore ways to resolve its dilemmas and paradoxes. This Introduction will describe different types of precommitments, discuss what is special about the term, and analyze the decisional dilemmas they pose. It then discusses their use in bioethics, in constitutions, and in law generally.

I. Types of Precommitment

The goal of constraining the future by present choices or precommitments covers a wide range of individual and group decisions. The term "precommitment" was originally understood to refer to a subset of future-directed constraints. In Jon Elster's terms, precommitments are strategies that people use "to protect themselves against passion, preference change, and . . . time-inconsistency. They do so by removing certain options from the feasible set, by making them more costly or available only with a delay, and by insulating themselves from knowledge about their existence."5

Time 1 commitments for Time 2 choices can take many forms and serve many purposes, both by individuals and by groups. Usually Time 1 actions alter the payoffs at Time 2 in such a way that acting contrary to one's precommitment is burdensome, if not impossible. Some precommitments act causally and preempt Time 2 alternatives by removing options at Time 2.6 In other cases, they are executory and require an additional choice by the maker or another person at Time 2 about whether or not to follow the Time 1 decision.

What is distinctive about precommitment behavior is the intention to limit future options in some way for a present or future payoff. Reason may be the spur at Time 1 to prevent passion (or interest or reason) from operating at Time 2. In other cases passion might produce Time 1 choices that seek to prevent reason or interest operating at Time 2. The motive could be self-paternalistic, as with Ulysses' self-binding contract, or more contemporaneously, as with a fictional mobster's recognition that he could not lend money to a friend because he could not "hurt him" if he were late in repaying.7

A precommitment might also arise because of hyperbolic discounting or other inconsistencies in valuing the stages of one's life, preferring satisfaction now rather than later. Faust hyperbolically overvalues the pleasures of this world, and assumes that the loss of salvation to which he precommits himself at Time 2 will be more tolerable than in fact it is.8 When the time comes to give the devil his due, Faust becomes a tragic figure who has given up salvation in order to gain knowledge and experience in the world. …

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