Institutional Change and the Burden of Proof

Not all institutions are created equal.

Lest I vault the cannon, let me pause here to share my take on what is frequently a poorly-defined or ambiguous term. When I invoke "institutions", I mean a collection of de facto practices that influence people's behavior in a particular setting. Institutions govern actions. They restrict the set of available strategies (for my game-theory-savvy readers). It can be handy to define a rift between de facto and de jure institutions, that is, institutions as she are practiced and institutions as she are written. I'm inclined to believe that to the extent that formal (de jure) institutions conflict with the informal (de facto) institutions, it is the actual practices that tend to dominate. The evidence I harbor for this is that any time a scandal erupts, it becomes evident that folks frequently flaunt the intentions (and often the language) of the explicit rule. Except in extremely rare cases, discretion orders behavior. I can agree that this assertion is a bit of a cop-out in the sense that obedience to a rule is an exercise in discretion, but this reinforces my claim that ink on paper is less binding than the shared principles dwelling in the house of the mind.

So with that in mind, consider my claim from last week about the burden of proof. While I agree with Chris Coyne that the burden of proof ought (note the normative claim here) to be on those who would engage the use of coercion, what happens when an institution is fully capitalized? That is to say, what is the appropriate calculus of coercion when you've got the weight of centuries behind a practice?

I ask because of yesterday's post on polygamy. The plebeian arguments forwarded in the same sex marriage debates strike my ear as not so much principled as emotional, rooted in worldviews that have set up shop, hung a shingle, and are doing merry business inside folks' shared headspace. In the tongue of economists, these ideas and institutions have become capitalized, history and rationality be damned. It seems to me that this is generally true no matter what flag (most) folks rally round.

This is interesting though. I think there's a lot of merit to assume anarchy for the purposes of pure policy analysis, but I'd have to freely admit that this is a radical minority position. The tenor of debates on big policy issues like the definition of marriage or access to medical care or the economic development of poor sovereignties relies starts from the status quo and proceeds from there.

The EE project attempts to reconcile the moral intuitions of diverse thinkers. Part of the success of the project depends on default analytical assumptions too. Flag-bearers for or against various interventions might want to be prepared to discuss their positions using the language of the other side. When it comes to legally sanctioned plural marriage, I think my comments yesterday would have been better bolstered by a recognition that marriage occupies a large role in many other institutions. Giving short analytical shrift to these is a glaring omission.

Similarly, I think it's a bit of an analytical error to make the reverse assumption, that once a law is passed, it is dyed into the wool of society. I'd like to see more legislative review of old statutes.

But you know, hope in one hand...

Edit: here's a video of the event. My question is about 1 hr 23 min in.