Years ago, when I was in Marine Corps boot camp, one of the main focuses of education was learning about the Uniform Code of Military Justice, or UCMJ. The UCMJ forms the basis of military law. Violations of the UCMJ can be raised in a military process known as a court-martial. But there was a lesser, more watered-down version of a court-martial that we were also told about: non-judicial punishment, or a NJP.
Being subject to the NJP involves certain considerations. On the one hand, the NJPs were more limited in the amount of punishment they could mete out. For the same offense, a court-martial can impose a much higher penalty than an NJP. On the other hand, the commanding officer in an NJP was judge and jury, and was not limited by the same kinds of procedures that might be necessary for a court-martial trial.
For example, if the CO were to conduct a NJP, he might decide to accept hearsay as evidence against the suspect, while hearsay is not admissible in a court-martial. In practice, conviction in an NJP is essentially a foregone conclusion: I had witnessed dozens, if not hundreds, of NJPs during my time in the military, and only in one case was anyone released. Being brought before an NJP essentially fulfills a similar role to a plea. By accepting a procedure where guilt is virtually certain, you also reduce the scope of the punishment you face, and having an NJP on your record is not nearly as damaging as a court-martial conviction.
Of particular note was the fact that military members have the legal right to refuse a NJP. That is, if you are charged with a NJP, you can refuse to accept it and instead demand that you be court-martialed. Why would anyone take that step? Remember that while the consequences of a court-martial are significantly greater, the legal requirements for a court-martial are also much more stringent.
A court-martial has similar guarantees as a civil trial: jury trial, suspect is presumed innocent in absentia and given the benefit of the doubt, legal restrictions on the admissibility of evidence, prosecution with the burden of proof, and so on. So if you thought your command might not be able to do that prove If you commit your misdeeds by that higher standard, it may be worth refusing the NJP and seeking a court-martial instead.
This puts people in the position of reenacting Gary Becker’s economic analysis of crime, something I’ve discussed before. Becker modeled decisions about crime as a form of rational choice. The relevant variables were the expected benefit of the crime committed compared to a combination of the probability and severity of the punishment. If a criminal considers committing a crime worthwhile, if he judges that the expected benefit of the crime outweighs the downside of the probability and severity of the punishment. In this case, instead of considering the expected benefit of a crime, one attempts to compare the probability of conviction with the severity of the punishment if convicted, and attempts to pursue the course of action that produces the minimum expected cost. An NJP has the probability variable increased all the way to essentially 100%, while the severity variable has been decreased.
The decision to reject a NJP in favor of court-martial was thus an attempt to figure out how to navigate this choice. If they had you dead for your rights, your chances of punishment in either context were very high, so the best you could hope for was to tone down the severity by accepting NJP. But if you thought their ability actually would prove If a case against you was shaky, the higher standards of proof required at court-martial might lower the probability dial enough to offset the increase in severity. And in practice that sometimes happened. I am aware of a few cases where someone refused NJP and demanded a court-martial, but the charges were dropped because investigators decided there simply wasn’t enough evidence to secure a court-martial conviction.
The result? I think this shows that rational choice theory is much more applicable to real-world decision making than people realize. The late Jeffrey Friedman, in his book Power without knowledge: a critique of technocracy, was highly critical of rational choice theory, arguing that in the real world people do not perform high-level mathematical calculations when making choices. As I described his position in my critique of his book:
He also appears to apply much stricter standards to evaluating rival models of behavior than his own. For example, when criticizing the idea of rational ignorance as described by Ilya Somin in his book Democracy and political ignoranceFriedman shows complicated mathematical equations that calculate the costs and benefits of political information and asks whether we can really believe that “billions of citizen technocrats expressly making calculations of the following kind to determine respectively whether they should vote and whether they should acquire political information… even though these formulas only appeared in print in 2013 (in Somin’s Democracy and political ignorance).”
Friedman briefly acknowledges that writers like Somin and Jason Brennan suggest that’s all voters need implicit He understands the low odds of casting a decisive vote, without having to do complicated math, but he rejects this idea. But in laying out his own theories, Friedman often describes them in terms of implicit understanding, tacit assumptions, and unconscious biases and thought processes, none of which require the kind of explicit attitudes that he claims rival theories embody. For example, when he theorizes about citizens who adhere to a simple ontology of society, he says that “none of these elements would normally operate at an explicit or conscious level.” He also says that people who act according to a naive realist worldview “may not, and in most cases probably don’t, understand that they are doing this” and may not even be aware that they are “subscribing to a worldview in the first place.” . It seems to me that if Friedman allows this kind of implicit, tacitly understood reasoning in his models, he should be willing to allow it for other theories as well.
The same can be said here. I witnessed many Marines in the type of situation I described above. I seriously doubt that any of them “explicitly made calculations” that reflected the very complicated mathematical modeling in the formal work of rational choice theory. Yet they were still doing these calculations. Not explicitly in very mathematical terms, but implicitly, using vaguer judgments and estimates rather than precise mathematical variables. Friedman oversimplified rational choice theory: by taking it overly literally (people explicitly perform complex mathematical equations on their decision-making!) he failed to take it seriously enough. But rational choice theory, properly understood, deserves to be taken seriously because its explanatory power is everywhere.