Preemptive punishment and the emergence of sanctioning institutions

In explaining altruistic cooperation and punishment, the challenging riddle is how transcendental rules can emerge within the empirical world. Game-theoretical studies showed that pool punishment, particularly second-order punishment, plays a key role in understanding the evolution of cooperation. Second-order pool punishment, however, is tautological in nature; the punishment system itself is caused by its own effects. The emergence of pool punishment poses a logical conundrum that, to date, has been overlooked in the study of the evolution of social norms and institutions. Here, we tackle the issue by considering the interplay of (a) cognitive biases in reasoning and (b) Agamben's notion of homo sacer (Agamben, G. 1998, Homo Sacer: Sovereign Power and Bare Life, Stanford University Press); that is, a person who may be killed without legal consequences. Based on the cognitive disposition of reversing the cause-and-effect relationship, we propose a new system: the preemptive punishment of homo sacer. This action can lead to retrospectively forming moral assessments, particularly for second-order pool punishment. This study potentially provides new insight into the evolutionary process behind the emergence of social norms and institutions.