Legitimacy and Compliance in Criminal Justice

Edited by: Adam Crawford and Anthea Hucklesby
Publisher: New York: Routledge, 2013. 221p.
Reviewer: Stéphane Lefebvre | July 2013

Legitimacy and Compliance in Criminal Justice is a very informative, well-written and comprehensive effort at understanding the influence of crime control on behavior. All authors are in agreement that to be efficient and effective any measure of crime control requires broad public consent. To generate such consent, the systems of authority and the professionals who operate them must be seen as legitimate. An absence or a serious lack of legitimacy in either or both would crucially and negatively affect the compliance of people with the law. Why people obey the law is therefore not only a matter of self-interest but also a normative matter “linked to perceptions of legitimacy” (p. 2). If systems of authority and criminal justice professionals are seen as legitimate, people can be assumed to generally defer to authority and be in compliance with the law. Criminal justice professionals would thus only have to resort to coercive legal powers if compliance breaks down. As it is not possible for any system of authority and for criminal justice professionals to account for every single person’s behavior all the time, the authors agree that legitimacy is a necessary factor to motivate the majority of people to self-regulate their behavior. People, in other words, “are not only self-interested but also moral agents” (p. 3).

To test these claims at a time when legitimacy deficits are apparent (rehabilitation and prevention efforts often fail, sovereign states do not all exercise a continuous and effective monopoly over the use of force, there is a multiplicity of sites and modes of regulation, etc.), the editors have called on criminologists, psychologists and socio-legal scholars to offer case studies in different areas of criminal justice that highlight the connections between legitimacy and compliance. The first three chapters are in the area of policing, the next two in the areas of banking and tax, and the final four in the areas of community sentences and anti-social behavior interventions.

In chapter 1 on the virtues of self-regulation, Tom Tyler argues that there is a paradox of policing in America today whereby the improved level of police performance is not commensurate with the level of public support, which has remained unchanged. If it is not objective performance, he wonders then what the basis of perceived police legitimacy is. He notes first that police legitimacy does not derive ipso facto from the ability of the police to motivate behavior through the use or the threat of the use of punishment. Simply put, punishment is not the best way to deter non-compliance with the law. Secondly, he highlights the fact that research has shown over the years that police legitimacy has more to do with how police officers treat people and make decisions affecting them—in other words with their degree of fairness and neutrality and their non-discriminatory behavior—than the fear of punishment. Accepting the soundness and reasonableness of these two observations, Tyler then asks how people do evaluate police practice. The answer is: in a very straightforward, fact-based manner. If for example, people are given an opportunity to explain their side of an issue and feel fairly treated, then they are more likely to defer to authority and accept police actions as legitimate. The police, therefore, are in a position to change their practices in order to be viewed as fairer—“building legitimacy is a goal of policing” (p. 17) Tyler writes. Tyler also draws a parallel with the court system, which could change its approach to ensure participation on the part of those affected, and neutral and respectful treatment.

In chapter 2 on policing by consent, Jonathan Jackson, Ben Bradford, Mike Hough and Katherine Murray distinguish between instrumental and normative motivations for compliance. Using survey data from England and Wales, they reject the simple model of crime control based on deterrence through punishment—or instrumental compliance—and argue instead that this is only one of many systems of social control, “most of which have a significant normative dimension” (p. 30). They note that people are more likely to obey the law if they grant legitimacy to authorities (that is, granting them rights to exist and exert power). They recognize, however, that motivations to comply may be deeply embedded and subconscious, especially when obeying the law has become routinized for people who think that it is morally just to do so. They also make the point that police legitimacy is not akin to legal legitimacy. There can only be police legitimacy if there is “a sense of shared moral values and subsequent group identity” (p. 34) between the police and people. This alignment of moral values between people and the police “activates a group-based morality […] that leads people to adhere to group rules […]” (p. 35). Compliance with the law therefore occurs because it is seen as the right thing to do by those governed. It is not dependent on predetermined objective criteria of legitimacy, but rather empirical legitimacy, or the subjective state of mind of those governed.

In chapter 3 on punishment, Sonja Snacken distinguishes between the normative (human rights, the rule of law, and democracy) and empirical (the perceptions of politicians, members of the public, offenders, victims, and professionals) legitimacy of penal policies. She correctly observes that penal policies in the US and the UK are no longer the result of a balance between social order and human rights, but of penal populism, or the “political interpretations of supposed punitive expectations of victims and the general public, and which are hence no longer governed by the rational rule of law but by emotional discourse and expressive justice” (p. 53). By contrast, in Europe (that is, in non-Anglo-Saxon countries) she notes that public opinion (including the voices of victims) does not influence the protection of fundamental human rights and freedoms, and that offenders and prisoners are gaining increased protection. Snacken hence argues that penal populism should not displace normative legitimacy (human rights and the rule of law). When procedural justice is perceived to be present by the public and victims, then they are more in line with penal policies based on normative arguments instead of penal populism.

In chapter 4 on the banking crisis, Doreen McBarnet makes the point that compliance is not a straightforward notion because people can comply in a variety of ways, from fully complying in line with the legitimacy granted to the justice system, to complying on pragmatic grounds, and to complying creatively. The latter form of compliance is McBarnet’s primary interest, for she sees it as the dominant culture of compliance in business. It implies complying with the law on very narrow technical grounds while frustrating its purpose, or findings ways to go around the law itself, such as playing with the law (ensuring that it can be circumvented, that it is overly complex and opaque), which McBarnet calls “legal engineering” (p. 72). The latter method, she argues, was at the heart of the banking crisis of 2008. And the tighter the rules are, the easier it is to legal engineer them. Thus adopting a principles-based regulation approach in business would help to meet the spirit of the law, although it would be difficult to enforce. A change of business culture would be necessary as well.

In chapter 5 on tax authorities and legitimacy, Valerie Braithwaite focuses on two kinds of defiance to the power that the authorities have to coerce compliance: resistant defiance and dismissive defiance. The former reflects an acceptance of the tax system but displeasure and discontent with the exercise of power by the authorities, whereas the latter reflects a questioning of the existence and necessity of a tax system. In the case of dismissive defiance, the public, usually following some kind of role model, can disengage with the system or try to beat the system at its own game (e.g., finding loopholes or ways around regulation). Braithwaite’s data show that a resisting public will be more likely to comply if they believe that the authorities are legitimate (that is, they follow the rule of law, there is shared social belief that the rules they enforce are necessary, and there is consent to the power relations between the public and the authorities). A dismissive public, however, would not care much whether a tax system is legitimate or not. Therefore, in that situation “seeing an authority with credible deterrence capability becomes imperative” (p. 109).

In chapter 6 on court-imposed community sanctions and post-release licenses and their legitimacy, Fergus McNeill and Gwen Robinson make the point that in the eyes of offenders, legitimacy is a highly fluid notion. Legitimacy appears fluid because of the fact that community sanctions are negotiated, constructed, contested, and reconstructed by all those involved. Whether or not community sanctions work is difficult to ascertain, especially with respect to the quality of compliance. Here, the relationship of the offender with the person responsible for the administration of community sanctions will be important to give legitimacy to sanctions and compliance with these sanctions.

In chapter 7 on compliance with electronically monitored curfew orders, Anthea Hucklesby makes the point that such measures do not eliminate the possibility that a person subject to them offends, for example by offending at home or “changing their modus operandi to accommodate curfew times” (p. 139). Such non-compliance, especially if well publicized, reduces the legitimacy of sanctions and of the criminal justice system. Using a sample of 217 offenders, Hucklesby observes that all but two had not complied fully with their curfews. In addition, being subject to a curfew order does not prevent offenders from offending within the confines of the limitations imposed by the curfew. Yet, offenders generally complied either for instrumental (fear of punishment) or normative (sense of obligation) reasons, the monitoring technology being “only part of the equation in terms of compliance” (p. 151). Non-compliance, Hucklesby submits, is not always planned. To ensure compliance, a multi-dimensional approach tailored to each offender is recommended.

In chapter 8 on implant technology and the electronic monitoring of offenders, Mike Nellis observes that such technology may not only augment but supplant wearable equipment at some point in time. He notes, however, that implant technologies at the moment have no obvious tracking and tracing advantages over wearable electronic monitoring technologies. Moreover, the choice between implant and wearable technologies “is never simply a question of technical efficacy—their legitimacy, grounded in moral and (as importantly) emotional reactions to them, matters too” (p. 173). Yet, what the future holds in this area cannot be accurately predicted.

In the final chapter, Adam Crawford offers his thoughts on compliance and legitimacy in the regulation (through anti-social behavior orders, housing injunctions, acceptable behavior contracts, parenting orders or contracts, dispersal orders, etc.) of youth anti-social behavior. He expresses concern that these novel ways of regulating youth anti-social behavior present “acute legitimacy challenges”(p. 181) by blurring the distinctions between criminal and civil legal processes and between formal and informal interventions, and rendering non-compliance a punishable offence (and thus grounds for criminalization) although the initial conduct was not a crime. Because the regulation of youth anti-social behavior is based on a precautionary approach in the form of pre-emptive governance, Crawford raises important questions about its implications for criminal justice values (i.e., due process, proportionality) and civil liberties:

Should the state interfere only on the basis of known past incidents or probable grounds to suspect future misbehaviour and an identified threshold of seriousness? Is intervention justifiable by reference to future risks, likely or possible eventualities, or uncertain outcomes? What are the limits that ought to constrain both the preventive scope of legal interventions and the use of civil procedures and remedies for crime control purposes?

Crawford notes as well that anti-social behavior orders are often seen by those subjected to them as ineffective and illegitimate, and that there is a dearth of research on their effectiveness in inducing behavioral compliance. While most orders take the form of contractual governance with carrots and sticks used as levers of motivation and behavioral change, Crawford adds that they also embody values and virtues that appeal to moral responsibility. Yet, he stresses that we still “know very little about the manner in which young people interpret and react to attempts to alter their behaviour through diverse forms of normative and instrumental inducements” (p. 208).

Taken together, the chapters in this book offer insight into legitimacy and compliance in a broad array of criminal justice areas. They are theoretically and empirically informed and well argued, more so in fact than I have been able to convey in this review. The applicability of the concepts and conclusions, however, remains largely confined to Anglo-Saxon countries and, in part, Europe. It would have been interesting to contrast the issues covered with the manner in which they play out in countries and regions with different cultures, socio-legal traditions, and penal systems. That said, this book represents a good starting point for those interested in pursuing research on legitimacy and compliance in criminal justice. Besides taking stock of the arguments and theories informing academic debates, it also pinpoints areas in need of further theoretical and empirical research. I highly recommend this book to graduate students, academics and criminal justice professionals.

Stéphane Lefebvre is a PhD candidate at the Department of Law & Legal Studies of Carleton University in Ottawa, Canada. He has published over 20 book chapters and journal articles and over 70 book reviews. His latest published work is an entry on “Intelligence Sharing and Law Enforcement Cooperation between Nations,” in Counterterrorism: From the Cold War to the War on Terror, Frank Shanty, General Editor, Santa Barbara: Praeger, 2012.