Sanctions and Rewards in the Legal System: A Multidisciplinary Approach.

• Author: Janda, Richard

Martin L. Friedland, ed., Sanctions and Rewards in the Legal System: A Multidisciplinary Approach. Toronto: University of Toronto Press, 1989. Pp. 224 [$30.00].

Martin L. Friedland, ed., Securing Compliance: Seven Case Studies. Toronto: University of Toronto Press, 1990. Pp. 440 [$60.00].

Policy Goals, Instrumentalism and Fundamental Research

In 1983, the Arthurs Report (1) sounded a clarion call for more multidisciplinary, empirical "fundamental research" in law. (2) Sanctions and Rewards in the Legal System: A Multidisciplinary Approach (3) and Securing Compliance: Seven Case Studies, (4) two volumes that are the fruit of work funded by the Canadian Institute for Advanced Research, (5) represent perhaps the most ambitious attempt to date to respond to that call.

Martin Friedland, (6) the editor of both volumes and past Director of the CIAR's Law and Society Program, first assembled a symposium of ten scholars --an anthropologist, business professor, economist, historian, political scientist, psychologist, and sociologist as well as three law professors--and set each of them the task of discussing how law controls and regulates conduct and which techniques are most effective. The first volume, Sanctions and Rewards, is the collection of papers from that symposium. It was designed to gather together strategies and insights from the various disciplines that could then be used at the second stage of research into compliance with the rules and standards governing specific fields. (7) The second volume, Securing Compliance, explores techniques for assuring compliance in relation to prostitution, securities markets, income tax, traffic safety, waste management and workplace accidents, environmental pollution and family violence. (8)

How successful was this two-step research agenda and what does it tell us about the prospects for "fundamental research" in law?

1. Sanctions and Rewards

   Interesting insights are scattered through the first volume and patience in uncovering them is repaid. For example, John M. Beattie, in his historical survey of criminal sanctions, gives some attention to the changing vocabulary of "prisons," "houses of correction" and "penitentiaries," names which symbolize differing sanction goals and strategies. (9) H. Laurence Ross (10) and Franklin E. Zimring (11) both note some important limits to cross-sectional studies and studies employing econometric techniques. Philip J. Cook makes use of bounded rationality theory in applying economic models to criminal sanctions (12) and has an especially useful account of automobile theft which dissects the structure of the "hot" auto market and discusses the range of deterrence options with respect to different actors in that market. (13) Rabin urges sensitivity to the differing goals of a tort regime, noting that if deterrence is poorly achieved through tort, compensation is almost certainly better achieved through other means. (14) Joan E. Grusec draws attention to the importance of a proactive structuring of the environment as a means of chanelling the behaviour of children. (15) Hugh J. Arnold gives a number of suggestive examples of the use of rewards in the workplace as a management technique. (16) Pierre Maranda, drawing an implicit contrast to the economic rational actor model, stresses that for some, marginalization and deviance are indicia of creativity--they seek "vertigo," not "social inertia." (17) Carolyn Tuohy, emphasizing the importance of democratic accountability and participation, highlights Aaron Wildavsky's argument in favour of "interaction" as opposed to "cognition" modes of public policy-making. (18) Christopher D. Stone suggests that more attention be paid to using various penalty "currencies" (e.g., removing tax-exempt status, cancelling funding, divesting patent rights). (19)

   Intriguing as this sample of ideas may be, it illustrates a problem: multidisciplinarity carries with it the danger of eclecticism. The most discernible common denominator among these various articles is the acceptance of an instrumentalism which is virtually agnostic about the goals that effective instruments are to serve. Furthermore, it is assumed that some dictate of central authority--be it through sanctions or rewards--is always the appropriate response to social problems. (20) The authors seemed to have asked themselves: for any given human phenomenon in need of control, what can my discipline say about achieving successful results?

   According to some of the authors, however, this is more than just a way of asking a question in order to produce an inter-disciplinary dialogue. Grusec, Arnold and Maranda's instrumentalism is more thoroughgoing. For Grusec, psychology is about "the mechanisms underlying the manipulation of human behaviour." (21) For Arnold, "the role of management is to manipulate the behaviour of members of the organization." (22) For Maranda, society itself is animated by the barest instrumentalism: "societies exist only to reproduce themselves." (23) By treating "human phenomena" as external objects that are subject to manipulation, these social scientists seek to replicate the system and rigour of the natural sciences. (24) Indeed, others have had that aspiration for law. (25) But in the social sciences, to a much greater degree than in the natural sciences, we are our own subject matter. Human needs, purposes and self-perceptions are fundamental to understanding how human beings behave. And, more significantly for the study of law, human needs and purposes are fundamental to choosing the laws that ought to govern us and the methods by which they should do so. An instrumentalism that is agnostic about human purposes is therefore all but devoid of value for law reform. (26)

   This is not to say that multidisciplinary approaches to legal research drawing upon the social sciences are necessarily instrumentalist in a way that is indifferent to human purposes. At several points the articles in this volume suggest the contrary. Tuohy, in particular, provides a compelling account of the interrelationship between collective objectives and policy instruments. (27) It therefore remains important to ask what the various social sciences can teach legal scholars. (28)

   The Suggested Research Agenda

   Each of the contributors seems to have been given the task of synthesizing her or his observations into a proposal for the research agenda of the broader compliance project. By setting out these proposals together, one can gain some insight into the success of the project as a whole and into the prospects for multidisciplinary "fundamental research."

   Beattie favours further research into

   how imprisonment has been adapted in the last hundred years, how it has been modified and reinforced by early-release incentives, parole and community orders, and by prisoners' rights, and how other and alternative sanctions have been elaborated. (29) Ross argues that a great deal of attention ought to be paid to the "law in action" (rather than the "law in concept") as practiced by "street level bureaucrats" such as police officers, insurance adjusters, inspectors and other officials. (30)

   Cook suggests that four lines of investigation centred on the criminal deterrence process are particularly worthy of economic analysis: (1) laboratory experiments into risky decision-making, taking into account such factors as age, emotional arousal and inebriation; (2) analysis of the "marketing" of criminal law threats (e.g. using research on commercial advertising as a source of hypotheses about threat communication, interviewing active and potential criminals about their sources of information about the effectiveness of law enforcement, and studying criminal response to "environmental cues" such as visible police patrols); (3) research on complementarity and substitutability of different crimes, exploring the effect of enforcement efforts against one crime on other crime rates; and (4) research on the deterrence effects of criminal law measures having other preventive effects (such as incapacitation and rehabilitation). (31)

   Robert L. Rabin proposes the following "area studies" to test whether tort liability over-deters or under-deters commercial, professional and other activity: (1) an investigation of how corporate management in the drug and chemical industries is influenced by the prospect of tort liability; (2) time-series and cross-industry studies of the relationship between product liability claims experience and investment decisions; (3) cross-sectional or time-series studies of the changes in medical practice occurring as a consequence of stringent malpractice liability rules; (4) an analysis of the response of municipalities (i.e. injury prevention, reduction of services, revenue-raising and self-insurance) particularly to unpredictable damage awards in serious injury cases; and (5) a systematic study of the kinds of hazards that cause traffic accidents and their respective susceptibility to deterrence pressures, taking into account motor vehicle design, road-engineering, driving conduct and the comparative deterrent effect of third-party and first-party liability insurance systems. (32)

   As is indicated by the title of his paper, "Methods for Measuring General Deterrence: A Plea for the Field Experiment," Zimring urges much more extensive use of "field experiments" to track what happens to crime rates after a particular policy change is announced--ideally making use of control groups and repeated in other settings. (33)

   Grusec contends that greater attention ought to be paid to: (1) the interaction of punishment, education, reasoning and persuasion in achieving compliance; (2) controlling opportunities for "anti-social behaviour" and providing models of "pro-social behaviour"; (3) the desire of society for revenge in the case of particularly repugnant crimes; and (4) individualizing sanctions so as to produce appropriate behaviour in particular...