Academic journal article McGill Law Journal

Sanctions and Rewards in the Legal System: A Multidisciplinary Approach

Academic journal article McGill Law Journal

Sanctions and Rewards in the Legal System: A Multidisciplinary Approach

Article excerpt

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?

I. 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. …

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