Academic journal article Human Organization

Three Paths from Law Enforcement to Compliance: Cases from the Fisheries

Academic journal article Human Organization

Three Paths from Law Enforcement to Compliance: Cases from the Fisheries

Article excerpt

The article addresses three mechanisms whereby enforcement may generate compliance among citizens: the Hobbesian mechanism, which emphasizes deterrence, the Habermasian mechanism, which emphasizes rational communication, and the Durkheimian mechanism, which emphasizes enforcement's symbolic meaning. It addresses these mechanisms in three ethnographic studies of compliance in fisheries, and argues that the Durkheimian view of law enforcement has unjustly been neglected in compliance research and deserves a place alongside the Hobbesian and Habermasian views.

Key words: enforcement, fisheries, compliance, morality

Three Views on Law Enforcement

Writings on citizens' law-abidingness have often emphasised the deterrent effects of formal law enforcement (Friedland, Thibaut, and Walker 1973; Kuperan and Sutinen 1998; Meier and Johnson 1977; Tyler 1990). This view can be traced to the legacy of Thomas Hobbes (1984 [ 1651 ]), who regards law as a representation of the mutual interests of citizens who are incapable of creating social order through moral community. Hobbes' state imposes external rules upon individuals and ensures their compliance "by the terrour of some punishment, greater than the benefit they expect by the breach of their Covenant...." (Hobbes 1984 [1651]: 101). In modern social theory, the Hobbesian legacy is represented by the economic view of crime and deterrence (Becker 1968), and will be referred to as the "Hobbesian mechanism" of law enforcement.

More than two centuries later, Emile Durkheim developed his theory of social order that opposed Hobbes' pessimistic view. Durkheim (1984 [1893]) sees penal law as the representation citizens' shared morality. Except for in "rare, pathological cases" (p. 26), it emerges as the welldefined expressions of civil society's collective consciousness. Durkheim regards penal law as the manifestation of a latent social solidarity; the state is thus a continuation of civil society's moral community. Crime emerges as an attack on this collective moral consciousness, and punishment represents society's emotional response. The punishment highlights the deviant and reproachable nature of the crime, and thus confirms the moral unity that has been attacked. Punishment's main function is thus to symbolically restore the moral order of society.

Hobbes and Durkheim formed different legacies in terms of the role of rationality in social theory. In modern social science, the Hobbesian perspective is associated with utilitarian rational choice theory, while the Durkheimian legacy is less concerned with rationality than with the social psychology of normative action. Modem contributions developed intermediate positions, emphasising the rational aspects of normative action. Weber's (1978 [1921]) idea of "value rationality" has been developed in Habermas' (1984) theory of communicative action, which addresses the conditions for rational consensus through communication subject to clear criteria of validity.

Research on crime and law-abidingness has drawn on all of these three schools of thought, but the Hobbesian legacy's influence has been greatest in terms of law enforcement's regulatory effect. Formal enforcement variables, such as risk of detection and severity of penalty, have often been regarded as indicators of the explanatory power of rational choice theory, while the Durkheimian legacy has been associated with explanations that are not directly linked with enforcement, such as the actor's moral development, the behavior of the actor's peers, and the perceived legitimacy of regulations (Grasmick and Green 1980; Paternoster et al. 1983). This pattern is observed in the literature on compliance in fisheries, which was dominated by neoclassical economics for several years (Andersen and Lee 1986; Blewett, Furlong, and Toews 1987; Furlong 1991; Sutinen and Andersen 1985) before normative action received attention (Gezelius 2002, 2006; Hatcher et al. …

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