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The Good, the Bad, and the Puzzled: Coercion and Compliance

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Conceptual Jurisprudence

Part of the book series: Law and Philosophy Library ((LAPS,volume 137))

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Abstract

The assumption that coercion is largely responsible for our legal systems’ efficacy is a common one. I argue that this assumption is false. But I do so indirectly, by objecting to a thesis I call “(Compliance),” which holds that most citizens comply with most legal mandates most of the time at least partly in virtue of being motivated by legal systems’ threats of sanctions and other unwelcome consequences. The relationship between (Compliance) and the efficacy of legal systems is explained in Sect. 2. There I also show that (Compliance) must be rejected for it relies on unsubstantiated empirical assumptions. In Sect. 3, I claim that an alternative and more refined formulation of (Compliance) also lacks adequate support. I conclude with a few general remarks about the centrality of coercion in our thought and talk about legal systems.

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Notes

  1. 1.

    This quote is often attributed to Durkheim, though it is never found in one of his books.

  2. 2.

    Finnis (2011), p. 266.

  3. 3.

    Lamond (2001), p. 45.

  4. 4.

    Spinoza (2007), secs 63–64.

  5. 5.

    Throughout the paper I take “typical legal systems” to refer to those legal systems that currently exist in western democratic states and those that closely resemble them.

  6. 6.

    See, Burazin (2019).

  7. 7.

    I’ll ignore complications associated with the relevant number of citizens that must comply with legal mandates and complications associated with the relevant number of legal mandates that must be complied with. I’ll equally ignore the discussion about whether mandates of a certain type must be complied by a certain type of citizen for a legal system to be efficacious. As important as these discussions may be for a rigorous understanding of the efficacy of legal systems, there is no need to engage with them for the purposes of this paper.

  8. 8.

    A number of legal philosophers have adopted a somewhat pessimistic view of human character and dispositions. For some recent examples of this presupposition in legal philosophy see, Plaxton (2012); Himma (2016). A similar presupposition is also widespread in political philosophy and economics. Elisabeth Anderson provides numerous examples in Anderson (2000). See also Brennan (2017).

  9. 9.

    See, e.g., Tyler (2006a), p. 67. Robinson and Darley have reviewed the relevant literature and provided a number of helpful references on this point. See Robinson and Darley (2004).

  10. 10.

    Robinson and Darley (2004), sec. 1A and passim.

  11. 11.

    Sometimes this generates pernicious effects. For example, it has been shown that because of the lack of relevant legal knowledge, workers tend to enter employment contracts on the assumption that legal rules extend to them far greater protection against unfair employment contracts than they actually do. See Kim (1997).

  12. 12.

    See, e.g., Paternoster (2010). For what is worth, even Robinson and Darley admit that. Robinson and Darley (2004), p. 173.

  13. 13.

    Robinson and Darley (2004), pp. 176–177 my emphasis. See also, Darley et al. (2001); Darley et al. (1996).

  14. 14.

    Tyler (2006a), pp. 67–68.

  15. 15.

    See Darley et al. (2001); Nadler (2004); Tyler (2006a); Tyler (2006b); Schauer (2015), p. 59.

  16. 16.

    Nadler (2004); Mullen and Nadler (2008); Robinson et al. (2010).

  17. 17.

    Raymon Paternoster claims that even if we assume that agents are ‘rational actors’ (a la Holmes’s bad man), there are reasons to think that the way actual criminal system is designed is insufficient to effectively change behaviour. See Paternoster (2010), sec. VI.

  18. 18.

    Robinson and Darley provide a helpful review of the empirical literature on this point. See Robinson and Darley (2004), pp. 178–182 and references therein.

  19. 19.

    Sherman (1993).

  20. 20.

    Frey and Oberholzer-Gee (1997); Gneezy and Rustichini (2000); Fehr and Rockenbach (2003); Heyman and Ariely (2004); Abbink et al. (2017).

  21. 21.

    Nadler (2017), p. 65.

  22. 22.

    Brennan (2017).

  23. 23.

    Notice that ‘good person’ here is not being used to suggest that people are generally morally good or virtuous. ‘Good’ is being used in the sense that people have a disposition to conditionally cooperate: to cooperate when they believe others will do the same. In that line, Samuel Bowles and Herbert Gintis, for example, calls humans the ‘cooperative species’. Bowles and Gintis (2011).

  24. 24.

    The literature is quite extensive. Some helpful examples are Dawes et al. (1990); Batson and Shaw (1991); Anderson (2000); Bicchieri (2006), chap. 4; Bowles and Gintis (2011); Embrey et al. (2018); Burton-Chellew et al. (2017).

  25. 25.

    Ostrom (1990); Ellickson (1991); Stringham (2015); Ellickson (2017); Brennan (2017).

  26. 26.

    Economists have extensively relied on a similar model of behaviour: the homo economicus. As some suggest, the homo economicus was a useful construct that allowed economists to build economic and mathematical models in a time where economic tools were more rudimentary than they are nowadays. Some contemporary economists, however, urge for the abandonment of the construct given that now we have better tools to build economic models based on a less simplified assumption of human character and rationality. See Thaler (2000). On the importance of the homo economicus construct to economic theory, see Ross (2012).

  27. 27.

    Frederick Schauer provides many helpful references. See Schauer (2015), chaps 5–6.

  28. 28.

    For a helpful analysis of how helmet laws clashed with the cultural values of some groups in the USA, see Jones and Bayer (2007).

  29. 29.

    Schauer (2015), p. 50 my emphasis.

  30. 30.

    Ibid., p. 54.

  31. 31.

    Several passages in Schauer’s recent book corroborate this view. See, for example, Ibid., p. 46.

  32. 32.

    Ibid., p. 46. As I said, Schauer sympathises with this view. Schauer, however, never explicitly endorses it in such strong terms (though much of his book suggests that he does endorse this thesis in these terms). In the quoted passage, Schauer is talking about a view that someone may possibly hold (it is, by the way, a view explicitly endorsed by Michael Plaxton. See Plaxton (2012).

  33. 33.

    Schauer (2015), p. 47.

  34. 34.

    Ibid., pp. 47–48.

  35. 35.

    See Ibid., chap. 5 and passim.

  36. 36.

    Mark Greenberg has recently made a similar point. He thinks that Schauer’s characterisation of the puzzled person is that of someone who has a fetish for the law. See Greenberg (2018), p. 376.

  37. 37.

    I make a similar point in Miotto (2016), pp. 233–234. Mark Greenberg has also recently made a similar point and emphasises that the puzzled person can follow the law for moral reasons. See Greenberg (2018).

  38. 38.

    Schauer (2015), pp. 46–48.

  39. 39.

    Ibid., p. 62.

  40. 40.

    Hart (2012), p. 40.

  41. 41.

    “[S]ome [people obey the law] from prudential calculation that the sacrifices are worth the gains, some from a disinterested interest in the welfare of others, and some because they look upon the rules as worthy of respect in themselves and find their ideals in devotion to them.”. Ibid., p. 197.

  42. 42.

    Tom Tyler is another example. Contrary to what Schauer suggests, Tyler doesn’t assume that there is a vast number of puzzled people in our societies. Besides, in his empirical studies, Tyler distinguishes quite a few different motives for following the law (e.g., deterrence, legitimacy, peer disapproval, political factors, etc) and measures the influence of each of these distinct motives in isolation. Tyler also recognises that people often comply with the law for a mix of motives. See Tyler (2006a), p. 59.

  43. 43.

    Weber (1978), pp. 31–33.

  44. 44.

    Tom Tyler provides a helpful overview of the concept of legitimacy presupposed in empirical studies. See, Tyler (2006a), pp. 27–30.

  45. 45.

    Ibid., p. 58.

  46. 46.

    Ibid., p. 57. See also Gibson et al. (2005); Tyler (2006a); Papachristos et al. (2012); Tyler and Jackson (2014).

  47. 47.

    Greenberg (2018), p. 377; Hughes (2018).

  48. 48.

    This way is not mentioned by Mark Greenberg or Robert Hughes. However, it is consistent with the point they make.

  49. 49.

    Huang (2017).

  50. 50.

    Greenberg (2018), p. 377 and passim; Hughes (2018), pp. 362–364. The general point being made here is an old one. It can be traced back to Aquinas and his idea of determinatio: that legal systems can create moral reasons by making precise what morality leaves imprecise. See, Aquinas (1947), p. Q.95.

  51. 51.

    Hughes (2018).

  52. 52.

    Ibid., p. 364.

  53. 53.

    Ibid., p. 365.

  54. 54.

    Schauer (2015), p. 46; Plaxton (2012).

  55. 55.

    Cristina Bicchieri, for example, has carried out a number of empirical studies on the topic and provided an extensive and helpful discussion on it in a series of works on the topic. See, e.g., Bicchieri (2006); Bicchieri and Xiao (2008); Bicchieri and Chavez (2010).

  56. 56.

    Gerald Gaus elaborates on some implications of this feature of Bicchieri’s work to discussions in political philosophy. See Gaus (2016), p. 5.

  57. 57.

    See McAdams (2000); McAdams and Nadler (2005); McAdams and Nadler (2008); McAdams (2015).

  58. 58.

    McAdams (2015), p. 5.

  59. 59.

    Of course, people who are accustomed to driving on a particular side of the road may have a strong preference for that side. My point presupposes a scenario where driving rules have been first introduced to a population new to driving. The central point being made in the passage, however, works for any kind of pure coordination problem. So, if the reader finds the driving example too unrealistic, I suggest them to adapt the example.

  60. 60.

    McAdams (2015), p. 57 and passim.

  61. 61.

    Ibid., pp. 42–43 and passim.

  62. 62.

    Nadler (2017), pp. 64–65.

  63. 63.

    A helpful and detailed case for this claim is made by Richard McAdams. See McAdams (2015), pp. 27–42.

  64. 64.

    For examples in administrative law and by-laws see Nadler (2017), p. 66.

  65. 65.

    McAdams (2015), chap. 2.

  66. 66.

    For more examples, see Ibid., pp. 67–92; Nadler (2017).

  67. 67.

    McAdams (2015), p. 137.

  68. 68.

    Nadler (2017), p. 63.

  69. 69.

    Schauer (2015), pp. 64–65; Schauer (2017), p. 93.

  70. 70.

    See Schauer (2015), p. 64; Schauer (2017), p. 92. See also McAdams (2015), p. 8.

  71. 71.

    For a helpful, and somewhat historical, overview of the shift from regulation centred on negative incentives to alternative and more nuanced forms of motivating compliance with legal mandates, see Lessig (1998). The growth of alternative regulation such as nudging is not an unknown phenomenon; it has even made it to the news. For a news piece focused on the UK, see Rutter T (2015) The rise of nudge – the unit helping politicians to fathom human behaviour. In: The Guardian. https://www.theguardian.com/public-leaders-network/2015/jul/23/rise-nudge-unit-politicians-human-behaviour. Accessed 15 January 2021.

  72. 72.

    Bicchieri et al. (2017). See also references therein. Gerald Gaus has made a similar point and explored these conclusions to political philosophy. See Gaus (2016). Gaus also mentioned this point in a recent interview. See Marshall R, Gaus G (2016) The Tyranny of the Ideal. In: 3:AM Magazine. http://www.3ammagazine.com/3am/the-tyranny-of-the-ideal/. Accessed 15 January 2021. In a similar vein, Richard McAdams argues for another sense in which the threat of unwelcome consequences is parasitic on legal system’s non-coercive side. He defends that legal sanctions ‘owe their power entirely to the law’s ability to facilitate coordination expressively’. McAdams (2015), p. 7 and 57–67.

  73. 73.

    Hart (2012), pp. 21, 39.

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  1. University of Maastricht, Maastricht, The Netherlands

    Lucas Miotto

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  1. Lucas Miotto
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Correspondence to Lucas Miotto .

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  1. Faculty of Law, University of Toronto, Toronto, ON, Canada

    Jorge Luis Fabra-Zamora

  2. Hermann Kantorowicz-Institute of Fundamental Legal Research, University of Kiel, Kiel, Germany

    Gonzalo Villa Rosas

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For comments and suggestions that greatly improved this paper I’m thankful to Anthony Duff, Himani Bhakuni, James Edwards, Luís Duarte d’Almeida, Neil Walker, and the editors of this book.

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Miotto, L. (2021). The Good, the Bad, and the Puzzled: Coercion and Compliance. In: Fabra-Zamora, J.L., Villa Rosas, G. (eds) Conceptual Jurisprudence. Law and Philosophy Library, vol 137. Springer, Cham. https://doi.org/10.1007/978-3-030-78803-2_7

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