Abstract
The theoretical questions of this study are formulated on two levels. Basically, there is the question of the role of social norms in explanations of compliance in fisheries. In its most simple form, this question relates to the traditional distinction between the social, normatively oriented actor and the atomized, rational, utility maximising, self-interested individual. These two models have often been regarded as mutually exclusive in their pure and extreme forms. However, evaluating the relevance of these two models demanding that reality matches one or other pure type perfectly excludes us from making interesting analyses. A far more interesting question is the extent to which the two models are capable of contributing to an understanding of compliance. A complete understanding is likely to contain elements of both.
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References
Coleman (1990) has attempted to develop the utilitarian perspective so as to account for morality. This attempt will be discussed in chapter 7.
This notion of formal rule is drawn from Hart’s concept of law (Hart 1997), which will be elaborated later in this chapter.
This distinction is far from new. It has been made before by for instance Lindsay (1940) and Macbeath (1952: 55–56), although with differences of terminology.
As is probably already obvious to the reader, the concept of “legitimacy of law” is something different than Weber’s notion of “legal authority” (1978). While the first regards law as an object of justification, the latter regards law as a source of justification.
Hart (1997) has argued that not all laws are formulated in such a way that action which does not correspond to them is an offence to the law. This argument does not pose a problem to our concept of legitimate law because the absence of any obligation to act in a certain way in that case is defined by the law itself. The absence of an informal moral obligation to act in accordance with such a law is therefore not inconsistent with a moral obligation to obey the law.
By adopting Hart’s concept I have also avoided normativist concepts of law, such as can be found in the philosophy of natural law as distinct from positive law (Aubert 1989: 31–64). Hart’s positivist concept of law is thus consistent with the general empiricist perspective I have taken on law, morality and legitimacy.
Hart’s assertion that a concept of law does not imply that ordinary citizens feel any normative obligation to comply with the law has been criticised by Gerstein (1970). He argues that in order for something to be called a “legal system”, there ought to be attitudes that form part of what he calls a “practice of fidelity to law”, which is practice which can be defined by the general rule “obey the law” (1970: 490–491). Even though Gerstein emphasises that the attitude he refers to does not qualify for the term “moral obligation to obey the law” (1970: 493), it is clear that by accepting Gerstein’s criterion for the existence of a legal system, we come very close to including the concept of legitimacy into the concept of law. This discussion is no doubt interesting from the point of view of the legal philosopher, but accepting Gerstein’s point could pose a problem for the sociological analysis of legitimacy. For the sake of clarity, in empirical studies of legitimacy the sociologist may keep the question of the law’s legitimacy separate from the question of whether or not we are dealing with law. Even though Gerstein’s point, as he presents it, does not necessarily lead us into tautological arguments, the analytical points are no doubt easier to present clearly by continuing to use Hart’s original criterion.
Among the contributions on legitimacy and governance I have come across, Blau’s theory of exchange (1998) may be the one closest to this perspective. Blau begins with regarding authority as embedded in a moral obligation enforced by a collectivity of subordinates. However, as will be elaborated in chapter 7, his concept of institutionalised authority ends up potentially including compliance based on coercion and utility-oriented motives. It will also be argued that a major problem arises from his attempt to regard moral norms as ultimately stemming from utilitarian considerations.
Weber refers to this as “charismatic authority” (1978: 215).
It might possibly also cast some more light upon the earlier mentioned data presented by Nielsen and Mathiesen (2000) which suggest that fisheries regulations have a low degree of legitimacy among EU fishermen. Furthermore, the local and largely ethnically based resistance towards US game laws in the early twentieth century described by Warren (1997) might be interpreted as a similar phenomenon — poaching cultures arising as resistance against outsider interference.
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© 2003 Springer Science+Business Media Dordrecht
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Gezelius, S.S. (2003). Utility, Legitimacy and Punishment. In: Regulation and Compliance in the Atlantic Fisheries. Springer, Dordrecht. https://doi.org/10.1007/978-94-010-0051-2_2
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DOI: https://doi.org/10.1007/978-94-010-0051-2_2
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