Beyond procedural justice: a dialogic approach to legitimacy in criminal justice.

• Author: Bottoms, Anthony

1. INTRODUCTION

   The topic of legitimacy is of great theoretical and practical importance within the field of criminal justice, but it remains under-studied by criminologists and socio-legal scholars. Unquestionably the dominant theoretical approach to legitimacy within these disciplines is that of "procedural justice," based especially on the work of Tom Tyler. At the time when he wrote his path-breaking book Why People Obey the Law, Tyler regarded himself as a psychologist, not a criminologist. (1) Nevertheless, the book has in significant ways transformed criminology, and for that the discipline owes him a huge debt of gratitude. (2)

   Tyler began his seminal work by contrasting instrumental and normative modes of obedience to law, and he then subdivided the normative mode into "personal morality" (that is, people's general set of beliefs as to how they should act) and "legitimacy" (that is, people's perception as to whether law enforcement officials rightly have authority over them). Surveys were conducted of the general population, asking questions about their recent contacts with the police or the courts, their reaction to such contacts, and their subsequent behavior. To quote the jacket of his book, Tyler's principal conclusion was that "people comply with the law not so much because they fear punishment as because they feel that legal authorities are legitimate and that their actions are generally fair." (3) Thus, his empirical results led Tyler to prioritize normative compliance over instrumental compliance, and, within normative compliance, to emphasize legitimacy. The final phrase of the jacket summary (above) also captured a further important dimension of the results: it was the perceived procedural fairness of law enforcement authorities, rather than the favorability or the perceived fairness of the outcome of the citizen's encounter with them, that was particularly important in shaping respondents' subsequent compliance.

   Tom Tyler has followed up this initial research with an impressive series of further survey-based studies, including some that have used a panel design rather than a cross-sectional approach. These studies have amplified but also confirmed the original results. (4) Together, this corpus of work is rightly regarded as the most important criminological scholarship on legitimacy currently available. Tyler has summarized his main theses in a useful diagram, reproduced here as Figure 1. (5) In this diagram, the concept of procedural justice is divided into two components. These are, first, whether citizens are treated fairly when law enforcement authorities make decisions about them (for example, by being allowed to have their say, without interruption or harassment, prior to a decision being made: "quality of decisionmaking"); and secondly, whether law enforcement officers treat citizens with proper respect as human beings, each with his or her own needs for dignity, privacy, and so on ("quality of treatment"). Tyler contends that procedural fairness, if present, is more likely to lead to (1) immediate decision acceptance, and (2) an initial ascription of legitimacy to the law enforcement authority. In the longer term, he further argues that "to the degree that people do regard the police and courts as legitimate, they are more willing to accept the directives and decisions of the police and courts, and the likelihood of defiance, hostility, and resistance is diminished." (6)

   Most of the empirical work of Tyler and his colleagues has been focused on the police and the courts, and it uses survey-based methodology. A second strand of criminological research into legitimacy has, by contrast, focused on the everyday internal life of prisons. This strand began with Sparks, Bottoms, and Hay's Prisons and the Problem of Order, a primarily ethnographic study of two English maximum security prisons with radically contrasting regimes. The authors deployed legitimacy as a central conceptual tool in analyzing what they describe as "the perennial problem of securing and maintaining order in prisons, rather than the special problem of the occasional complete or near-complete breakdown of order." (7)

   [FIGURE 1 OMITTED]

   Subsequent studies, which have significantly advanced our understanding of legitimacy in the prisons context, have been conducted by Alison Liebling and her colleagues in the Prisons Research Unit at Cambridge University, using a mixture of prison-based surveys and ethnography. (9) Despite the different methodological approach, these various studies have confirmed the importance of procedural justice as described by Tyler. They have also, however, introduced to the discussion some fresh elements, of which two are of special importance in the present context.

   First, it has been shown that legal officials sometimes have to consider their legitimacy in relation to more than one audience and that these audiences might have significantly different priorities. (10) In the case of prisons, that is of course particularly true regarding the differing priorities of prisoners and the general public; but analogous problems arise for the police in the policing of any neighborhood where different groups have conflicting interests.

   Secondly, prison researchers have also shown that, within the enclosed context of a custodial institution, perceived outcome fairness as well as procedural fairness can be of great importance to the achievement of staff legitimacy in the eyes of prisoners. (11) This result arises especially because the outcomes of most incidents are widely known throughout the prison, a situation that is frequently not replicated in neighborhood community contexts.

   Prison-based research on legitimacy has therefore begun to open up some aspects of legitimacy and criminal justice that go beyond the parameters of the work on procedural justice. A similar widening of the terms of the debate may be found in the Russell Sage Foundation volume entitled Legitimacy and Criminal Justice, edited by Tom Tyler--although curiously, that volume is almost wholly silent about legitimacy in prisons. (12) Conceptually speaking, the most important essay in that volume is that of David Smith, in which a central argument is that "procedural justice [research] work, although powerful, is limited in scope," and that it is therefore necessary to take "a wider view of the issues." (13)

   In our judgment, Smith is right to seek to broaden the debate in this way. Yet it has to be said that neither the Russell Sage Foundation volume, nor the existing literature on legitimacy in prisons, takes full account of the rich tradition of theoretical discussions of legitimacy within the social sciences, especially in political science. The most important purpose of this Article is therefore to offer a fuller account of how the concept of legitimacy might optimally be theorized within a criminal justice context, using these broader social science resources.

   In pursuing this agenda, we take as our starting point the introductory chapter by Tyler and colleagues in the Russell Sage Foundation volume. (14) That chapter begins by posing what are rightly described as some "larger conceptual questions" within which empirical studies of legitimacy must be conducted. The three larger questions identified are: (1) "the definition of legitimacy," (2) "the reasons legitimacy is important within a social system," and (3) "what factors create and sustain legitimacy, that is, what forms of social organization or what dynamics of authority are viewed by the members of particular social groups as being appropriate and hence legitimate the exercise of authority." (15)

   In the Russell Sage Foundation symposium, these three vital questions are used to delineate and differentiate the principal sections of the book; we have chosen to follow a similar approach by adopting them as the titles of three of the sections of this Article. We also, however, include two other sections. One focuses on Max Weber's discussion of legitimacy, since this remains central to the field, although as will be seen we do not recommend a wholesale adoption of Weber's approach. In the concluding section, we shall consider--in a broad-brush manner--some implications of our theoretical analysis for future empirical studies of legitimacy in the field of criminal justice. We regard this as an important part of the Article, and it serves to emphasize that we are concerned not simply with conceptual clarification, but also with the further advancement of empirical research in the field of legitimacy and criminal justice.

2. DEFINING LEGITIMACY

   Tyler et al. follow Zelditch in characterizing authority as legitimate when people "believe that the decisions made and rules enacted by that authority or institution are in some way 'right' or 'proper' and ought to be followed." (16) This definition assumes that the concept of legitimacy principally focuses upon the reactions by citizens to the decisions and rules made by an authority. Other social scientists, however, have approached the issue in a slightly different way and have focused on the "right to rule," seen from the standpoint of both citizens and power-holders. (17) These scholars therefore ask what is ultimately a more fundamental question: whether a power-holder is justified in claiming the right to hold power over other citizens (and thus to issue decisions and rules that are binding on them). We believe that focusing on this more fundamental question is the right approach.

   Among formal definitions of legitimacy within the right to rule tradition, the following concise statement by Jean-Marc Coicaud has, in our view, much to commend it: "Legitimacy is the recognition of the right to govern. In this regard, it tries to offer a solution to a fundamental political problem, which consists in justifying simultaneously political power and obedience." (18) This definition has three important features. First, it emphasizes...