Consequences of Tit‐for‐Tat Enforcement: Toward a Hippocratic Principle of Regulatory Implementation

• Author: Stig S. Gezelius
• Published date: 01 April 2019
• Date: 01 April 2019
• DOI: http://doi.org/10.1111/lapo.12125

Consequences of Tit-for-Tat Enforcement: Toward

a Hippocratic Principle of Regulatory

Implementation

STIG S. GEZELIUS

The article discusses when tit-for-tat enforcement, an important strategy i n responsive regula-

tion theory, may generate intended reactions in communities of regulatees. Combining insights

from compliance motivation theory, responsive regulation theory, and eth nographic studies of

compliance, I hypothesize that tit-for-tat enforcement’s probability of succe ss depends on regu-

lators’ institutionalized capacity to promote law–morality correspondence. Build ing such insti-

tutionalized capacity—so-called “embeddedness”—simultaneously increase s requirements for

inspectorates’ competence. This article addresses three forms of law–morality correspondence :

moral support for the law’s content, the legislator’s authority, and harmony between legal and

moral guilt criteria.

I. THE QUESTION OF CIVIL SOCIETY’S REACTIONS TO REGULATORY ENFORCEMENT

Ayres and Braithwaite’s (1992) model of tit-for-tat (TFT) enforcement is arguably the

most influential model of regulatory enforcement to emerge in recent years (e.g., Nielsen

2006; Nielsen and Parker 2009; Mascini 2013; Parker 2013). This model prescribes

responsive use of so-called enforcement pyramids. Enforcement pyramids are sanction

ladders that have coercion as the last resort. Enforcement always begins at the bottom

(i.e., the largest part) of the pyramid, which typically consists of soft, discursive enforce-

ment styles that appeal to citizens’ social responsibility. If such persuasion fails, inspec-

torates move up the pyramid toward tougher sanctions.

The simple yet powerful insight behind this enforcement model is that public authori-

ties do not inject regulations into moral vacuums: citizens

1

are often compliant when

convinced of the rightfulness of law. The model thus assumes that, in most cases, there

is communicative potential between citizens and inspectorates. Successful communica-

tion motivates citizens to regulate themselves, which yields high compliance at low

public enforcement costs. Correspondingly, unnecessary use of force may provoke resis-

tance. Therefore, enforcement agencies should not undermine communicative potential

I am grateful to the anonymous reviewers and the managing editor for their thorough and constructive

comments. The responsibility for any errors is fully mine. The work was funded by the Research Council of

Norway, Project No. 240153.

Address correspondence to: Stig S. Gezelius, University of Southeast Norway, Department of Business,

History, and Social Sciences, P.O. Box 235, NO-3503 Kongsberg, Norway. Telephone: +47 31009618;

Email: stig.gezelius@usn.no.

LAW & POLICY, Vol. 41, No. 2, April 2019

©2019 The Author

Law & Policy ©2019 The University of Denver/Colorado Seminary

doi: 10.1111/lapo.12125

ISSN 0265-8240

by using force on citizens who are receptive to persuasion (Ayres and Braithwaite 1992;

Braithwaite 2002, 2011).

Ayres and Braithwaite (1992) argue that inspectorates should apply what game theo-

rists call a TFT strategy to enforcement pyramids. TFT enforcement entails that inspec-

torates begin at the bottom of the enforcement pyramid and subsequently respond

similarly to how regulatees respond: when regulatees display willingness to comply,

inspectorates continue using soft responses; when regulatees do not show willingness to

comply, inspectorates move up the pyramid toward tougher responses. Notably, TFT is

not only retaliatory, but also forgiving. Once a reluctant business begins to comply,

inspectors return to a softer, more cooperative response, and inspectorates thereby seek

to use civil society’s self-regulating capacity as much as possible at all times (Ayres and

Braithwaite 1992).

This article discusses how and when TFT applied in enforcement pyramids may pro-

mote willingness in regulatee communities to pursue compliance with legal obligations. I

focus on enforcement systems constructed to prevent acts legally defined as blameworthy,

in contrast to, for example, reward systems constructed to promote acts defined as desir-

able (Braithwaite, Makkai, and Braithwaite 2007; Braithwaite 2008). The article thus con-

tributes to the broader discussion about reactions to violations of legal obligations.

I argue that TFT’s probability of success is greatest when law and civil morality corre-

spond. Consequently, regulators need institutionalized capacity to promote law–

morality correspondence. Such institutionalized capacity simultaneously increases

requirements for inspectorates’ competence.

This article addresses enforcement’s interplay mainly with normative regulators of

behavior. Many studies, covering very different fields of regulation, have shown that civil

morality and civil social control have major effects on regulatory compliance (Kagan and

Scholz 1984; Gray and Scholz 1993; Paternoster and Simpson 1996; Braithwaite 2002;

Kagan, Gunningham, and Thornton 2003; May 2004; Gunningham and Kagan 2005;

Parker 2006; Gezelius and Hauck 2011; Kirchler, Kogler, and Muehlbacher 2014). Simple

utilitarian accounts of compliance, focusing only on actors’ perceived costs and rewards

(e.g., Becker 1968), have mostly been refuted, or at least strongly modified, by empirical

research (e.g., Scholz 1997; Hofmann et al. 2014; Murphy 2016). Even economics has in

recent years acknowledged morality’s effects on behavior (Croson and Konow 2009;

Kogut 2012; Bo

´and Bo

´2014). Rather than being a pure product of utilitarian consider-

ations, regulatory compliance typically stems from a mix of utilitarian and normative

motivations, whereof utilitarian motivations often relate to morality indirectly through

people’s fear of being condemned by peers (Gezelius 2002, 2003). Regulators’ ability to

stimulate, and adapt to, civil morality is thus crucial to their regulatory capacity

(Braithwaite 1989; Ayres and Braithwaite 1992; Gray and Scholz 1993; May 2004).

The regulatory enforcement literature has been concerned with normative compliance

motivations for years. This article adds to that literature by connecting the enforcement

style discourse to the development discourse. Whereas previous literature has used

actor-centered typologies to highlight the motivational characteristics of different types

of individuals (e.g., Hawkins 1984; Kagan and Scholz 1984; Braithwaite, Murphy, and

Reinhart 2007; Murphy 2016), this article uses a state typology to highlight the motiva-

tional characteristics of different types of societies. This article addresses the morality of

compliance, not as personal characteristics, but as collective, cultural phenomena facili-

tated by governance institutions. I argue that different institutional settings foster differ-

ent types of normative compliance motivation, each affecting regulators’ ability to use

TFT enforcement successfully. This argument builds on Gezelius and Hauck’s (2011)

typologies of states and compliance motivations, thus extending their compliance theory

©2019 The Author

Law & Policy ©2019 The University of Denver/Colorado Seminary

Gezelius CONSEQUENCES OF TIT-FOR-TAT ENFORCEMENT 221