How do the courts create popular legitimacy? The role of establishing the truth, punishing justly, and/or acting through just procedures.

• Author: Tyler, Tom R.
• Position: Miscarriages of Justice

When legal authorities evaluate the court, their focus has traditionally been upon the degree to which the courts achieve two distinct objectives: establishing the truth and punishing justly. These two goals are not, of course, unrelated, since establishing the truth is often viewed as a precursor to determining just punishments. A first concern of the system is with using the courts to draw upon investigative reports and evidence presented during trials to establish the facts of the case, that is, to determine as well as possible what actually happened. These facts in turn address the second concern of the courts: justly punishing wrongdoing. Hence, establishing truth and achieving substantive justice in punishment are two goals of the courts and are central to their evaluation by legal authorities and scholars. To determine how well the courts achieve these objectives, scholars examine the frequency of erroneous verdicts (1) and punishments departing from objective standards of substantive justice. (2)

A parallel social science literature considers the role of perceptions--about the degree to which court proceedings establish truth and deliver substantive justice--on public support for the courts. (3) This literature considers the views of members of the public about the frequency of inaccurate verdicts, (4) and the degree to which judicial punishments depart from public perceptions about substantive justice. (5) These public views are then typically connected to the popular legitimacy of the courts. This literature considers the influence of these issues upon public perceptions rather than evaluations of objective reality.

Two models of popular legitimacy are developed and contrasted in this analysis. Their validity is then tested using the results of a national survey of the American public. The first model links popular legitimacy to the attainment of the goals of establishing truth and punishing justly. The courts are expected to be viewed as legitimate to the degree that they achieve these objectives. This goal-based model is contrasted with a second model, one which focuses upon the perceived fairness of court procedures. The second model argues that by exercising legal authority through procedures that people see as fair, the courts gain legitimacy and popular support from the public. This model is based upon the now substantial empirical literature linking popular legitimacy to public judgments about the procedural justice of the courts. (6)

Beyond examining the influence of perceptions of procedural justice on popular legitimacy, this analysis will contrast two arguments about why procedural justice might be important in shaping popular legitimacy. The first argument is that the public views about the use of fair procedures are linked to the attainment of truth and substantive justice. From this perspective people's widely demonstrated interest in the fairness of judicial procedures supports a goal attainment perspective on popular legitimacy. People use information about the fairness of court procedures to estimate the likelihood that the courts have determined the truth and punished justly.

An alternative model suggests that procedural justice is not influential because the public connects the use of fair procedures to the establishment of truth and/or the attainment of substantive justice. Rather, the influence of procedural justice is linked to relational mechanisms linked to the enactment of procedural justice. The relational model argues that people value the use of fair procedures because those procedures carry messages of status and inclusion which reinforce people's identification with legal institutions and authorities and support their feelings of inclusion and status in the community. This then leads to high self-worth and favorable self-esteem. When people can present their concerns to judicial authorities and feel that those authorities consider and take account of their concerns, people's identification with law and legal authorities is strengthened. This is true both when people are in court and when they think about what they think would happen if they were to go to court. This relational influence is distinct from the influence of goal-based judgments on popular legitimacy. In other words, it is not linked to the belief that fair procedures lead to accurate verdicts or just sentences.

In this study these two models--the goal based model and the relational model--are compared using the results of a nationally representative survey of Americans. The results of this comparison suggest substantial support for the relational perspective on popular legitimacy. To some degree court legitimacy is linked to the attainment of truth and the enactment of just punishments and using fair procedures is important because it is viewed as leading to these goals. However, the strongest effect of procedural justice is a direct influence of public views about the procedural justice of the courts upon popular court legitimacy. And further, as would be predicted by a relational model, that influence flows most strongly from the interpersonal component of procedural justice--that is, from judgments about the degree to which courts and judges are trustworthy and feel concern for members of the public--rather than being linked to how fairly the courts are seen as making decisions (i.e., to the degree to which they allow voice and exercise neutrality/impartiality in making decisions).

These findings support a relational perspective on legitimacy and hence suggest the centrality of issues of inclusion and recognition in the relationship between the public and the courts. By recognizing people and their concerns and through being viewed as including the public among those who have status in the eyes of the court, relational links are created and strengthened. These links in turn lead to legitimacy and cooperation, since people are motivated to accept and voluntarily defer to legal authority.

In addition, the courts gain further popular legitimacy when they achieve two key public goals for the courts: determining truth and punishing justly. This study suggests that public beliefs that the courts establish truth and punish justly are both important to legitimacy. Interestingly, these two influences are separate and establishing truth does not build legitimacy because it is viewed as leading to substantive justice. (7) Instead, it does so separately. The results of this study suggest that public views about the degree to which the courts establish truth is the more important factor in shaping legitimacy when compared to how frequently they are viewed as sentencing justly. Further, the goals of truth and substantive justice are linked in the public mind to different aspects of fair procedures. Fair decision making is linked to delivering substantive justice; fair treatment to accuracy in verdicts.

2. SUBSTANTIVE JUSTICE

   Traditionally, treatments of popular reactions to adjudication treat just punishment as the ultimate goal of a trial, with truth being an antecedent to the pursuit of substantive justice. People have a fundamental desire to feel that there is just punishment in response to wrongdoing. (8) A core feature of organized groups is that they create rules and enforce those rules by punishing those who break them. (9) While societies differ widely in what their rules are and in how they punish those who transgress, punishment for rule breaking is central to the maintenance of social order and is found in all societies. (10) The nature of these punishments and when they are enacted is the central focus of the study of retributive justice, which involves the principles defining appropriate punishments for wrongdoing. (11)

   It is a general characteristic of social relationships and organized groups that formal or informal rules develop that define appropriate conduct. When such rules are violated, people feel the need to punish rule violators and this motivation does not only involve those personally harmed by wrongdoing. Studies of retributive justice demonstrate that people are motivated to punish those who break rules and will incur personal costs to uphold social rules, even when they are not the victims of the rule breaking behavior. (12)

   A beginning element in reacting to rule breaking is an effort to restore the prior material balance between people. The simplest way to do so is to right a wrong by compensating the victim(s) for harm done. When people react to rule breaking which is judged to be unintentional or without malice, and where it is possible to do so, people often endorse such an approach to righting wrongs. However, when people are viewed as having deliberately broken rules, either intentionally or because of negligence, their victims and society more generally are found to feel that some type of punishment beyond compensating victims is appropriate. (13) If someone hits a person, they do not just hit them back, they hit them harder, reflecting an additional punishment for rule breaking.

   Studies exploring the nature of the motivation to punish often link punishment to issues of deterrence and incapacitation. (14) It is argued that people punish to prevent future wrongdoing. (15) Other studies suggest that the desire for revenge is a key issue. (16) Recent studies have suggested that, on the contrary, people's primary reason for punishing is to uphold societal values. (17) Rule breaking is viewed as a threat to those values, and appropriate punishment restores the integrity of those values. A consequence of this view is that those people whose actions and demeanor show a defiance of or disrespect for society, social values, and/or the social status of their victims are both more likely to be punished, and likely to be punished more severely. How does this desire to punish wrongdoers relate to the search for truth? In the legal system itself, truth is seen as a precursor to...