Most policies in our legal system are founded on an instrumentalist approach to human behavior: our systems are set up to encourage individuals through rewards and to deter people through the threat of punishment. Our criminal justice system, for example, relies upon punishment and deterrence in order to achieve compliance with the law.
In their article “The Mystique of Instrumentalism”, Tom Tyler and Lindsay Rankin take a position against instrumentalism in the law, appealing to empirical data in arguing that a values-based approach would be far more effective in ensuring that individuals comply with the law.
Tyler and Rankin begin their article by examining the current predominant approach our legal system takes to ensuring compliance: deterrence. Under this approach, the law is enforced primarily by creating a risk of punishment for those who break the law. Underlying deterrence policy is the assumption that individuals engage in a rational cost-benefit analysis before engaging in illegal activity, and that this analysis can be influenced by their estimate of the likelihood and/or severity of punishment. In other words, rational self-interest is the motivational engine of deterrence policy.
The problem, according to Tyler and Rankin, is that empirical studies have shown deterrence to be ineffective and tremendously costly to society. Deterrence depends fundamentally on the availability of resources for the monitoring and surveillance that are necessary to catch illegal behavior. Moreover, deterrence’s costs on society can be measured in terms of an exploding prison population, the distrust that surveillance breeds, and the resulting loss of cooperation between communities and law enforcement. These costs are cumulative — prison populations will continue to grow, and the effects on the social climate of groups will only become worse with time.
So what is the alternative? Tyler and Rankin suggest that the answer lies in understanding the distinction between intrinsic and extrinsic motivation. Social psychology theory and studies show that responding to external pressures diminishes an individual’s motivation to engage in or refrain from a particular behavior. Thus, if people comply with the law only in response to coercive power, they will be less likely to obey the law in the future, and their commitment to rules and authorities will wane over time. An alternative is to employ a self-regulatory model that appeals to people’s values — the internalized feelings of ethicality or normative appropriateness that guide people’s behavior. By designing policies that encourage compliance with the law by appealing to people’s sense of legitimacy and morality, government can foster faith in and trust of our legal institutions.
Studies have shown that legitimacy and morality are stronger influences upon compliance with the law than deterrence, and that values perceptions play a larger role in influencing behavioral choices than do risk perceptions. In reacting to different types of conflict resolution in the law, individuals’ decisions of whether to accept decisions made by third-party authorities such as judges depended more on the fairness of the procedure than the outcome itself. Even an adverse outcome is seen as acceptable where the party feels that his views were considered, that his rights were respected, and that he was treated with courtesy and dignity. This holds true even among populations considered to be at risk for criminality; accordingly, the higher the level of coercive power that police display, the less likely targets are to comply.
In other words, the key to ensuring compliance with the law is by enforcing procedural justice and engaging people’s value of legitimacy.
Tyler & Rankin proceed to trace the conflict between the instrumental and values-based approaches through a variety of areas. In the realm of punishment, they argue that citizens’ judgments about the legal system’s legitimacy correlates with recidivism (as measured by records of re-arrest). The current approach toward punishment, however, seems to be ineffective according to this metric: studies have found that severity of punishment is not related to recidivism rates. Rehabilitation, the authors suggest, can offer greater and more consistent success than the current system. By implementing thoughtfully-designed, adequately-funded rehabilitation programs, we can effectively change individuals’ behavior.
Additionally, the field of developmental psychology can be employed to consider how child rearing practices create behavior in individuals, and how those values shape behavior in children and adolescents. Within this area, the research has consistently led two several conclusions:
1) Physical discipline is of very little benefit, and carries a substantial risk of harm in the form of aggression
toward others and antisocial behavior.
2) Building social ties between parents and children, leading to children’s formation of social ties and affection for others, encourages children to internalize social values and feel responsible for behaving in accord with those values.
3) Developing children’s reasoning skills through dialogue and discussion helps their moral values to become more highly advanced, and leads children to engage those values more heavily in guiding their behavior.
Finally, Tyler and Rankin examine coercion and torture as an extension of their general deterrence argument. Here, too, the widespread belief that physical force is an effective mechanism for extracting information from reluctant suspects is belied by the empirical data, which show that techniques involving hostility and force are counterproductive. Rather, research suggests that the creation of a social bond — the development of a human connection — between interrogator and suspect lead to the most successful interrogations. In this way, interrogation is similar to policing in general in that appeals to individuals’ sense of morality and legitimacy yield better results than instrumental approaches.
So, given the empirically-demonstrated failure of instrumental models in the legal system, how is it that these policies persist? Tyler and Rankin hypothesize that the authorities in power have a strong sense of confidence in their own competence, and would not easily yield to a values-based system that places greater reliance on ordinary people’s willingness to act on their own values. According to this theory, the authorities simply prefer to directly apply power themselves to political problems.
Additionally, self-regulatory models require greater long-term planning than do instrumental models. They lack the appeal of the power-based deterrence strategy, which allows authorities to direct policy immediately and without reliance upon participation, deliberation, and consultation. Faced with the failure of their policies, politicians and other agents of the law react by pursuing these policies with greater vigor — for example, increasing the severity of punishment in response to higher crime rates.
Tyler and Rankin recognize that a wholesale switch from instrumental to values-based approaches would be essentially impossible. Instead, they suggest that we promote deterrence AND values — that is, pursue both approaches at the same time. Instead of applying force to everyone, we should begin by appealing to people’s values and only later direct force at the few who are unresponsive to values-based appeals. By gradually shifting the paradigm in this way, they argue, we can increase both the effectiveness and the legitimacy of our legal institutions.