Portal de Periódicos da CAPES

Problematizing Legitimacy and Authority in Law & Policy

2008; Wiley; Volume: 30; Issue: 1 Linguagem: Inglês

10.1111/j.1467-9930.2008.00267.x

1467-9930

Fiona Haines, Nancy E. Reichman, Colin Scott,

Public Policy and Administration Research

Law & Policy Quarterly first appeared in 1979 as a journal devoted to interdisciplinary research on the role of law in policy processes. Over the last thirty years changes in policy instruments and institutions, and in ways of thinking about them, have put pressure on accepted meanings of both terms “law” and “policy” and raised new challenges in terms both of methods for investigating the phenomena and theoretical tools for understanding them. As Law & Policy publishes the first issue of its thirtieth volume, and with a new editorial team, it is a fitting time to evaluate some of the achievements of the journal and to suggest future directions in light of the intellectual and policy concerns of academics and practitioners today. Taken together, the articles published throughout Law & Policy's thirty-year history have explored the complex relationship between legal processes and individual and organizational responses to them, as well as individual and organizational attempts to influence both policy and law. In short, the articles published in the journal have often understood both law and policy as contextual, contingent, contested, and often ambiguous in terms of the mismatch (either accidental or intentional) between explicit policy intent and actual policy achievement. The journal's most popular articles often are those that reflect this complexity within an accessible framework. Prominent examples here include Errol Meidinger's 1987 contribution “Regulatory Culture: A Theoretical Outline,” and Neil Gunningham and Joe Rees's (1998) seminal “Industry Self-Regulation: An Institutional Perspective” published a decade later. A special issue in 1993 on business responses to regulation has been extremely influential in shaping research on regulation within regulated organizations (Sorensen and Hutter 1993). Thus has Law & Policy, in organic fashion, grown from its initial territory—using social science methods to interrogate official legal processes—increasingly to reflect not only on the official or governmental institutions of law and policy, but also on the refraction of law and policy in the behavior of individual and organizational actors who interact with those institutions. When Law & Policy Quarterly was established in 1979 the editors, Larry J. Cohen and John A. Gardiner, set out, in what would now be called a mission statement, their aims for the new journal. Law & Policy Quarterly was to provide a forum for publication of articles that “critically analyze the role of law in the policy process” (1979: 3). They expected such articles to be both interdisciplinary and methodologically rigorous. “Quality empirical research is informed by theory” the first editors noted, an assumption that has been sustained through each of the succeeding editorial teams of the journal (ibid.). The research published in the first volume focused on official legal processes, particularly within the criminal justice system. A number of articles examine policing, judges, and courts, with a particular focus on the death penalty, and on compensation for victims of violent crime. The only article in volume 1 with an explicit focus on regulation, which subsequently became a core interest for articles in the journal, was Charles V. Stewart's“Self-Conscious Interest and the Democratic Process: The Case of Citizens, Regulatory Agencies and the Federal Courts” (1979), but even this is substantially an evaluation of the role of the courts. However, as early as volume 2 the editors made a decisive move away from the emphasis on official legal processes, toward a problematization of the role and effects of law in society more generally. A special issue on the relationship between penalties and incentives set forth a new agenda (Brigham and Brown 1980). Already, in 1980, a detectable shift toward noncoercive mechanisms for steering human behavior had established itself as a core theme in articles in the journal. The emergence of research on activities within regulatory bureaucracies was crystallized in a special issue in 1983 entitled “Perspectives on Regulation: Law, Discretion, and Bureaucratic Behavior” (Hawkins and Thomas 1983). The title change for the journal and the inauguration of a joint venture in publishing between the Baldy Center for Law and Social Policy and Blackwell in 1984 (which continues to this day) was marked by a special issue, entitled “Law and the Automobile” (Ross 1984), that exemplified the range of Law & Policy's substantive and theoretical focus. That issue included, among others, an ethnography of bar settings (Gusfield, Rasmussen and Kotarba 1984) an assessment of the effect of curfew laws on motor vehicle crashes (Preusser et al. 1984) and, reflecting Law & Policy's international focus, a consideration of impaired driving in Norway and Sweden (Snortum 1984). John T. Scholz's (1984) much-cited article “Voluntary Compliance and Regulatory Enforcement” was published in the same year. Through the 1980s, articles in the journal continued to question both the role of law and its impact. Scholars interrogated the use of litigation to effect social change in areas of poverty (Meeker, Dombrink and Song 1987), voting rights (Grofman, Migalski and Noviello 1985), and pollution control (Meidinger 1985), among others. Alternatives to formal law, including mediation (Silbey and Merry 1986), the use of special masters (Levine 1986), and victim compensation strategies (Marcus 1986) came under scrutiny in the journal as well. The study of a variety of forms of white collar crime made their appearance during this decade. Most noteworthy during this period was the consolidation of the journal's commitment to the socio-legal study of administrative agencies, including attention to the way regulated entities experienced and made sense of the mechanisms designed to regulate their conduct. A key example of this scholarship, from the early 1990s is the study by Edelman et al. (1991) of the contextual determinants of compliance behavior of affirmative action officers within regulated organizations. Articles that appeared in the last decade of the twentieth century explored the plurality of legal forms and processes and raised new and important issues about why people and organizations comply with and violate the law. For some the concern was structural: which mechanisms work best under what kinds of legal regimes (Kagan 1989)? What are the structures of resistance and rebellion (ibid.)? For others, the focus was on the social-psychological aspects of compliance (Barnes 1990). Julia Black's influential 1997 article, “New Institutionalism and Naturalism in Socio-Legal Analysis,” built upon a foundation of law and policy research that looked beyond official legal form to chart an agenda for law and policy scholarship in the last decade of the twentieth century. She asked, if decision making in legal contexts is contextual, determined by bureaucratic norms, political and economic pressures, among other things, what role does law play and is law altered by the decisions that are made? Franco Furger's (1999) article “Accountability and Systems of Self-Governance” extended the call to action by asking scholars to look beyond the state to the systems of private accountability that compete with law to manage social risk. Scholars responded. Regulatory scholarship has moved beyond the study of administrative agencies to include the politics and process of responsive regulation, reflexive regulation, and enforced self-regulation, reflecting a concern for the construction of legality by regulated actors. A special issue of the journal addressed some of the approaches developed in research on regulation to issues of tax compliance (Braithwaite 2007). The call to consider the mix of public and private mechanisms for accountability was taken up in a number of articles in the 1990s and in a special issue devoted to public and private audit processes in 2003 (Courville, Parker and Watchirs 2003). External drivers for change in the relationship between law and policy are reflected in articles and special issues examining implications of technological change, for example in the legal system (Wiggins 2006), and also for the role of law in development (Bagchi-Sen and Ghosh 2005). The plurality of concerns in researching and reporting linkages between law and policy should not disguise the continuing importance of more traditional concerns with official legal processes and the effectiveness of law. Recent articles have addressed the impact of corporate criminal liability (Almond 2007), agenda formation in the Supreme Court (Hurwitz 2006), the impact and effect of different forms of evidence in litigation (Edmond and Mercer 2004), and lay participation in the justice system (Hans 2003) to name only a few. Methodological rigor has been a trademark of the journal. From its very beginnings, readers of any one issue of the journal have confronted a mixture of theoretically informed methodologies; no particular methodological approach dominates. In the pages of the journal one finds studies using data that are quantitative or qualitative, contemporary or historical. The analyses may be inductive or deductive, so-called normal science or anything but. Journal editors recognized that as scholars moved beyond the study of official law and began to map the nooks and crannies of regulatory space a greater tolerance for methodological pluralism was required. The current editorial team intends to continue that tradition. Over its thirty-year history, the journal has mapped out a complex and often uneasy relationship with policy. Early volumes included a combined emphasis on empirical research, review essay, polemic and “interchange,” either commentary on one or more articles in the particular volume or an intelligent reflection on a particular policy issue of legal concern. The innovative form of the journal reflected the needs and freedoms within both the academic and policy community, arguably a kinder economic and political climate towards universities where genuine dialogue and reciprocity between academics and policymakers was both valued and reasonably robust. A greater level of managerial control (in terms of what constituted academic “work”) and increased levels of concern with political legitimacy by the political elite may have been part of the reason why the journal in the mid 1980s took on a more traditional format, with fewer contributions from policymakers and the disappearance of the “interchange” segment of the journal. Perhaps it is possible to see the signs of change and cause for cautious optimism. One of the earliest contributors, John Schmidhauser (1979), Emeritus Professor of Political Science at the University of Southern California and Democratic Congressman for Ohio in the 1960s recently was quoted in the “Hedgehog Blog” (a U.S. political blog site) for a letter he wrote to the Los Angeles Times in 2005. The current editors hope that our editorship will kindle the fire of debate about critical legal and policy concerns of our day, both in the pages of the journal and in cyberspace. Paradoxically, however, the shift of the journal toward a more traditional format brought with it a treasure trove of now classic articles that took both a critical and reflective stance toward policy, law, and social control; all developed themes of contemporary significance. Albert Matheny and Bruce Williams's (1984) skeptical analysis of the Reagan administration's “regulatory reform” of OSHA's cancer policy artfully demonstrates the ideologically contested nature of much regulatory policymaking, including “new regulatory techniques.”Susan Silbey and Egon Bittner (1983) exposed the long-standing “problem-solving” orientation of regulatory enforcement in which disparate laws are used as a means to a policy end and for satisficing solutions that enable the maintenance of key relations within a policy community. Their work shows that problem-oriented public service work has long been a key element of regulatory enforcement (cf. Sparrow 2000). Barbara Ann Stolz's work teasing out the politics of capital punishment legislation is salutary reading for any who would see regulation and policymaking as purely an instrumental and strategically rational endeavor (1983). Finally, Keith Hawkins's (1983) well-known work on pollution control and Gusfield et al.'s (1984) ethnographies demonstrate the value of careful observation. Both articles, in very different contexts, point to the way the norms of human and institutional relationships shape the impact of law—in the one case by providing a backdrop of authority and legitimacy, and the other where legal controls on drunk driving are shown as mediated by the culture of the barroom and, in turn, the care (and economic interest) of the bartender in his or her relationship with their patrons. Throughout its history, the journal has addressed a key concern within policy circles: what works, broadly defined? In doing so, authors have been careful to avoid the dangers of mindless empiricism and assumption about instrumental rationality, indeed, often highlighting the complexity of the questions being asked. In the area of criminal justice, scholars have taken on the issues of youth courts (Acker et al. 2001), drug courts (Goldkamp et al. 2001; Granfield, Eby and Brewster 1998; Olson et al. 2001), in-prison treatment programs (McCollister et al. 2003), and community policing (Kessler and Borella 1997) to name only a few. In the field of regulation, strategies such as performance-based regulation (May 2003), including various forms of audits, have come under scrutiny. Special issues and minisymposia have been devoted to topics such as HIV-AIDS policy (Musheno 1994), sentencing reform (Shane-DuBow 1998), the regulation of online investment (Kingsford Smith and Bradley 2004), family law and policy (Barlow and Probert 2004), technology in the courtroom (Wiggins 2006), technology and development (Bagchi-Sen and Ghosh 2005), toxic torts and environmental justice (Kroll-Smith and Westervelt 2004), and school violence (O'Donnell 2001). The problematic authority of policy research itself has been the subject of debate within the pages of the journal. As early as 1988, a special issue on socio-legal research was devoted to articles that “critically assess the relationship between socio-legal research and the policy process” (Gessner and Thomas 1988: 85). Included among the articles was Rick Lempert's (1988) “Between Cup and Lip,” an assessment of how social science research comes to influence policy process, Hawkins and Harris's (1988) analysis of the pressures that modes of research funding place on socio-legal funding, and Sarat and Silbey's (1988) influential “Pull of the Policy Audience,” that challenges scholars to interrogate the premises that inform policy debates, a process that requires more reflection about the researcher's location in the policy process and a more thoroughgoing critique of policy authority. We note, here, that as the journal has increased its attention to activities beyond official law, it has not kept pace with the kind of reflection about the often uneasy relationship between research and policy that dominated socio-legal studies in the 1980s. The fragmentation of authority that recent Law & Policy articles describe places the issues of policy authority in a different light. How do authoritative elites construe what is normal and expected (i.e., Lukes (1974) “third dimension of power”) in the interstitial places of contemporary regulatory regimes where authority is delegated across different, often private, institutional arrangements? What does a challenge to policy entail within contested ground? Here, as in so many other areas, particular national contexts and particular policy arenas may yield very different conclusions. We encourage more of the kind of reflection represented in the special issues described above. A particular strength of Law & Policy in tackling such challenging questions lies in the broad geographic spread of research published in its pages. The internationalization of the journal, and shift away from its early emphasis on experience in the United States, has created a forum for developing and testing hypotheses the relevance of which is not limited to particular jurisdictions. This geographic spread includes work from industrialized settings of the United Kingdom and Europe, Japan, Israel, Canada, and Australia to industrializing contexts of South Asia and Africa. The international focus of the journal has been comparative, locally informed, and transnational in approach. A special issue comparing the national regulatory styles of the United States and Japan illustrates the best of the comparative focus. According to Robert Kagan, editor of the issue, the articles reinforce the image of American adversarialism and Japanese cooperation, and offer evidence for the efficiency and economy of the latter (2000). Studies of minority rights in China (Sautman 1999), sustainable development in Brazil (Little 2005), women's achievements in Africa (Nnaemeka 1996), EU biopiracy policy (Cloatre 2006), and the use of ombudsmen in the Netherlands (Hertogh) challenge conventional understandings of law and its alternatives grounded in the U.S. and UK experience. To the extent that the journal has published scholarship on supranational or transnational governance, it has focused more on the compliance behavior of those regulated by international maritime treaties, the Montreal Protocol and, to a lesser extent, the delegation of standard setting and rule making to private transnational organizations. Surprisingly absent from the pages of the journal is scholarship about the formal supranational organizations such as the United Nations, World Trade Organization, Organization for Economic Cooperation and Development, International Labor Organization. Clearly the international focus of the journal is a trend we wish to encourage, with more investigation present within the pages of the journal of intergovernmental organizations and emergent supranational nongovernmental governance. An underlying premise of the past and current editorial leadership of Law & Policy is that no simple public/private or state/non-state distinction is sustainable as a basis for delineating the journal's fields of interest. Given our understanding of the importance of informal governance within public and private bureaucracies, and within societies more generally, what counts as “public” in some sense is no longer, if it ever was, the exclusive monopoly of state bodies. This intellectual trend does not necessitate the exclusion of the role of the state within public policy processes. Rather it represents a more pluralistic way of thinking about law and policy, where, in neither case, is the making or implementation of policy exclusively within the control of governmental organizations. The pluralistic approach to law and policy, represented within the pages of this journal, begs questions that require increased attention over future years. If the capacity for shaping law and policy has become (or always was) dispersed, this raises practical and theoretical questions about the nature of authority in contemporary society. Authority to make rules for social and economic behavior is located not only within central state institutions, but also within local and community bodies, within firms, within supranational and transnational governmental bodies and within nongovernmental organizations at both the national and supranational level. Distinct from the authority to set norms, is the authority to implement or enforce them. Under what conditions is such authority assumed or delegated? What distinguishes effective from ineffective assertion of authority? To what extent is the exercise of authority dependent on formal law, and to what extent are alternatives to law underpinning contemporary exercise of authority? There are related, but distinctive, normative questions that concern the sources of legitimacy for this fragmented pattern for making and implementing norms in contemporary societies. Clearly, legitimacy historically has been associated (in part at least) with legality. Yet the definition of what constitutes legality and what constitutes legitimate enforcement of law has always been understood within Law & Policy (as often in academic and policy circles more generally) as complex and contested. Many articles within the journal point to the problem of legitimacy when law is weak, when it is developed for one purpose and used for another, or when it is mediated by cultural perceptions of the “worthiness” of the claim. What, however, provides the source of legitimacy when the law (weak as it is) does not apply? There are some hints within the pages of the journal. What is found is the strong connection between what might be termed normatively appropriate behavior and the conferring of legitimacy. So, when conduct is consistent with normative expectations within the flow of things (Hawkins 1983), then it is accepted. Challenges to norms bring challenges to legitimacy. This should not be read, however, as meaning that norms are static. Clearly, norms are affected by both economic and political changes in circumstance as well as changing forms of cultural pressure (Gusfield et al. 1984; Silbey and Merry 1986). Further, as Meidinger (1987) points out, within any regulatory context are communities replete with competing definitions of what is and what is not “normal,”“expected,” or “desirable.” Part of the regulatory terrain within an international context includes strategic use of law: state-based and/or supranational (for example, the Alien Torts Claims Act in the U.S. and European law), as well as multiple methods for claiming authority and thus a legitimate right to act. The issues of the provision of tangible rewards as conferring legitimacy, as well as the need to provide assurance and meaning as well as competence all have relevance to the extra-legal context. Issues of legitimacy invite further exploration. Works that tease out the various audiences for legal, regulatory, and policy reform more generally, and the implications this holds for “legitimate” attempts at reform, would be most welcome within the pages of Law & Policy. Barbara Stolz's (2007) work provides one example of this. Future articles might address, for example, the way particular reforms are seen as legitimate by one audience, such as the voting public, or perhaps particular audiences in the international arena and yet fail to gain traction on the ground with the regulated entity. The reverse is also possible with reforms or policy initiatives making effective changes to ameliorate social problems and yet being seen as “illegitimate” by other stakeholders. This is fertile terrain indeed with multiple theoretical perspectives possible, including (but not limited to) neoinstitutionalism in its various guises, Habermassian concerns with communication and social-psychological concerns with “just processes.” The rich heritage of Law & Policy highlights the strengths of multidisciplinary, theoretically informed, and empirically grounded scholarship. The foundation set by the journal offers contributors and readers multiple paths for traversing the field of law and policy, both in terms of drawing on existing volumes and in setting the directions for future contributions. One path, originally framed by traditional policy concerns about law's effectiveness, rests on an uneasy foundation where the very meanings of law, policy, and the relationship between them are highly problematic. Another path takes readers outside the boundaries of traditional legal scholarship to private places where governance happens. Yet another remains anchored in the traditional concerns found in the earliest volumes of the journal. All have their place. Whatever path is either chosen or forged by our contributors, we see concerns of authority and legitimacy as areas ripe for further research. In the coming decades, we look forward to a vibrant debate within the pages of the journal where the challenges set by an increasingly contested and complex governance terrain can be explored and analyzed together with the mapping out of future directions for research, policy, theory, and practice. The Editors