A long tradition of regulatory research has been interested in asking: What motivates people to comply with the law? A closely related question seeks to address how regulators can best encourage long-term voluntary compliance with their rules and decisions. A debate in the regulatory literature has been between those who suggest compliance is shaped by implementing harsh sanctions and penalties (the deterrence view), and those who believe that gentle persuasion and cooperation works in securing compliance (the accommodative view; see Ayres & Braithwaite 1992).
Research into reactance, however, has shown that the use of threat and legal authority, particularly when perceived as unreasonable, can produce the opposite behavior from that sought; these actions are more likely to result in non-compliance, creative compliance, criminal behavior or overt opposition (e.g. Bardach & Kagan 1982; Fehr & Rockenbach 2003; McBarnet 2003; Murphy 2004; Unnever et al. 2004). A number of researchers have therefore suggested that attitudes and moral obligations, in addition to economic calculations or fear of punishment, are important in explaining compliance behavior and need to be considered when managing and enforcing compliance (Ayres & Braithwaite 1992; Winter & May 2001). The core motivation of the accommodative view is not to punish an evil, but to repair the harm done from non-compliance and to secure future compliance (Black 2001). While research on the effectiveness of this approach is less common than research on the effects of deterrence, there is growing evidence to suggest that cooperative enforcement approaches increase compliance (Scholz 1991; Braithwaite & Makkai 1994; Scholz & Lubell 1998).
According to Tyler (2006), people's compliance behavior is strongly linked to their views about justice and injustice. He suggests that procedural justice plays an important role in people's decisions to comply with rules and regulations. Tyler's theory of compliance is related to the accommodative model of compliance in that it emphasizes persuasion and fair treatment of regulatees during regulatory encounters. It extends the traditional notion of the accommodative model, however, by showing that interpersonal relationships between individuals and authorities are important. Tyler's theory does not rely solely on an instrumental version of cooperation (whereby a person or organization agrees to comply only when they perceive that a positive outcome is likely to result). Rather, his theory proposes that interpersonal relationships and fair treatment by a regulator are more important in nurturing voluntary compliance and deference to rules than a relationships that rely on an instrumental tit-for-tat strategy.
Procedural justice – as defined by both Tyler (2006) and the definition that will be adopted in this study – concerns the perceived fairness of the procedures involved in decision-making and the perceived treatment one receives from the decision-maker. In other words, it relates to how a person may perceive the interpersonal treatment they have received from an authority, regardless of whether the resulting outcome will be favorable or not. Research into the effects of procedural justice has consistently found that people and organizations are much more likely to obey the law and accept decisions made by authorities when they feel that the decision-making procedures are fair, respectful, and impartial (e.g. Winter & May 2001; Murphy 2005a; Tyler 2006). They are also more likely to report wrongdoing to an authority that has treated them fairly (Feldman & Lobel 2008).
Procedural justice has been hypothesized to be so effective in shaping compliance behavior because it increases the perceived legitimacy of an authority (Tyler 1997). Studies have shown that people who feel they have been fairly treated by an authority regard its authority status as more legitimate; and this has been found to be so regardless of the decision outcome (see Tyler 1997; Clawson et al. 2001; Reisig et al. 2007). Legitimacy in the procedural justice literature has usually been defined as the belief that authorities do their job well and are entitled to be obeyed. In other words, it is a judgment people make about the status of the organization itself as a legitimate authority. People feel that they ought to defer to legitimate decisions and rules, and follow them voluntarily out of obligation rather than out of fear of punishment or anticipation of reward (see also Black 2008).
Legitimacy of authority versus legitimacy of law
Political scientists often take a much broader view of legitimacy than has been studied to date in the procedural justice literature. For example, a number of political theorists have defined legitimacy as the belief within members of society that there are adequate reasons to voluntarily obey the commands of authorities (Easton 1958; Gerstein 1970; Lake 2006). We suggest that one of these “adequate reasons” could in fact refer to judgments about the fairness, validity, or appropriateness of the laws or regulations that an authority is enforcing. In other words, an authority itself may be seen to have legitimate authority, but the rules and laws it tries to enforce may be seen to be illegitimate. We argue that the distinction between the legitimacy of an authority (as usually defined in the procedural justice literature) and the legitimacy of the laws that an authority enforces is conceptually important, and should be considered in procedural justice research. We suggest that an equally important matter is whether procedurally fair treatment can be used to encourage cooperation and compliance with the law when people question the legitimacy of the rules or laws they are asked to obey.
This alternative conceptualization of legitimacy also involves a consideration of the relationship of those rules and laws to a person's moral or ethical values. We suggest that the rules and laws of an authority gain legitimacy when they are consistent with people's moral values, and if one's personal values are consistent with the law, cooperation and compliance will be voluntarily extended (see also McGraw & Scholz 1991; Burby & Paterson 1993; Levi 1997). Skitka (2002) has also found that deeply held moral beliefs can be more accurate than procedural fairness judgments in predicting acceptance of authority decisions that have threatened one's moral views. Hence, just as values can coincide with the law, so too can law be undermined by contrary values (Tyler & Darley 2000).
Some procedural justice theorists have also argued that procedural justice is inherently intertwined with acting in ways consistent with “ethicality”– the consistency of procedures with people's “moral and ethical values” (Leventhal 1980, p. 45). However, while Leventhal (1980) included consistency with ethical values as an attribute of a just procedure, researchers have generally not considered people's views about the morality of the laws or regulations themselves as being linked to evaluations of the justice of the procedure by which authority is exercised. Discussions on procedural justice usually separate compliance that flows from legitimacy, which is based upon procedural justice, from compliance based upon the congruence of rules or decisions with one's moral values (Tyler & Darley 2000). Given no studies have yet attempted to systematically examine whether procedural justice can be used to encourage voluntary compliance in situations where the law is at odds with people's moral values, the aim of the present study will be to explore this issue.
Will procedural justice be more or less effective in such a situation?
Valerie Braithwaite's (2003) theory of social distancing may offer a useful theoretical framework for predicting how procedural justice may influence compliance behavior when people question the legitimacy of the laws they are being asked to obey. The OECD and a number of tax authorities around the world have incorporated Braithwaite's theoretical framework into their regulatory compliance models as a means to understand compliance actions of taxpayers and for determining effective regulatory responses to compliance behavior (see Australian Taxation Office 1998; Hamilton 2003; New Zealand Inland Revenue 2001; UK Inland Revenue 2001, 2002). A growing number of researchers have also begun to explore how Braithwaite's theory may contribute to our understanding of regulatory processes (see Harris & McCrae 2005; Murphy 2005b; Braithwaite et al. 2007; Hartner et al. 2008). While empirical evidence supporting Braithwaite's theory of social distancing is still in its infancy, we believe it is a theory that offers some merit for further empirical examination.
Braithwaite (2003) argues that individuals evaluate authorities in terms of what they stand for and how they perform, and that as such evaluations are made, revised, and shared with others over time, people develop a position in relation to the authority. A concept central to such positioning is social distance, which, as was originally conceived by Bogardus (1928), refers to the degree that individuals (or groups) have positive feelings for other individuals or groups and ascribe status to them. In the regulatory context, social distance relates to the liking one has for a regulator and the ascription of status to that regulatory authority. When people or groups decide how much they want to align themselves and be associated with an authority, or how much they want to remain at a distance from that authority, they are indicating the social distance they wish to place between themselves and the regulator.1
Braithwaite (2003) goes on to suggest that the social distance a regulatee places between themselves and an authority may be intuitive at first, but does not remain so for long. It is argued that individuals go on to articulate their beliefs, develop rationalizations for their feelings, and use values and ideologies to justify the way they position themselves in relation to the authority (Sykes & Matza 1957; Thurman et al. 1984; Bersoff 1999). These beliefs and attitudes are what Braithwaite calls motivational postures.
In the context of taxation, for example, posturing captures the manner in which taxpayers see themselves as they relate to the tax system and the tax authority, and particularly the amount of social distance they wish to place between themselves and the tax authority. Braithwaite (1995, 2003) has shown that people can adopt several different motivational postures toward an authority. These postures are commitment, capitulation, resistance, and disengagement.2 The two postures that reflect an overall positive orientation to authority are commitment and capitulation. Commitment reflects beliefs about the desirability of a regulatory system and feelings of moral obligation to act in the interest of the collective and to obey the law with goodwill. Capitulation reflects acceptance of a regulator as an authority entitled to be obeyed. Those who adopt a posture of commitment or capitulation therefore place less social distance between themselves and the regulator and, according to Braithwaite (2003), are more inclined to comply with the law. Those who adopt a resistant or disengaged posture, in contrast, place greater social distance between themselves and the regulator, and have been shown to be less compliant with the law. Resistance reflects doubts about whether the regulator will act appropriately in any given circumstance, and provides the rhetoric for calling on others to be watchful, to fight for their rights, and to curb a regulator's power. Finally, disengagement also communicates resistance, but it goes further as individuals adopting such a posture have moved beyond seeing any point in challenging authorities. The main objective of the disengaged is to keep both socially distant and to be blocked from view. In a sense, they have decided to step outside of the system.
Braithwaite (2003) further argues that how people are treated by regulatory authorities during an encounter can change their motivational postures in either a positive or negative manner. Tyler (2006) argues that procedurally fair treatment conveys status and communicates to people that they are valued members of society. We argue that harsh and insensitive treatment from an authority during an encounter is therefore likely to encourage further distancing between the two sides because regulatees see themselves as undervalued citizens. In fact, some criminological research has shown that regulators are more likely to use harsh punishment and enforcement strategies with people who have lower standing in the community, or who have weaker ties to the regulator (Black 1976; Kruttschnitt 1980; Grabosky & Braithwaite 1986). Braithwaite argues that if regulators are prepared to first engage in dialogue and fair treatment with those they regulate, then this will serve to encourage a more committed posture by the regulatee. We argue this occurs because people are more concerned with the treatment they receive from an authority than with the outcomes they may receive. In other words, procedural justice may be so effective at nurturing compliance because it serves to reduce the social distance individuals place between themselves and authorities.
Empirical evidence to suggest that procedural justice can in fact reduce or change the social distance between a regulatee and regulator comes from a study conducted by Murphy (2005b). Using panel data obtained from a group of tax offenders, Murphy (2005b) found that resistance levels reduced over time if tax offenders had perceived their treatment by the tax authority over the previous two years to be procedurally fair. In another recently published study, Hartner et al. (2008) also found that procedural justice was related to taxpayers' motivational postures. Taxpayers who felt they had received procedural justice from the tax authority were more likely to adopt postures of commitment and capitulation, whereas those who felt they had received procedural injustice were more likely to adopt postures of resistance and disengagement. Taken together, these findings add support to the suggestion that social distancing theory offers a useful framework in which to make predictions about the present study.
In utilizing this theoretical approach to predict how people may respond in our study, we suggest that procedural justice may be particularly effective at nurturing compliance-related behaviors among those who question the legitimacy of the law because this group places greater social distance between themselves and the regulator than those who do not question the law. Procedural justice is more likely to change their posture of disengagement or resistance to one of commitment, thereby in turn influencing their subsequent compliance behavior. In contrast, people who view the law as more legitimate to begin with will be more likely to comply with the law regardless of what treatment they receive. Given they are likely to be more committed to the system to begin with, procedural justice will be less likely to change their stance toward the authority.