“The dog that didn’t bark” is one of the major reasons I went through a serious Sherlock Holmes phase in my just pre-teens. The enlightenment that we should pay attention to the hard-to-notice, unobtrusive things and not focus solely on the most visible or available was a good one for someone that age to learn. It would still be nice if social science as a whole learned it rather than simply pursuing the data at hand (or grants), as the famous “Drunkard’s Search” we all learned in methodology classes taught us (and we as a rule have ignored). The unbarking dog, though, was even better than that lesson. The unbarking dog wasn’t just something we should be noticing. It was the answer to the puzzle.
For generations in corrections and sentencing law and policy, we have also overlooked “the dog” way too much, although some of that is changing now. We have theorized on the immediate and personal nature of the offender and offense, although the life-course literature is finally making clear the non-linear nature of most human lives and hopefully taking us to complexity theory where real answers will one day be found. For years and years we focused on why criminal kept recidivating, although now the desistance literature is grabbing more prominence. We played an enormous social experiment by packing as many offenders behind bars as we could, then packing more, dumping any pretense of rehab along the way, and only in the last few years have glommed onto “hey, they’re coming back out.” Most of all, we have shined the spotlight on why people commit crimes, all the factors and contexts (routines) that go into offender and offense. Very few have studied why we don’t.
One of the exceptions to the last is Tom Tyler, who in the early ‘90s wrote Why People Obey the Law. I’ll state it simply to anyone involved in criminal justice or anything involving rules and laws. This book should be one of the first half-dozen anyone serious about corrections or sentencing policy should read. You want to argue, take it somewhere else.
Tyler’s Chicago study (using interviews and surveys of respondents with recent experience with police and judges) compared two perspectives of law and how/why it is obeyed. First, in the normative perspective, he explained, “people will be concerned with whether they receive fair outcomes, arrived at through a fair procedure, rather than with the favorability of outcomes.” He added, “people care about the justice of outcomes (distributive justice) and of the procedures by which they are arrived at (procedural justice).” On the other hand, in the instrumental perspective, “citizens are concerned with winning—that is, with receiving favorable outcomes when dealing with police officers and judges.” Here, “people do not focus directly on the favorability of the outcomes they receive from third parties. Instead, they focus on the degree to which they are able to exert influence over third-party decisions.”
Tyler studied how/why/when respondents linked these perspectives into their personal conceptions of procedural justice. Through his analysis, he concluded that the instrumental (short-term, self-interested) perspectives do not drive most peoples’ views of outcomes most of the time, no matter how much economists and public choice gurus want it to be true. In fact, most behavior toward law is better explained by the normative perspective, which raises the Weberian questions of legitimate authority. He concludes that “People obey the law because they believe that it is proper to do so, they react to their experiences by evaluating their justice or injustice, and in evaluating the justice of their experiences they consider factors unrelated to outcome, such as whether they have had a chance to state their case and been treated with dignity and respect.”
Why bring this up now? Because a revised version of Tyler’s book has just come out, complete with updated research and responses to his earlier work’s critics. Not surprisingly, the research he and colleagues have done sonce has reaffirmed the basic findings and the importance of perceived legitimacy of authority. This shouldn’t be a shock, of course. We know offenders who in some areas besides that of their offense have high moral codes, we know of upright non-offenders who cheat at Scrabble (no names named). Context matters, sure, but why? Because we’re reacting to the perceived fairness of the situation and outcomes. My wife and I used to sit on our porch in WI and rate people on a 1-5 scale for “complete stop at stop sign.” Tyler basically says that, from that, you could still never tell which ones were lawbreakers in other areas. You don’t believe this? You’ve never gone over the speed limit for any reason, right? You have? Then you must be a murderer.
The importance of Tyler’s research should be clear (as he makes obvious in both the original and revision) for those in corrections and sentencing. Perceptions of fairness and unfairness of treatment as well as outcome drive our willingness to obey and disobey the law so consider that at every arrest, charge, and sentencing. Our current system may exacerbate as much as impede future disobedience depending on how offenders and even the victims are treated. This book should be at the right hand of every advocate of victims, restorative justice, and mediation and part of every training manual for cops and correctional officers. It also should direct more and more research to ID applications and misapplications. It should shift the focus away to a greater extent from the usual barking dogs.
If it achieves even half of that, this “dog that didn’t bark” may end up being more famous, and useful, than Holmes’.