Abstract
To have any real effect a law that seeks to alter behaviour must be used by its addressees to guide their conduct on their own initiative. If no one were influenced by a law except after the fact — when required to pay compensation for its breach — it would prove effectively impotent, for litigation — a time-consuming, costly and idiosyncratic method of enforcement — is unsuitable to ensure systematic compliance, and the sheer volume of actions would choke the enforcement machinery. The reasons why people obey laws is a large question which has received a great deal of speculation and insufficient empirical research,1 and about which it is not proposed to theorise here. Without denigrating the importance of any number of other factors, one clearly vital consideration is the threat of sanction, the deterrent effect that shapes behaviour by making compliance more attractive than the financial costs or physical and psychological punishment that follows upon noncompliance.2 Although countervailing factors pointing in the direction of immobility or active resistance may carry the day in particular instances,3* in principle a reforming statute should contain credible sanctions, readily capable of being invoked and carrying sufficient sting to stimulate its addressees to obedience. These postulates about remedies — a small sub-set of the general problem of the dynamics of legal compliance — form the criteria by which the provisions of the Act discussed in this chapter will be evaluated.
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Notes
E.g. the materials collected in L. Friedman and S. Macaulay, Law and the Behavioural Sciences (Bobbs-Merrill, 2nd edn, 1977) chap. 3B
several of the essays in J. Pennock and J. Chapman (eds), Nomos XV — The Limits of Law (Lieber-Atherton, 1974); and many of the articles in Issue No. 2 of J. Soc. Iss. (1971).
On deterrence see F. Zimring and G. Hawkins, Deterrence: The Legal Threat in Crime Control (Chicago U.P., 1973), and their article in J. Soc. Iss., op. cit.; and several articles by the Norwegian scholar J. Andeneas, particularly ‘The General Preventive Effects of Punishment’, 114 U. Pa. L. Rev.949 (1966) and ‘The Morality of Deterrence’, 37 U. Chi. L. Rev. 649 (1970).
Perhaps — systematic empirical data are lacking — the most important sources of successful resistance are communal, as where a cohesive group — trade unionists, white Southerners, or nationals of a country occupied by foreigners — see the law as an imposition of the fiat of outsiders; and moral, as where users of cannabis see prohibition of its use as part of a broader attack on their way of life, or objectionable in principle. Ignorance or lack of familiarity with the legal process on the part of the protected class may also make a law ineffective even without active opposition, e.g. Aubert, ‘Some Social Functions of Legislation’, in V. Aubert (ed.) Sociology of Law (Penguin Books, 1969) chap. 11.
F. Lawson, Remedies of English Law (Penguin Books, 1972) passim.
I draw here particularly on the excellent article by Chayes, ‘The Role of the Judge in Public Law Litigation’, 89 Harv. L. Rev. 1281 (1976).
See also D. Horowitz, The Courts and Social Policy (Brookings Institution, 1977).
Commentators adopt the same perspective and reach the same conclusion. See A. Ogus, The Law of Damages (Butterworth, 1973) pp. 32–4
H. Street, Principles of the Law of Damages (Sweet & Maxwell, 1962) pp. 34–6.
Cf. O. Kahn-Freund, Labour and the Law (Stevens, 2nd edn, 1977) pp. 1–2, who attributes the ‘infinitestimal’ contribution of the common law to good labour relations, and its recurrent harmful forays in that area, to its individualistic orientation.
The point is well made in an otherwise rather overwrought essay by Tay, ‘Law, the Citizen and the State’, in E. Kamenka et al. (eds) Law and Society: The Crisis in Legalldeals (Edward Arnold, 1978).
See further, Handford, ‘Moral Damage in Germany’, (1978) 27 I.C.L.Q. 849.
See, e.g., the sample of cases reported in CRE, Annual Report 1978 (H.C. 128, 1979), app 11, and the remarks of Ian Macdonald, a barrister active in this area, in Runnymede Seminar, p. 13.
The leading case appears to be Patterson v. Amer. Tobacco Co., 535 F. 2d 257 (4th Circ. 1976). See, further, W. Gould, Black Workers in White Unions (Cornell U.P. 1977) pp. 147–9.
The leading case appears to be Patterson v. Amer. Tobacco Co., 535 F. 2d 257 (4th Circ. 1976). See, further, W. Gould, Black Workers in White Unions (Cornell U.P. 1977) pp. 147–9.
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© 1980 Laurence Lustgarten
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Lustgarten, L. (1980). Individual Remedies. In: Legal Control of Racial Discrimination. Palgrave, London. https://doi.org/10.1007/978-1-349-16439-4_13
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