3. The Analysis of Trust and Criminal Justice: Between Legitimacy and Order

This book will not discuss in detail the features of each justice model in formal terms; these can be found in Sen (1977). Each model of justice supposes a different principle of authority or way in which it obtains legitimacy. This is clear in the distinction Sen makes between the informational basis of utilitarianism and Rawls’ theory of justice, based on the difference between utility units (allowing full comparability units to aggregated levels), and welfare levels (allowing limited comparability in aggregated terms, but comparisons of ordinal levels/welfare levels). In other words, while utilitarianism has one universal measure to assess utility, the formalisation of Rawls’ model allows comparability based on the categorisation of distribution of “primary goods” (Sen 1977: 1545–7).

The Human Development Index, used by the United Nations, was developed and expanded throughout the world using Sen’s ideas. One of its main indicators is the Sen Index.

Utility as happiness is the classic Benthamite formulation. On the contrary, Sen (1999) notes that utilitarian formulations, such as the model of rational choice, reduce this concept to decisions or choices. Nonetheless, to facilitate discussion and because current trends in research are leading to its operationalisation (Kahneman et al. 2003), this book uses this association between utility and happiness.

The classic examples of strategies based on an increase in risk are those of the situational crime prevention approach. The deterrent effect of high sentences, in particular the death penalty, was supposed to have an effect in the short run. Opportunity costs are generally associated with long-term strategies based on education, training and employment.

For further discussion, see Rock (2007: 16–17) and Cornish and Clarke (1986).

Kaldor-Hicks efficiency is an extension of Pareto efficiency. It is based on the idea that an investment is efficient if it makes someone better off. If someone is worse off as a consequence of the investment; the one who is better off has the ability to theoretically pay their losses. Pareto efficiency is usually referred to as someone becoming better off while no one becomes worse off (Garoupa 2003).

An example of these situations is the starving man who stole apples from a farm. In this case the benefit, the maintenance of life, is greater than the social loss, the apples. The same could be applied to speeding when going to a hospital. However, the Kaldor-Hicks efficiency model implies that the mere possibility of damage restitution allows its moral acceptance.

Sen argues that, although two people may eat the same amount of food, their utility will not be the same if one of them has a stomach-parasitic disease. Utilitarianism, through neglecting the need for interpersonal comparisons, sees both people as enjoying the same utility (Sen 1999: 67–70).

The main indicators derived from the first sweeps of crime surveys in Britain were related to three dimensions: victimisation, police reports and perceptions of crime. As Hough (2007) notes, the objectives were to provide information about crime prevalence and its allocation where and to help reduce misperceptions about crime.

Although the original concern of Birkbeck and LaFree (1993) related to academics that analyzed victimization patterns to search for a match between victim and offender, such as multiple victimization analysis; the use of rational choice strategies is usually accompanied by the identification of possible targeted victims.

Zelditch (2001) notes that the concept of legitimacy can be analysed using two dimensions: first, a model of distributive justice, which Tyler (2006) does not discuss; and second, a theory of authority, which is the focus of Tyler’s work. A development of the social identity theory is the model of system justification theory (Jost et al. 2001) which includes conceptions of unfairness in distributive justice, in order to assess justifications for specified types of apparently non-rational decisions.

This could be done through the exaltation of some of the group’s social features, for instance, showing physical symbols of membership, such as particular clothes, or more subtle symbols, such as a particular way of talking or acquired tastes. On the other hand, groups could enhance categories that enable them to point out that they have a disfavoured position in society, as proposed by the System Justification Theory (Jost et al. 2001).

This is similar to the idea of field proposed by Pierre Bourdieu, although the author distinguishes a set of basic tenets in play in this process of self-recognising and social identity construction.

These inequality structures are based on previous distribution of material and symbolic goods (known as the position in the sphere of production in a Marxist perspective or in social stratification according to Weber) which, by their own relational nature, are dynamic.

This is exemplified by Garland (2002) by the idea of a continuous administration of time, a product of the contingent nature of work and the need to organise life around it in order to maintain lifestyles.

As the authors rightly assert, this involves a decision about what is to be considered just or good (Hough et al. 2010: 2).

The concept of subjective legitimacy proposed by Zelditch (2001) is similar in its content to the concept of trust developed earlier in this chapter.

There are other lines of development of legitimacy theories, such as those which analyse the effect of legitimacy on the stability of informal status orders (see Zelditch 2001).

“Action, especially social action which involves a social relationship may be guided by the belief in the existence of a legitimate order. The probability that action will actually be so governed will be called the ‘validity’ of an order” (Weber 1978: 31).

This argument is similar to the one of Weber (1978) concerning the understanding of the State by the coordinated social action of individuals. Nonetheless, although Weber (1978) analyses the sources and ways of maintaining authority and legitimacy, he does not create a theory of legitimacy with normative content.

One interesting point in Anderson’s proposal is the role of printed literature in the construction of the nation as an imagined community (Anderson 1991).

The iron cage is a concept proposed by Weber, meaning the predominance of procedure in bureaucratic decision-making, losing its connection with human concerns.

This is a difficult challenge for policing in the procedural justice approach. Is policing supposed to control crime or to serve as a social integration barometer?