A [Relational] Theory of Procedure
59 Pages Posted: 24 Jun 2019
Date Written: June 17, 2019
Policymakers continue to grapple with the question of how to maximize the institutional legitimacy of legal dispute resolution procedures. Recently, prominent scholars have begun advocating for a value-based approach to legal regulation, which seeks to maximize voluntary compliance with the law because members of the public believe that legal institutions share their values, rather than out of fear of punishment for failing to comply with legal rules.
Forty years ago, psychologist John Thibaut and law professor Laurens Walker published their influential article on institutional design, 'A Theory of Procedure,' in the California Law Review. Their comprehensive theory contained three arguments. First, the primary aims of legal dispute resolution are to establish factual truth and provide justice to disputants. Second, there are just two fundamental conflicts: “cognitive conflicts” that focus primarily on resolving the truth of a dispute, and “conflicts of interest” that focus primarily on the just allocation of resources between disputants. Third, there are two primary ways to resolve disputes: through an inquisitorial procedure, which prioritizes truth, or through an adversarial procedure, which prioritizes justice. Despite the influence of Thibaut and Walker’s claims, no one has directly tested whether the public perceives the legal system, legal conflicts, and legal procedures in the manner that Thibaut and Walker suggest, and no one has proffered a value-based model of institutional legitimacy based on a test of their theory.
This Article fills that gap by proffering an updated model of institutional legitimacy informed by insights from experimental social psychology. This model’s central feature is relationality — a psychological concept that focuses on the interactive dynamics of societal group members — which manifests itself in the public’s attitudes toward the objectives of different legal conflicts, the priorities of different legal procedures, and the purposes of the law more generally. This Article reports the results from three original psychology experiments that demonstrate that the perceived legitimacy of legal dispute resolution is enhanced when the public perceives an alignment between the goals of a legal dispute and the perceived priorities of the procedure that resolves it. Specifically, decisions from legal tribunals governing disputes low in relationality are legitimized when they are adjudicated through inquisitorial means, and decisions from tribunals governing disputes high in relationality are legitimized when they are subject to adversarial resolution. Far-reaching implications for legal institutional design are discussed.
Keywords: legitimacy, institutional design, procedure, psychology, experiment
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