Lasswell1967 - The Role of Sanction in Conflict Resolution

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The role of sanction in

conflict resolution
HAROLD D. LASSWELL and RICHARD ARENS
Yale University; McGill University

A contextual approach to the study of norms, and that sanctioning patterns are
sanction maps an important connection be- among the involved in the eventual
norms
tween the behavioral sciences and jurispru- resolution of any conflict.
dence.I Modem jurisprudence is open to
the scientific study of every phase of law Norm, Sanction, Conformity
in society. The problems may be conceived
Conceptions of sanction, though diverse,
from the point of view of a contemplative share a common core of meaning (Arens
spectator of events or of an imaginative and Lasswell, 1961, 1964). A sanction is
manipulator who thinks in terms of postu- perceived as implementing, or failing to
lated goals.2 Although the present discus-
sion will not employ mathematical notation, implement, a social norm. Hence the ques-
tion most commonly raised about an alleged
the categories are defined with the forma-
tion of mathematical models in mind, and sanctioning practice is whether it has af-
with an eye to the choice of operational fected or is capable of affecting the degree
indices that point toward workable pro- of conformity between norm and conduct.
grams of investigation.
Before outlining our theoretical models it
It will be evident from the analysis of the may serve the goal of clarity to distinguish
between conventiond and functional defini-
sanctioning process that conflicts-demands
in a social context that are at least initially tions of terms such as law or sanction. Con-
ventional definitions are the common usages
perceived as opposed-imply prescriptive
in a social context; functional definitions
1
Publications using the jurisprudential ap- serve the purposes of comparative research
proach employed in this discussion include Mc- and analysis. For example, our functional
Dougal and various others (1960, 1961, 1962,
1963), Arens and Lasswell (1961), Dession definition of law refers to &dquo;authoritative and
(1955), Dession and Lasswell (1955). See controlling decisions&dquo; in a specified terri-
especially Lasswell and McDougal (1943), re- torial context. A commitment is &dquo;control-
published in McDougal and Associates (1980).
2 The problem-solving approach performs line when it is expected to be enforced, if
five intellectual tasks: goal clarification; trend challenged, by the use of severe depriva-
description; condition analysis; projection; alter- tions, and when research confirms the ex-
native invention, evaluation, and selection. This
article is chiefly concerned with the analysis of
pectation. A commitment is &dquo;authoritative&dquo;
conditions. For a recent statement see Lasswell when it is made in an appropriate manner
(1964). by those who are regarded as justified in

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28

making it (Lasswell and Kaplan, 1950, ch. is obvious that the study of law deals with
5). institutions; and since the significant out-
The scientific observer who applies a comes are defined as &dquo;decisions,&dquo; the institu-

functional definition must take the respon- tion is specialized to power.


sibility for selecting the minimum frequency The preceding references to sanction have
of coincident expectations to be reached be- implied the position that sanctions occupy
fore a pattern is classed as &dquo;justified.&dquo; The in every authoritative and controlling pre-
description may be refined by stipulating scription. A prescription, if complete, is a
different frequencies for &dquo;elite,&dquo; &dquo;mid-elite,&dquo; pattern of expectation with three compo-
or &dquo;rank-and-file&dquo; members of a body politic. nents : (1) norms, or the standards of con-
Note that the expectation of authoritative- duct permitted, required, or forbidden; (2)
ness carries with it no necessary approval by contingencies, or the factual circumstances
the individuals who entertain the expecta- to which norms apply; (3) sanctions, or the
tion. Respondent X may, for instance, dis- measures employed to encourage conformity
claim any endorsement of the ethics of the or to discourage nonconformity. (These
legal system whose lawfulness he concedes. might be further subdivided into &dquo;sanction
When these distinctions are kept clear, the norms&dquo; and &dquo;sanction contingencies.&dquo;)
interplay of &dquo;law&dquo; and &dquo;rectitude&dquo; is re- Our functional definition of law provides
searchable in concrete situations. the scientific investigator with a tool for
If we begin research on sanctions by examining fundamental questions about any
analyzing the statute book of a given juris- particular community: (1) To what extent
diction, it must not be assumed that the are conventional legal sanctions also sanc-

printed prescriptions are &dquo;laws&dquo; in the func- tions in the functional sense? (2) To what
tional sense. Research is essential to dis- extent are the functional sanctions in a body
cover whether, in the circumstances pre- politic outside the law in the conventional
scribed on the face of the text, the norms sense? Although students of both jurispru- 9

are actually followed (to at least the mini- dence and political theory are concerned
mum degree stipulated by the scientific with the interplay of authority and control
observer). If not, the printed text is a in the world arena, no professional associa-
&dquo;pretended&dquo; law. tion has yet taken responsibility for report-
The previous paragraphs assume that a ing trends in the relative roles of law, naked
useful definition of law includes both sub- power, and pretended power at world, na-
jective events (&dquo;perspectives&dquo;) and be- tional, or subnational levels. In part this
havioral &dquo;operations&dquo;; and the operations absence of self-appraisal reflects the back-
are &dquo;communications&dquo; (sign-symbol patterns) ward state of research on sanction law,
and &dquo;collaborations&dquo; (other movements). If which in turn reflects the confusion of mind
laws were understood to be &dquo;articulated among scholars and scientists.
rules&dquo;-as they have been conceived in The conception of law as decision draws
many schools of jurisprudence-the study a researchable line between outcomes in the
of law would be a branch of linguistics.s social process that are part of the institu-
When law is recognized as a &dquo;practice&dquo; (a tions devoted to power and outcomes be-
pattern of perspectives and operations), it longing to other institutions. Decisions are
3 defined to include outcomes in which ex-
For a glance at traditional approaches, see
Bodenheimer (1962) and Friedrich (1958). pected and enforced sanctions are &dquo;severe.&dquo;

CONFLICT RESOLUTION VOLUME XI NUMBER 1

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29

When the sanctions are &dquo;mild/’ they are spectives prior to, and following, a response
&dquo;choices,&dquo; and are included in economic and are critically important.
other nonpower institutions. The social process model within which
The distinction makes it feasible to classify we are working employs eight categories to
conventional statutes, treaties, and ordi- classifythe outcome events in the continu-
nances, for instance, when properly investi- ing flow of interaction in a given context.
gated, as belonging to the public order or In brief: power, or the giving, receiving,
the civic order of a body politic. A basic withholding, or rejecting of support in a
problem in science and policy is whether decision; enlightenment, or the giving (etc.)
government, conventionally defined, is be- of information; wealth, or the giving (etc.)
coming more or less dependent on power, of claims to the use of resources; well-being,
functionally conceived. As research ex- or the giving (etc.) of claims to safety,

pands in relevance and scope, the changing health, and comfort; skill, or the giving (etc.)
trend of public and civic order can be fol- of opportunities to acquire and exercise
lowed throughout the globe. teachable and learnable operations; affec-
tion, or the giving (etc.) of love or loyalty;
Dynamic Models of Public Order respect, or the giving ( etc. ) of recognition;
Sanctioning Systems rectitude, or the giving ( etc. ) of responsible
As a guide for research and policy dy- conduct. Since one general hypothesis is
namic models are required that purport to that conforming or nonconforming behavior
account for the structural and functional is intelligible in terms of value expectations,
characteristics of public order sanctioning the distinction must be kept between out-
comes as described by the scientific observer
systems. Such models are contributions to
comprehensive explanations of public and and as perceived by actors in a situation.
civic order, and hence to the social process The scientific observer’s functional defini-
as a whole. A sanction model can be con- tions enable him to describe any social situ-
structed to best advantage when the larger ation from a stable point of reference; hence
framework of analysis is kept in mind. The he can attribute likeness or difference to the
social process, for example, is conceived as field of reference rather than to his unstable
follows: human beings striving to maximize definitions.
preferred outcomes (values) through insti- The participants must be characterized
tutioms using resources. for scientific purposes at any cross-section
Several challenges must be met in a sanc- in time-therefore, according to their per-

tioning model. In terms of the categories spectives, and also according to their actual
employed in describing social process, the control over base values. Norm violators
efforts to enforce sanctioning prescriptions may be differentially recruited from elite,
are &dquo;institutional practices&dquo;; so, too, are acts mid-elite, or rank-and-file strata in the con-
of conformity or nonconformity with pre- trol of power, enlightenment, and other
scriptive norms. To explain individual or values in the body politic. Value perspec-
collective practices it is necessary to show tives may be realistic or fantastic, a judg-
that the participants expect to be better off ment that the observer can make in the light
doing what they do than by adopting an of the actual value position of the partici-
alternative response to the situation in which pant, and the impact of the strategy that he
they find themselves. Hence the value per- has employed or is likely to employ. The

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30

situation in which the interactions are studied By a &dquo;precipitating event&dquo; is meant one

may be organized or unorganized. that eventually becomes a topic of conflict


The sanction makers and enforcers must in an arena. A &dquo;parallel event&dquo; is similar to
be analyzed in the same way. If enforce- a precipitating that it is not
event save

ment is expected to be hopeless, base values brought of decision-makers.


to the notice
may not be put at the disposal of public Observe that if research is focused on offi-
authorities in a given jurisdiction; their cial arenas, an important finding may be
strategies will be modified if assets are that certain control arenas forestall submis-
lacking, with resulting impact on outcomes sion to lawful arenas. Observe that the most
and postoutcome effects. direct recipient of a deprivation may be a
It is to be noticed that the responses to masochist who does not resent it and who
be explained in a context are referred to initiates no action. An initiative in charac-
environmental factors and also to predisposi- terizing an occurrence as deprivational may
tions. The latter (P factors) are brought be taken by who believes that he
someone
into the context by the participants; the E saw a murder committed, or property being

factors are occurrences in the situation. For taken from someone else. The self system
convenience, we can relate the deprivational of an individual can be identified with the
sanctioning process activities to the social system of public order; hence an apparent
process as follows: violation is experienced as a deprivation,
I. Pr6af’eoo Events and inaugurates a conflict (a conflict is a
(Deprivational stage) demand that is made on the assumption that
A. Precipitating it is incompatible with the demands of
1. Deprivational occurrences
2. Preparation others).
B. Parallel The term &dquo;preparation&dquo; covers the claims
1. Deprivational occurrences that are made in regard to the deprivation
2. Preparation with the expectation of bringing it to an
II. Arena Events arena. Often this involves direct negotiation
A. Identifying situations that disturb
public order among contending parties and the use of
B. Sanctioning: targets, measures, unofficial mediation, conciliation, or arbitra-
sanctioners tion. In the case of some parallel events
When the social process of any body these activities settle the controversy.
The sanctioning stage includes first all
politic is not entirely politicized, the typical
acts that are involved in identifying situa-
initiating event with which we are con-
cemed is an event that is perceived by at tions that disturb the public order. The
least one participant as a value deprivation, typical arena involved in litigation includes
and takes place outside an arena. An official invoking and applying arenas (terms soon
arena is defined as a situation in which a to be defined); but prescribing, promoting,

conventionally perceived official plays his and intelligence arenas may be heavily im-
formal role. A control arena is defined by plicated also if attempts are made to modify
the scientific observer in functional terms statutory prescriptions. If litigation is en-
to designate situations in which an effective gaged in, the sanctioning stage includes pre-
power holder is a participant; a lawful arena judgment and preverdict activities of deci-
is a situation in which authoritative and sion-makers, and activities during the same
controlling participants are involved. period carried on by claimants. On entry

CONFLICT RESOLUTION VOLUME XI NUMBER 1

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31

into a judicial arena the parties acquire a avoidance of deviation (deprivation) of


formal identity (&dquo;accused,&dquo; &dquo;def endant,&dquo; public and civic order prescriptions.
&dquo;plaintiff’) and typically employ counsel We are in a position at this point to
who phrases the various claims and counter- formulate two fundamental propositions,
claims in terms of authoritative prescrip- one about sanctioning decisions and one

tions. Counsel presents fact form statements about conformity choices. Sanctioning ac-
(testimony) and objects of study (exhibits). tivities and forms rise or fall according to
The second sanctioning stage embraces expectations of net value advantage by the
all commitments regarding targets, mea- largest number of participants who use the
sures, and sanctioners. If a jury and court most base values by the most skillful strat-
are the decision-makers it is clear who the egies to affect sanction decisions, and who
targets of official indulgence or deprivation are predisposed to the sanction response.

are, and what strategic measures are se- Conformity rises or falls according to ex-
lected for the purpose. The identity of the pectatiom of net value advantage by the
final official sanctioners is equally explicit. largest number of participants who use the
But the postdecision effects call for follow- most base values by the most skillful
up researches. Since the second stage covers strategies to affect conformity decisions
all commitments (intelligence, promoting, and choices, and who are predisposed to
etc.), the possibility suggests itself that conformity.
specialized models can be constructed to Schematically the sanctioning model can
cover the following: the interplay of the be outlined as follows for a specified body
several functions m the sanctioning compo- politic. Conformity factors, though not
nent of decision; the interrelations between specified, influence the sanctioning model
the flow of sanctioning deci8iOflS and post- at every step.
decision effects on the social process; the Civic order <- Public order
Participants -4
interconnection between the decisions and sanctioning ( number ) sanctioning
the pre- and co-events that precipitate or (as a whole; (as a whole;
by category) by category)
may precipitate decision (precipitating and ~&horbar; Expectations &horbar;>
parallel, and concurrent events outside of- of net advan-
ficial arenas that influence what occurs in tage ( amount
the arenas, such as gossip at the decision- by value)
makers’ club). <- Base values ....,.
used (amount
Since sanctions are defined to include
by value)
value indulgences as well as deprivations, <&horbar; Skillful strat- ....,.
it may seem odd to speak of the first major egies (most
phase of the deprivational sanctioning proc- benefit at
ess as &dquo;deprivational.&dquo; Acts of conformity
least cost)
to prescription-acts of indulgence-may Consider the indices most pertinent in
be requisites for official rewards. It need various arenas. The following comments
not be misleading, however, to adhere to are suggestive, not exhaustive:

the usage employed here, since the initiative Public order sanctioning. The decision
for a reward rests with officials, and the process can be conveniently described in
basic goal is well understood to be the seven suboutcomes:

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32

( 1) Intelligence, or fact-form statements (5) Applying. Applications are final


about sanctioning activities whose prepara- characterizations of a concrete situation in
tion and dissemination are prescribed by terms of a prescription. Indexed by con-

law. In US society, news in public media victions, acquittals, judgment for plaintiff
receives protection. The flow of statements or defendant.7
can be described by content analysis of (6) Appraising. Aggregate characteriza-
interviews, media, official documents, etc.4 tion of official activities in terms of
policy
(2) Promoting. Demands about sanction- goals and objectives. Indexed by state-
ing are made by various government agen- ments in reports of commissions of inquiry,
cies, political parties, and pressure entities editorial comment, etc.s
(and receive legal protection in the US). (7) Terminating. Repeal of sanctioning
Speeches, party platforms, and resolutions prescriptions and readjustment of particular
can be analyzed to describe the flow of sanctions. Indexed by statutes, parole, com-
demands (see the discussion by Vose, 1958). mutation, reprieve, pardon, cancellation of
(3) Prescribing. Effective prescriptions civil obligation, etc.9
in regard to sanctions are among those Civic order is expressed in policy commit-
ments that are not classified as decisions
passed by constitutional conventions, legis-
latures, and executives. The flow of sanc- since the sanctions are mild. (Obviously
this is according to the definitions adopted
tioning prescription can be described by
content analysis of constitutional provisions, by the scientific observer. The criterion
can be majority agreement by sample of the
statutes, ordinances, etc.5
(4) Invoking. Invocations are provisional context.) Note that in many value-institu-
characterizations of a concrete situation in tions no specialized structure prescribes
terms of a prescription (conforming to; norms and sanctions. But &dquo;custom&dquo; is also
a recognized source of legal prescription,
violation). Indexed by arrests, complaints,
and indictments.6 and customary laws that are not in the

4 The content most explicitly referring to 7


Note that convictions or acquittals by lower
conventional events of sanctioning reports arrest tribunals, if unappealed, are in this category.
and sentencing, for example. Media studies of Similarly, the disposition of "civil" controversies
"crime news" include such items, often with- belong here, as do the final determinations in
out separate subcategories. A thoughtful pio- concrete situations made by civil or military
neer study is that by Kingsbury, Hart, and administrators. Provisional determinations are
others (1937). invocations.
5 8
Contemporary concern with quantitative No regular summaries are available of the
studies of legal process are gradually bringing reports made officially of which policies have
into circulation trend and distribution studies been effectively executed, and where specific
of prescriptions (see Cowan, 1963). responsibility lies for any lack of performance.
6 The following are approximate measures of Content analysis of judicial decisions provides
invocation: number of offenses cleared by precise indices of the prescriptions alluded to,
arrest, number of persons charged (held for omitted, or ostensibly applied, thus enabling
protection), number dismissed before trial, the scholar-observer to appraise the relative role
number convicted by lower tribunal making ap- of prescriptions.
peal. The foregoing refer to "criminal" actions. 9 Included also are the dispositions of claims
Invocations also include "civil" complaints and that rise from the change of community policy
actions by officials that correspond to the re- (e.g., land condemnation for public rather than
sponses noted above to "criminal" problems. private use).

CONFLICT RESOLUTION VOLUME XI NUMBER 1

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33

statute books can be generalized from par- rectitude). A further analysis may be made
ticular cases. according to mterest grouping, which is
Participants. Participants in public or defined to refer to a shared expectation of
civic order are not only individuals; they advantage on a scale that cuts across or
are also groups, organized or unorganized. is included in culture or value class cate-
The reference here is to the number of gories.12 Interests can be identified with
people or of each category of association almost infinite profusion, but those even-
involved. As sanctioning models are made tually relevant to sanctioning may be past
more refined, attention is given to categories and present civil litigants (satisfied, dissatis-
of participants who are deemed worthy of fied) and parties to criminal action (also
investigation as factors determining the re- self-perceived targets of indulgence or dep-
sponse under study, Participants may be rivation in nonofficial situations of a crim-
divided into culture, class, interest, per- inal or civil character). The analysis may
sonality, and crisis categories. It is often be pushed further to include personality
obvious that culture predispositions,10 plus groupings.1S Crisis and intercrisis distinc-
exposures during a given period, will prob- tions may be noted (which implies that the
ably affect sanctioning policy (foreign bom, previous categories of culture, class, interest,
native born; severe versus mild sanction cul- and personality can be subclassified in these
tures in regard to particular norms; sections terms).
of the country). Expectations. All participants mentioned
Class analysis is likely to be rewarding, above should be described by the best
since final responses depend on the degree available methods to establish their expec-
of elite, mid-elite, and rank-and-file involve- tations. Some of the categories referred to
ment.11 The eight-fold value-institutional can be identified by indices independent
analysis of social process points to appro- of their expectations about sanctions (elites,
priate class divisions (power, enlightenment, for example) .14 But some important groups
wealth, well-being, skill, affection, respect,
12
Every skill specialty becomes a cluster of
10
Cross-cultural studies of sanctioning and interest groups (pickpockets, bank robbers,
conformity are in a preliminary stage, even confidence men, gamblers, prostitutes, and so
though the materials are partially available cur- on). This applies also to police, judges, prose-
rently through the United Nations. Among the cutors, defense attorneys, bondsmen, penal of-
interesting hypotheses is the suggestion that ficials, and so on. Interest groups form coali-
severity of sanction is affected by the severity tions with and against each other, crossing and
of child training procedures (see Child, 1954). recrossing "legitimate" lines.
11
Systematic class analysis has been greatly 13Intense or moderate personality conflicts
stimulated by Lloyd Warner and associates, affect the response of each participant to every
who emphasized upper-class exemptions from situation in which he plays a defined or unde-
law enforcement. On middle- and upper-class fined role. The psychopathic personality&mdash;a
violations in general, see Sutherland (1949) "character disorder"&mdash;is conspicuous in violent
and Cressey (1953). The late Srend Ranulf situations, whether on the side of the law or
devoted himself to investigating by quantitative against it. For basic orientation, consult Arieti
methods the impact of changes in class struc- (1959, especially vol. 1, ch. 19).
ture on the scope and severity of criminal legis- 14Social surveys are only beginning to be
lation (1954). Research on class is still rela- used to discover the perspectives that are dis-
tively undifferentiated, focusing mainly on tinctively associated with elite, mid-elite, and
wealth, skill, and respect. rank-and-file positions at specific cross-sections

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34

acquire significance as a result of their out- first time to keep a comprehensive simula-
look on sanctions. In these cases, obviously, tion of sanctioning up to the minute in any
the numbers of participants must be re- context. The chief difficulty is the slow
corded after the research on expectations mobilization of initiative among jurists, po-
is well along. litical scientists, and other intellectuals with
Base values. The participants mentioned an interest in data gathering. Pressures on

above were identified according to their government intelligence and appraisal agen-
position in reference to the values at any cies produce unbalanced results; to some
given time. This does not, however, inform extent these imbalances can be corrected
us whether available base values are actually by university and other institutions of pri-
used to influence sanctioning policy; this is vate research.17
what is called for in the present part of Consider, for instance, our present lack
the outline.15 of knowledge about the total value impact
Skillful strategy. Strategies can be de- of official sanctioning practices. To say the
scribed in many ways (coalition, isolation; least, we have few field researches that
persuasion, coercion, etc.). But the most sample the parties who are involved at the
pertinent mode of reference summarizes a different phases of the deprivation-sanction-
relationship between cost and benefit. Costs ing sequence. There are ample indications
and benefits are most conventionally stated in the US that the results sought by con-
in money terms; but all values would enter ventional sanctioning arrangements do not
into acomprehensive, systematic analysis. accomplish their proclaimed objectives. A
In some anti-crime crusades, for example, preliminary analysis of sanctioning trends
in the US established several strong pre-
churches and clergy may be heavily used;
but this may backfire by stimulating liberal sumptions (Arens and Lasswell, 1961, es-
groups to oppose &dquo;blue law&dquo; enforcement
pecially ch. 10):
In terms of respect there are some explicit
and by encouraging violation.16
denials of basic human equality of right,
The preceding outline draws attention to
and various discriminations that stem from
the interweaving of sanctioning arrange-
ments with the social context; however, contradictory doctrines of responsibility.
this is no news to the contextualist. Modern Summary proceedings are resorted to in
an unnecessarily large number of instances.
data processing renders it possible for the
In terms of enlightenment it is evident that
in time. More "intensive" methods will be per- the language of penal codes lacks self-con-
suasive only when related to patterns estab- sistency, and that words like &dquo;civil&dquo; and
lished by surveying (and similar methods of &dquo;criminal&dquo; mislead officials and the public
an "extensive" character).
15
at large. When we look at the wealth assets
Research is needed into the assets (wealth,
etc.)used for the enforcement and nonenforce- employed in constructing and maintaining
ment of the same prescription.
16 A useful first step in the study of skill is We need to develop academic and citizens’
to interview samples of the specialists who are
17
"counterpart" organizations to the official struc-
involved in administering and in blocking the tures devoted largely to sanction law. Such
administration of laws. The anecdotal books by organizations could simulate the past and con-
police officers, prosecutors, and counsel for the tingent future of the official agencies and per-
defense are suggestive, but provide a dubious form an unofficial role in appraisal and in-
guide to the level of skill in any context. telligence functions.

CONFLICT RESOLUTION VOLUME XI NUMBER 1

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35

our sanctioning organs-courts, police, pe- registering outcomes. The constitutive codes
nal establishments-and examine the per- are the &dquo;fundamental allocations of power&dquo;
sisting cost of &dquo;crime,&dquo; the productivity of in each arena, including the world com-
the tax dollar is not high. Many standard munity, each nation-state, and each subna-
sanctioning measures are administered in tional body politic. The constitutive sanc-
ways that contribute to the mental and tions embrace all the measures eligible for
physical deterioration of those whom they employment as strategies to mobilize con-
touch. Our system erects many barriers tinuing defense and fulfillment of the sys-
against the recruitment of skilled personnel tem of public order.18
to exeoute sanctioning programs, and en- Super0i8ory. The supervisory code pre-
courages the misdirection of skill into dis- supposes that the government limits its
torting and defeating the aims of public degree of participation in the social process
policy. The sanctioning process does not in such a manner as to establish a presump-
give sufficient consideration to the integ- tion in favor of the resolution of private
rity of family life. For instance, imprison- conflicts privately. The supervisory code,
ment is gratuitously disruptive. therefore, encourages the voluntary settle-
In regard to rectitude, the relative failure ment of disputes at any time up to near the
of the sanctioning system to build respon- end, even though provisions are made to
sible character is evident in the subsequent guide the discretion of community decision-
record of those who have passed through makers if they must eventually commit them-
its ministrations. The political significance selves. In our society judges are usually act-
of sanctioning-the net effect on democ-
ing at the initiative of one or both parties in
racy, for example-raises many doubts. The a controversy over the obligations of a private
corruption of political parties and hence of agreement (contract), or in a dispute over
government officials undermines confidence
in the genuineness or the workability of
an alleged wrong (tort). Sanctions are

available to the judges for use for or against


popular institutions.
the parties concerning whom he decides.
The Codes Public Order Unlike the constitutive code, sanctioning
at a System
under the supervisory code must wait until
As a means of focusing investigation on
a private party has taken an initiative.19
various sectors of the problem it may be
serviceable to provide a systematic outline
18
of the place of sanctioning arrangements in A first step is to content-analyze all the
authoritative documents that are convention-
the codes that comprise a public order sys-
ally called "constitutions" or "fundamental
tem. The following subcodes can be identi- laws." Quantitative procedures now render it
fied for purposes of cross-cultural and his- feasible to compare in detail the provisions of
torical comparison: the constitutions of all world states at conve-
Coostitutive. These prescriptions identify nient time-markers.
19 A first step is to content-analyze the "con-
authorized participants in the decision tract" and "tort" provisions of all legal systems.
process itself, the permissible objectives for As we have emphasized, a final determination
which power may be used, the organized of the "lawfulness" of a statement must be
structures involved, the degree of authorized postponed until appropriate research has estab-
lished at least a minimum critical frequency of
control over base values (assets), the char-
application when the contingency circumstances
acter of eligible strategies, and the mode of occur.

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36

Regulatory. Regulatory prescriptions society, the outline can be used to exhibit

specify the limits within which private (or, the characteristics of the sanctioning com-
in socialist systems, private-equivalent) ac- ponent of the larger system.
tivitiesare to be carried on. Deviations Deterrence. The objective of deterrence
from these limits are not viewed solely as is abstinence from violation of norms. A
private matters; hence officials are expected deterrence response can be defined at sev-
to act to restore the situation by the use of eral observational depths. One stipulation,
positive or negative sanctions if required. for instance, may be that a violation has
For example, initiative may be taken to been considered and rejected, as when the
break up an unlawful political party; to policy-makers of a political party consider
dissolve a spy ring; to restrict a monopolistic the use of violence in some precincts but
business; to raise the standards of private reject the idea in view of the probable
hospitals; to improve private schools; to response of law enforcement officers. Or,
abolish discrimination in private employ- on similar grounds, the editors of a journal

ment ; to provide variances for church reject a potential cause of libel action, a
buildings.20 retailer refrains from false labeling, a hos-
Enterprisory. These prescriptions relate pital abstains from further staff cuts, a
to activities that are continuously admin- school refrains from corporal punishment,
istered by government, even though they a husband rejects bigamy, a union does not

are not necessary for minimum power pur- refuse to admit Negroes, a church does not
poses. Enterprisory operations are found build in defiance of building regulations.
in both socialist and capitalist societies, The stipulations relating to deterrence may
though the two systems typically differ in be extended to include unconscious resist-
some of the functions that they assume to ance against impulses that violate norms.

be indispensable to the government. Sanc- In this case it may seem far-fetched to


tions are employed to keep policy con- speak of conflict resolution by the use of
sanction. However, it is not unreasonable
trol in authorized hands and to obtain
to enlarge the relevant context of events to
conformity.21
include the earlier collective act, followed
The Systematic Objectives o f Sanction by individual conscience formation in accord
Law with the norm.22
Restoration. The objective is to stop a
As a further step toward a strategy in the
violation and to return the situation as far
choice of research topics, we now outline
as possible to ,the original state of conform-
a systematic set of sanction law objectives.

If related in detail to the public order of


ity with the relevant norm. A successful
the United States or of any other selected 22
Observe that it is not enough to show that
violations have dropped as enforcement efforts
20
Research on regulatory codes usually leads have increased. Relevant data would include:
to aggregate picture, however dim. The
an interviews with "conformers" matched with
problems are, of course, complex. For a guide "nonconformers" who testify that deviation was
to the analysis of economic regulation in our considered and rejected because of the in-
system, see Massel (1962). creased probable net cost of nonconformist
21
For a step in a promising direction, see policy. The gains of deviation sometimes are
"government and politics" in Russett et al. perceived as increasing more rapidly than prob-
( 1964, p. 56). able cost of sanction.

CONFLICT RESOLUTION VOLUME XI NUMBER 1

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37

strategy of this kind is exemplified when the Reconstruction. The objective is to en-
armed forces of a power, having impermis- courage revolutionary changes in a collec-
sibly established themselves on the territory tive situation that will alter both norms
of another power, retire without inflicting and sanctions. Prevention operates within
damage.23 an accepted framework that is somewhat

Rehabilitation. The objective is to undo reformed; reconstruction implies many re-


any deprivations that have been imposed forms of a sweeping character. At the end
in the course of the violation. Indemnities of great eras it has become common to
may be set to take of the property
care attempt to frame a system of public order
damage done by an unlawful expedition. that drastically reduces the circumstances
When they go beyond rehabilitation to bur- in which resort to inadmissible coercion
dens designed to influence future conduct, occurs.26
the strategic aim is mainly deterrence.24 Correction. The objective of a correction
Prevention. The objective is to diminish strategy is to transform the individual by
the likelihood of future violation by chang- rendering him susceptible to ordinary sanc-
tions. A corrective problem arises, for in-
ing practices that act provocatively and
stance, when an individual is biologically
thereby contribute to violations. Deterrence
acts when an impulse is aroused; prevention defective and cannot learn to adjust his
behavior according to the costs and gains
acts to forestall the mobilization of impulses
that endanger public order. Many industrial (the value deprivations and indulgences)
that influence most members of the com-
abuses have been abolished as a means of
munity. Unless such a defective can be
reducing violations of agreement.25 transformed by medical or surgical means,
23 the community must protect him and others
See the analysis in McDougal and Feliciano
(1961, pp. 311-16, 319-20, 325-29, 330, 346, from mutual harm. Another set of correc-
352, 356, 360).
24In folk societies a fundamental objective stances in the sectors of power, enlightenment,
latent in the traditional practices to cope with wealth, well-being, skill, affection, respect, and
an act of impermissible destruction of values is rectitude.
both restorative and rehabilitative. The prob- 26An example of formal authorization of a
lem is to return the situation to the previous value inducement to help obtain conformity to
equilibrium, and in this sense is a homeostatic a bitterly contested norm is afforded by the
adjustment. To return to the original state calls, Civil Rights Act, 42 USC 2000 C (1964): "The
among other arrangements, for the rehabilita- Commissioner is authorized, upon the applica-
tion of those entities whose value positions have tion of any government unit legally responsible
been undermined, which is more than bringing for operating a public school or schools, to ren-
the deviation to an end. der technical assistance to such applicant in the
25
Systematic application of the value cate- preparation, adoption, and implementation of
gories draws attention to the sectors in which plans for the desegregation of public schools.
provocative deprivations are reduced, thereby Such technical assistance may, among other
exerting a preventive effect. Failure to permit activities, include making available to such
registration for voting, failure to post notices agencies information regarding effective meth-
of significant dates, unwillingness to readjust ods of coping with special educational prob-
wages despite rising living costs, neglect of lems occasioned by desegregation, and making
open ditches as accident hazards, failure to available to such agencies personnel of the
provide school facilities, indifference and dis- Office of Education or other persons specially
courteous conduct by managers, use of obscene equipped to advise and assist them in coping
language and gestures: these are common in- with such problems."

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38

tive problems is presented by those who be used as first approximations of prearena


have been insufficiently exposed to the deprivations. The figures are unsatisfactory,
norms of order to have an oppor-
public since public officials are the source, and
tunity to learn them. Foreigners, rustics, prearena events are defined to refer to pre-
and persons from exceptionally isolated com- official events. As indicated above, be-
munities come in this category. They re- havioral scientists working in their private
quire education in the norms. In some cases, capacities can do much to fill the present
lack of opportunity to acquire the general conspicuous gap in trend or factor knowl-
norms has been accompanied by indoctrina- edge about society and law. Almost no
tion in antagonistic n01’f118, as with the duti- data are systematically reported about the
ful son of a pickpocket, or of a family that perspectives of those who figure as partici-
rejects the payment of taxes on religious pants in sanctioning or conforming proc-
grounds. Children may be corrective prob- esses. only the crudest improvisa-
Hence
lems, even without negative indoctrination, tions can now be made in attempting to
through insufficient experience with pub- relate a dynamic model to the facts of life.
lic order and with insufficiently realized In fact the point applies whether we are
capacity.27 referring
to preoutcome, outcome, or post-
In this mode of analysis, &dquo;punishment&dquo; is outcome events of decision or choice.
not listed as an objective of sanction. We We predict that the scientific study of
concur with the late Professor George H. the sanctioning process in the world com-
Dession, and others, in treating the demand munity as a whole and in its several com-
to punish as a factor that conditions the ponents will help provide a vast body of
sanctioning response, but that has no busi- realistic intelligence and appraisal data for
ness dictating it.28 This need give rise to the decision process, and that the effect
no scientific confusion if other investigators will be to clarify the goals and perfect the
include &dquo;punishment&dquo; as an objective rather institutions of public and civic order. We
than a condition. The same perspectives do not predict that the result will neces-
and operations figure in one case at the sary contribute to the system of public
&dquo;outcome&dquo; phase; in the other case, they order with which we associate ourselves
are &dquo;preoutcome&dquo; events. (i.e., the public order of human dignity).
But our hypothesis is that the expansion
Conclusion
of knowledge will probably contribute to
It may not be amiss to comment again on this result. In any case, the science and
some of the questions that arise in relating
policy of conflict resolution will be deep-
conventionally reported information to the ened and broadened both contemplatively
indices required by the deprivation-sanc-
and manipulatively.
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A principal theme in his important lectures , 49 (1964),
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CONFLICT RESOLUTION VOLUME XI NUMBER 1


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