Enforcement

Enforcement refers to the state's regular use of surveillance, control, and penalty in order to prevent and respond to noncompliance. Enforcement gives power to the state through its ability to deter citizens from acting against the law. Enforcement is thus considered to be a governable precondition for the compliance motivation of deterrence. Deterrence is associated with an economic model of compliance that assumes that rational individuals comply with laws if their expected costs of noncompliance outweigh their expected benefits (Reference BeckerBecker 1968). The deterrence-oriented compliance model dominated the early fisheries compliance literature (Reference Anderson and LeeAnderson & Lee 1986; Reference Sutinen and AndersenSutinen & Andersen 1985) and is still the dominant element of national and international compliance strategies.

Empowerment

While enforcement gives power to the state, empowerment gives power to citizens. Empowerment refers to the existence of institutions that guarantee that the power of those affected by management decisions is great enough to ensure that those decisions promote—rather than violate—their basic needs and perceived fundamental rights. Empowerment is considered a governable precondition for the compliance motivation of moral support for the law's content. Moral support for the law's content means that fishers perceive that rules and regulations correspond to their moral beliefs, and that they therefore consider the content of the law as a significant reason for compliance (Reference GezeliusGezelius 2007). The importance of moral support for the law's content has received increasing attention in literature concerned with normative compliance motivations. It has been argued that laws perceived as violating citizens' moral rights tend to provoke noncompliance (Reference HauckHauck 2009a, Reference Hauck2009b; Reference JentoftJentoft 2000), while laws perceived as promoting citizens' shared values tend to trigger informal compliance mechanisms (Reference Acheson and GardnerAcheson & Gardner 2004; Reference GezeliusGezelius 2004; Reference Jentoft and KristoffersenJentoft & Kristoffersen 1989; Reference Scholz and LubellScholz & Lubell 1998). It may be necessary to grant specific influence to those groups that are particularly affected by regulations to ensure that regulations are shaped such that regulated actors perceive them as morally justified (Reference JentoftJentoft 1989; Reference Kagan, Scholz, Hawkins and ThomasKagan & Scholz 1984). Empowerment is arguably most critical to compliance motivation in regulatory fields where the state cannot make well-founded assumptions regarding the moral perceptions of citizens and therefore needs empirically based knowledge regarding these perceptions.Footnote ² The management of common-pool natural resources, such as fish stocks, will often constitute such a regulatory field. Reference Kagan, Scholz, Hawkins and ThomasKagan and Scholz (1984) have argued that compliance with business regulation generally may be facilitated by a regulatory style that emphasizes negotiation between the regulator and the regulated.

Civic Identity

While enforcement gives power to the state and empowerment gives power to citizens, civic identity creates a sense of community between the two. Civic identity means not only that people are empowered through citizens' rights to participate and thus are acknowledged as proper state members (citizenship), but also that membership in the state has become part of people's conception of self—their social identity. We argue that civic identity is a precondition for the compliance motivation of the legislator's authority. The term legislator's authority refers to the perception among citizens that they have a moral obligation to obey the law even if they might personally disagree with the law's content (Reference GezeliusGezelius 2009).

The hypothesized causal connection between civic identity and the legislator's authority draws on the social identityFootnote ³ theory originally developed by Reference TajfelTajfel (1982) and needs a thorough explanation. An important feature of civic identity formation is that the state with its legal institutions becomes part of what Reference SumnerSumner (1940) calls people's perceived “ingroup” (or “we”-group). Social identity theorists have shown that ingroup members tend to value ingroup characteristics positively (Reference Hogg and AbramsHogg & Abrams 1988; Reference Tajfel, Turner, Worchel and AustinTajfel & Turner 1986 social identification promotes cooperative and altruistic behavior toward ingroup members (Reference Bergami and BagozziBergami & Bagozzi 2000), and—most important—that social norms are key means of ingroup definition, and that group belongingness generates conformity to ingroup norms (Reference Hogg and AbramsHogg & Abrams 1988:171–5). The social identity theory has in recent years been applied by scholars concerned with the question of national identity's ability to generate civic behavior, including political participation and compliance, through behavioral norms attached to people's image of self as “good citizens” (see, e.g., Reference GezeliusGezelius 2003; Reference Huddy and KhatibHuddy & Khatib 2007). It has been argued that the ability of national identity to create such civic behavior depends on national identity being constructed to a significant extent on the notion of citizenship (Reference Mansbach and RhodesMansbach & Rhodes 2007). Civic identity is seen as facilitated through politically embedded nation-building and through the construction of institutions for the political participation of citizens. Several studies suggest that state-society identification promotes compliance, and that this identification is promoted by the state's inclusive approach to citizens (Reference GezeliusGezelius 2003; Reference LeeLee 2008; Reference MurphyMurphy et al. 2009). The social identity perspective implies that the legal rights and obligations associated with citizenship may attain positive moral weight once citizenship forms part of people's social identity; civic identity promotes law-abidingness when law-abidingness forms part of people's image of “the good citizen.”

The social identity perspective also implies that civic identity reduces emotional obstacles to moral subordination to the state, because civic identity means that state governance is experienced as ingroup governance (Reference GezeliusGezelius 2003:34–5; see also Reference MurphyMurphy et al. 2009). A related implication is that civic identity entails that the state and its legal institutions tend to be valued positively among citizens, for example in the form of high levels of trust in political decision makers. In sum, the social identity theory implies that one can reasonably hypothesize civic identity to be a significant precondition for citizens' subjectively experienced moral obligation to obey the law: the legislator's authority.

Compliance Motivations

The first study in our cross-case comparison is an ethnographic study of fishers' compliance motivations that was carried out in an inshore fishing community of some 390 inhabitants and 60 registered fishers on Norway's west coast in 1997, when this community was severely affected by a series of periodic closures of the saithe fisheries (Reference GezeliusGezelius 2003). These fishers thus had significant economic incentives to conceal illegal quantities of saithe through falsification of sales notes, and they also knew of a fish buyer in the area willing to falsify sales note information. The fishers perceived the risk of detection by law enforcement as being low in this particular area, and deterrence was thus not a strong motivation among fishers for observing regulations in their local waters.

The fishing fleet consisted of 14 inshore vessels fishing with automatic jigging machines and gillnets, and three midshore vessels also using purse seines. All vessels were subject to state regulation. However, the fishers unanimously disagreed with regulations for the inshore vessels because they believed that these vessels represented no threat to the fish stocks. Fishers on the purse seiners, who shared this view, supported regulation of their own vessels. The predominance of inshore vessels in this community resulted in widespread absence of moral support for the law's content, although regulation of the larger vessels was supported.

The fishers in this community most often complied with the state's regulations concerning commercial fisheries, including the saithe closure, despite strong economic incentives for noncompliance and low detection risk. Despite a significant degree of opposition against the content of regulations, the fishers' reasons for compliance focused largely on their fear of being morally condemned in the community and on their own moral convictions. The most important social norm governing compliance behavior and community sanctions was a perceived moral obligation to obey the law, regardless of the law's content. Inshore fishers did thus not perceive their lack of moral support for the law's content as an adequate reason for breaking the law. “Being a law breaker” was associated with moral discomfort and loss of status in the community. Based on these data, we developed our concept of the legislator's authority—a content-independent moral obligation to obey the law—to signify the main compliance motivation in this case study. Although the legislator's authority was a significant compliance motivation, this authority sometimes conflicted with fishers' perceived right to make a reasonable livelihood from fishing. Some of the fishers had had a poor fishing season and were thus hit especially hard by the saithe closure. When some of these fishers violated regulations to reduce their severe economic difficulties, the surrounding community experienced a moral dilemma that left it unable to severely sanction these transgressors. The legislator's authority was still in force, but fishers' resistance against the law's content had in these cases become strong enough to create moral ambivalence and disagreement in the community regarding noncompliance. In these cases of economic hardship, the community could thus neither clearly accept nor effectively sanction violations.

This community study was followed by a study of compliance motivation among offshore fishers, based on fieldwork onboard five vessels from one of Norway's main pelagic fisheries communities. This municipality of about 4,500 inhabitants had a fleet of 24 modern, mostly family-owned, offshore purse seiners. Almost half its workforce was employed in fisheries-related activities; therefore, the levels of social transparency and social control were comparable to those of the inshore fishing community.

This fleet was subject to much stricter state control and enforcement than were its colleagues in the inshore fishing community, and the fishers emphasized that the risks and costs of being detected by enforcement personnel was a significant compliance motivation for them. The fishers on large offshore vessels also strongly supported regulation of their fleet generally and core aspects of Norwegian fisheries policy specifically, such as the ban on discarding. Consequently, we found that our concept of moral support for the law's content, which had been developed during the Newfoundland case study, properly described this compliance motivation. In addition, law-abidingness was a criterion for being considered a “bona fide” fisher in this milieu, and thus of receiving the trust and recognition required for beneficial cooperation with other fishers. These offshore purse seiners competed intensely for the honor associated with being the most-catching vessel, and the moral force of law entailed that fisheries regulations were perceived as rules of fair play in the competition. Gaining a competitive advantage through illegal means was clearly not accepted. The moral force of law among these fishers arguably reflects the importance of law-abidingness to the Norwegian image of the “good citizen.” Data showing that these fishers believed that Norwegian fishers were much more law-abiding than foreign fishers supports the interpretation that law abidingness is part of the fishers' social identity (Reference GezeliusGezelius 2006, Reference Gezelius2007). The study of the Norwegian offshore fishers thus found that all three compliance motivations—deterrence, moral support for the law's content, and the legislator's authority—played a role in ensuring compliance.

Governable Preconditions for Compliance

Norway's approach to ensuring fishers' compliance is traditional in the sense that it focuses on surveillance through sea- and land-based controls, and penalty through fines, confiscation, and withdrawal of licenses. The governmental discourse regarding compliance has correspondingly been oriented toward deterrence mechanisms (Reference Gezelius, Gezelius and RaakjćrGezelius 2008b). However, the governable preconditions facilitating moral support for the law's content and the legislator's authority are interesting in this context. We thus specifically address Norwegian characteristics regarding fishers' empowerment and civic identity construction.

Norwegian fishers are mainly organized in a single fishers' union—the Norwegian Fishermen's Association (NFA)—that organizes owners and crews in both the inshore and offshore sectors. The NFA is regarded by the government as the main voice of the fish harvesting industry and functions as the government's most important consultant in setting fisheries regulations. The NFA was established in 1926 when a number of regional fishers' unions merged into one national union, partly as a result of the government's wish for a uniform industry voice. Government arrangements for industry consultation were established simultaneously with the state's fisheries administration in 1900, and they became effective with the creation of the NFA. The NFA was largely oriented toward the political authorities from the beginning. Its influence was enhanced through its strong links to the labor movement that dominated Norwegian politics from the 1930s to the late 1970s. The NFA has maintained a strong position since. The strong political position of the NFA meant that Norwegian fishers historically had political influence and identity close to the political center of gravity. One of the most important results of the NFA's influence was the Raw Fish Act of 1938, granting fishers' sales organizations a law-protected monopoly on the first-hand trade of fish. This monopoly significantly strengthened the market position of fishers. Fishers' economic welfare was secured further through the Basic Agreement of 1964 whereby the NFA became the government's exclusive partner in negotiations regarding government financial support for the fishing industry. As a result of these institutions for empowerment, fishers were able to take part in the Norwegian welfare growth after World War II (Reference ApostleApostle et al. 1998; Reference GezeliusGezelius 2003, Reference Gezelius, Gezelius and Raakjćr2008b; Reference Hallenstvedt and DynnaHallenstvedt & Dynna 1976). The NFA included the offshore fisheries sector in the 1960s (Reference Hoel and WilliamsHoel et al. 1991:92) and thus gained increased influence as the organization representing the entire harvesting sector. The general increase in fishers' standard of living and the development of public welfare schemes have protected fishers against poverty potentially resulting from regulatory measures. Consequently, the economic difficulties observed among some fishers in the case studies did not emerge as matters of basic material security and did not destroy the legislator's authority in the community—although economic difficulties generated sufficient empathy to dampen social sanctions against transgressors (Reference GezeliusGezelius 2003:58–76).

As resource conservation became an increasingly important state task from the 1970s onward, the NFA was granted a major role as formal and informal advisor to the state in matters of fisheries management. For example, the NFA is strongly involved in setting Total Allowable Catches (TACs) and has near de facto control of quota distribution. The NFA's influence has been facilitated by organizational procedures that generate uniform industry advice through voting procedures.

The fishers' sales organizations have also been delegated important implementation tasks relating to quota monitoring, catch statistics, and enforcement. The extent of state-industry interaction in fisheries management has made the industry into a responsible partner with the state in matters of fisheries management, thus blurring perceived distinctions between state and industry organizations. It can be argued that this blurring has facilitated fishers' identification with the state. The blurring of state-industry distinctions has arguably been reinforced by extensive exchange of personnel across state-industry boundaries. For example, several fisheries ministers were previously prominent NFA representatives (Reference GezeliusGezelius 2003, Reference Gezelius, Gezelius and Raakjćr2008b).

Norwegian fisheries are characterized by a strong tradition of industry empowerment. The earlier study of the inshore fishers addressed perceptions of decision making procedures and found that these procedures were largely considered satisfactory. Decision making procedures were largely taken for granted and constituted no matter of great concern among fishers, although skepticism of fisheries science was widespread (Reference GezeliusGezelius 2003:54–8, 80–2).

The legislator's authority among Norwegian fishers has been explained both in light of structures for empowerment contributing to fishers' identification with the state and in light of general research on Norwegian national identity and political culture (Reference GezeliusGezelius 2003). Survey data have shown that Norwegian national identity is strong and that it may be described as a case of what Reference BilligBillig (1995) calls “banal nationalism”—an implicit and taken-for-granted national identity typically found in well-established nation-states in the Western world (Reference KnutsenKnutsen 1997). Important in this context, Norwegian national identity has been constructed primarily around state institutions. Norwegian nation-building during the 19th century established the Constitution of 1814, the parliament, and the idea of a self-governed people as cornerstones of Norwegian national identity. The Constitution Day became Norway's biggest public celebration, with a participation rate exceeding 90 percent of the population (Reference AagedalAagedal 1997; Reference GezeliusGezelius 2003; Reference Sørensen and SørensenSørensen 1998). The success of nation-building was arguably also facilitated by continuous economic growth and the construction of the welfare state after World War II, reducing economic and political cleavages. The Norwegian tradition of including interest groups, such as fishers, in the political decision making process played a significant role in ensuring citizens' welfare (Reference GezeliusGezelius 2003). Norwegian nation-building thus largely emerged as a project of civic identity construction. Norwegian nation-building can thus be described, in Reference Mansbach and RhodesMansbach and Rhodes's (2007) terms, as a case of citizenship becoming a core marker of national identity.

Social identity theory implies that civic identity is associated with a favorable impression of the state's major political institutions, and surveys conducted up to the point of the Norwegian compliance study show that Norwegian voters have consistently been satisfied with the Norwegian political system (Reference AardalAardal 1999:166–90; Reference Aardal and ValenAardal & Valen 1989:276–81; Reference GezeliusGezelius 2003). Similarly, studies document a high, relatively stable level of citizens' trust in politicians and political decision makers, in the sense that trust tends to dominate over distrust on the measured indicators—such as faith in decision makers' competence, reliability, and concern about ordinary people's opinions (Reference AardalAardal 1999:170–1; Reference Aardal and ValenAardal & Valen 1989:279–81; Reference GezeliusGezelius 2003; Reference Miller and ListhaugMiller & Listhaug 1998). Undoubtedly, Norwegian voters generally perceive the Norwegian political system as a case of ingroup governance. Arguably, the traditions for empowerment and governance-oriented nation-building have contributed significantly to constructing civic identity, paving the way for the legislator's authority observed in the Norwegian case studies.

State Type Classification

Based on data about the Norwegian fisheries governance system with its strong traditions for industry empowerment and strong civic identity, we developed our theoretical ideal type of the embedded state. Norwegian fisheries governance does not necessarily equal this ideal type in every respect and every setting, but this ideal type describes its essential features. We hypothesize that these features, to a significant extent, have promoted the legislator's authority and moral support for the law's content among fishers. It is symptomatic of the embeddedness of Norwegian fisheries governance that the state's enforcement may be characterized as low-conflict. Fisheries enforcement personnel are unarmed, and incidents of physical violence are extremely rare. The Coast Guard, which is responsible for at-sea controls, instructs its personnel to behave politely, and studies have shown that the Coast Guard is quite well respected among fishers (Reference GezeliusGezelius 2003, Reference Gezelius, Gezelius and Raakjćr2008b; Reference HønnelandHønneland 1998). This low-conflict enforcement is arguably made possible by strong institutional ties between the state and civil society. These ties entail that civil society largely takes care of compliance through informal social control, while the state's enforcement may concentrate on a relatively small residual of people and situations not affected by civil society's control mechanisms. The compliance discourse within fisheries management may thus focus on enforcement directed at this residual because the more fundamental preconditions for compliance—civic identity and empowerment—have already been established.

Compliance Motivations

The second case in our comparison is an inshore fishing village of approximately 350 people including 55 registered fishers, located on the eastern coast of Newfoundland, Canada. Data on fishers' compliance motivations were generated through ethnographic methods for the purpose of comparison with the Norwegian inshore village described above (Reference GezeliusGezelius 2003). Data were generated during spring 1998, when a long-lasting moratorium on cod fishing and a high density of cod in local waters together provided a significant incentive for illegal fishing.

The fishing fleet of this village consists of decked inshore vessels and open boats, traditionally combining fisheries for groundfish and pelagic species. However, the cod fisheries were closed in 1992 due to fish stock collapse, and moratoria were introduced for most other groundfish species in the area two years later. The Newfoundland fishing village had survived based on pelagic fisheries, crab fisheries, and a special income support program—The Atlantic Groundfish Strategy (TAGS)—that compensated Newfoundland fishers for their loss of income following the groundfish moratoria. TAGS and the remaining fisheries ensured that the fishers' lifestyle and material standard of living remained relatively intact after the moratorium, although many were worried about the future.

The fishers collectively agreed that the fish stocks had been severely overfished and that the government acted correctly in closing the commercial cod fisheries in 1992. In 1998, most fishers wanted the government to open a small commercial test fishery for cod, but still agreed that strict regulation of commercial cod fisheries was necessary. Cod has had great historical importance in Newfoundland, which has given it a special place in the minds of Newfoundlanders as an important common good. Consequently, protecting the cod stock was perceived as a collective responsibility. The fishers unanimously agreed that they had a moral obligation to abstain from illegal fishing on a commercial scale. This moral norm was strictly monitored and enforced among community residents; this village complied absolutely with the ban on commercial cod fishing. However, rumors circulated that some people in the surrounding area poached commercially. These poachers were subject to intense gossip, indignation, and social exclusion, and they emerged as a criminal subgroup regarded with fear. Observations of gossip were followed up by interviews regarding the gossip's moral basis. The moral norm against freeloading on a collective sacrifice to protect the stock was the core reason for blaming commercial poachers. Despite the researcher's attempts to find signs of the legislator's authority, no data suggested that breaking the law was seen as immoral per se; this picture was also confirmed by data regarding other commercial fishing activities (Reference GezeliusGezelius 2003:124–34; Reference MatthewsMatthews 1993:181–8). The perceived moral obligation to obey the law was contingent on the perception that harsh restrictions on commercial cod fishing were necessary to protect the common good (see Reference Scholz and LubellScholz & Lubell 1998). We thus developed our concept of moral support for the law's content to describe the dominant compliance motivation regarding commercial cod fishing.

The fishers believed that subsistence fishing, unlike commercial fishing, represented no threat to the stock and thus strongly opposed the state's ban on subsistence cod fishing. Unlike commercial poaching, subsistence poaching was thus commonly accepted in the community and could take place fairly openly. However, strict enforcement of the cod moratorium by Canadian authorities reduced many people's willingness to poach even for subsistence. While moral support for the law's content was the dominant compliance motivation concerning commercial fishing, deterrence was the dominant compliance motivation concerning subsistence fishing. It is symptomatic of the moral distinction between commercial and subsistence poaching that people supported strict enforcement of the commercial fishing ban, while they reacted indignantly when subsistence poachers were arrested and punished.

It is notable that both Newfoundland and Norwegian inshore fishers, despite their different views regarding the legislator's authority, were more receptive to state regulation of commercial fishing than to regulation of subsistence fishing. The Norwegian inshore fishers, who were strongly motivated by the legislator's authority in their commercial fishing, were comparatively tolerant of illegal subsistence fishing. We have argued elsewhere that citizens tend to regard subsistence-oriented, small-scale activities as relatively harmless and morally innocent compared to commercial, large-scale activities. Citizens are thus more inclined to accept the legislator's authority and to support the law's content in the “morally perilous” sphere of commerce than in the “morally innocent” sphere of subsistence (Reference GezeliusGezelius 2004).

Governable Preconditions for Compliance

The Newfoundland case does not differ significantly from its Norwegian counterpart regarding deterrence and enforcement. Newfoundland has a traditional enforcement-based system for ensuring fishers' compliance, based on surveillance and penalty following prosecution through the court system. The main difference regarding compliance motivation concerns an absence of the legislator's authority in the Newfoundland case, and the consequent dependence of normatively based compliance on moral support for the law's content. In terms of governable preconditions for compliance, we therefore focus on characteristics regarding empowerment and civic identity construction.

Unlike their Norwegian counterparts, fishers in the Newfoundland village were strongly concerned, frustrated, and disillusioned with decision making procedures. Newfoundland's fisheries are managed by the federal government, and fishers generally felt that the government was unreceptive to their views. Many felt that public hearings regarding fisheries management were window dressing, making no genuine difference. There was widespread distrust in federal decision makers' concern about Newfoundland, distrust in the competence of provincial authorities to take care of Newfoundland's interests, and disillusionment regarding the fishers' union's ability to make a difference. There was also massive distrust in the competence of government fisheries scientists (Reference GezeliusGezelius 2003:111–22).

These observations of political distrust among rural fishers are similar to findings in previous studies on political culture in Newfoundland. Consequently, these attitudes may not be ascribed to the fisheries crisis alone, but rather to a historical cultural pattern. Earlier studies found that Newfoundlanders had little faith in their ability to influence the government's decisions, and they distrusted federal and provincial politicians (Graesser, cited by Gezelius 2003; Reference MatthewsMatthews 1993; Reference OrnsteinOrnstein et al. 1980; Reference Simeon and ElkinsSimeon & Elkins 1974). This pattern of political distrust may be understood in the light of Newfoundland's history as a Canadian province. Newfoundland became part of Canada in 1949 after two referendums, ending with a small majority in favor of confederation. While central Canada had continued economic growth after World War II, Newfoundland lagged with relatively low incomes, high unemployment, and dependence on federal financial support (Reference Fairley and FairleyFairley 1990:11–12; Reference HillerHiller 1987:262; Reference Veltmeyer and FairleyVeltmeyer 1990:85–91). Newfoundland has thus been characterized as a case of regional underdevelopment within an advanced industrial state (Reference SinclairSinclair 1987:11). Government attempts to modernize the Newfoundland economy after World War II largely failed, which resulted in disillusionment and distrust of the federal government (Reference O'Brien and RawlykO'Brien 1979:289–302).

Newfoundland's troubled and relatively short relationship with federal Canada is also significant in terms of national identity. Its geographical isolation provided for a distinct culture and a sense of Newfoundland nationality, and people's attitudes towards federal Canada were ambivalent (Reference Campbell, Rawlyk and RawlykCampbell & Rawlyk 1979; Reference HillerHiller 1987; Reference Overton, Brym and SacoumanOverton 1979; Reference TomblinTomblin 1995). Surveys showed that Newfoundlanders had strong emotional ties to their province and that there was latent tension between people's identities as both Newfoundlanders and Canadians (Reference Elkins, Elkins and SimeonElkins 1980; Reference GibbinsGibbins 1994; Graesser, cited by Reference HillerHiller 1987; Reference O'Brien and RawlykO'Brien 1979). Similar observations of identity were made among the fishers in the Newfoundland village, who tended to express a strong Newfoundland identity that existed alongside, but was experienced as potentially competitive with, their identity as Canadians (Reference GezeliusGezelius 2003:119–22). The data on political distrust and sense of nationality thus suggest a significantly weaker civic identity in the Newfoundland case than in the Norwegian case.

The political empowerment of fishers is arguably important to understanding their attitudes toward the state. Similar to their Norwegian counterparts, Newfoundland fishers are well organized vis-a`-vis both the state and the processing industry. However, the Newfoundland fishers' union has a shorter history and one of far less state support than its Norwegian counterpart. Newfoundland fishers had a strong union in the early twentieth century, but it soon declined and lost most of its political importance, resulting in cautiousness regarding later attempts at organizing fishers. Not until the early 1970s did Newfoundland fishers establish a lasting, influential union. The union, which eventually was named the Fish, Food and Allied Workers (FFAW/CAW), organized both inshore and offshore fishers, as well as plant workers. While the NFA in Norway was largely oriented toward the state, partly because the Norwegian Raw Fish Act (1938) had ensured the fishers' market position, the FFAW/CAW was mainly oriented toward the conflict between fish sellers and buyers, spending much of its efforts in the early 1970s at gaining collective bargaining rights regarding fish prices and plant worker wages. The Newfoundland unionization process and the fight for collective bargaining rights were driven solely by the union and had little government support. Collective bargaining rights, in addition to the fishers' unemployment insurance that had been established in 1957, improved the economic security of fishers. However, the political influence and market position of Newfoundland's fishers came relatively late and have been modest compared to those of their Norwegian colleagues, who had a long history of a state-supported union, de facto legal control of fish prices since the late 1930s, and the right to negotiate annual state subsidies since the mid-1960sFootnote ⁴ (Reference ApostleApostle et al. 1998:50–8; Reference GezeliusGezelius 2003; Reference MacdonaldMacdonald 1985).

Similar to its Norwegian counterpart, the FFAW/CAW also attained a role as advisor for the state in matters of fisheries management as this became a growing issue from the late 1970s onward. However, while the NFA has an organizational structure aimed at making uniform decisions through extensive use of voting procedures, the FFAW/CAW has a structure mainly aimed at voicing often diverging opinions and thereby at avoiding voting on controversial issues. Similarly, voting has been avoided in the Newfoundland advisory committees for industry consultation, unlike in Norway.Footnote ⁵ Industry advice thus emerges as relatively heterogeneous and fragmented in Newfoundland, giving Canadian fisheries authorities a higher degree of autonomy in relation to industry advice than their Norwegian counterparts have. Although Newfoundland fishers have been significantly empowered over the years, they have not had conditions for constructing a shared state-industry identity equal to that of their Norwegian colleagues.

State Type Classification

Based on data about the Newfoundland fisheries governance system with its institutions for fishers' empowerment and yet ambivalent civic identity, we developed the theoretical ideal type of the semi-embedded state. We hypothesize that these characteristics to a significant extent promote moral support for the law's content but that they may also account for the absence of the legislator's authority among the fishers.

In the case of cod, people's moral support for the law's content was rooted in their concern about the fish stocks, but it should also be viewed in the light of the state's welfare schemes—especially the TAGS program—that ensured a reasonable material standard of living for fishers. The Newfoundland data were generated when the TAGs program was about to expire, and interview data indicated that economic security was a precondition for continued compliance. These interview statements were not put to a test, as the state announced a follow-up program of economic assistance, coming on top of the regular welfare system, in summer 1998. In addition good crab prices eased this transition period for many fishers. Nonetheless, the dependence of normative compliance motivation on economic security, which could be observed in the Norwegian case, was paralleled in Newfoundland interview data (Reference GezeliusGezelius 2003:131–3). Whereas effective policies to ensure citizens' economic security have been important to promote normatively based compliance, citizen's empowerment can rightfully be regarded as a precondition for such effective policies. Institutions for citizens' empowerment have been key to ensuring the basic economic security of fishers, whether through resource use rights, bargaining rights, or public welfare schemes.

Compliance Motivations

The third case in our comparison involves small-scale fisheries in three locations along the coast of South Africa (Reference HauckHauck 2009a; Reference HauckHauck et al. 2005). One fishery was investigated at each site, and the overall study included fishers harvesting abalone, rock lobster, and bait resources. Compliance research on the abalone fishery has been conducted since 1995, on the bait fishery since 2004, and on the lobster fishery since 2005. A comparative study between these fisheries was undertaken from 2005 to 2008, and data on fishers' compliance motivations were gathered through participatory observation and interviews. All small-scale fisheries in South Africa have been significantly affected by a fisheries transformation process initiated following South Africa's democratic elections in 1994.

A key objective of the first democratic fisheries policy and law in South Africa was to redistribute access to marine resources to previously marginalized people and communities. In other words, many indigenous coastal people, who had been denied access to marine resources during apartheid, were provided new opportunities to legally harvest the resources that they lived adjacent to. This political context of exclusion and transformation is critical to understanding compliance motivation. The discriminatory history of South Africa, which has resulted in significant mistrust and animosity toward the state, has contributed to the absence, noted in recent studies, of the legislator's authority. New laws and rules are met with suspicion, with fishers often arguing that laws are developed without regard for their own needs and customary rights (Reference HauckHauck 2009a; Reference HauckHauck et al. 2002; Reference SundeSunde 2003).

Frustration is particularly evident regarding small-scale illegal fishing, whereby fishers harvest resources as an important means of food and/or income for their household. Although access rights have been radically redistributed, many traditional fishers are still excluded from legal fisheries (Reference IsaacsIsaacs 2006; Reference SowmanSowman 2006). The national fisheries authority argues that there are too many people and too few fish (Reference CockroftCockroft et al. 2002), but traditional fishers argue that it is their right to gain legal access to resources as a means of sustaining their livelihoods (Reference HauckHauck 2008, Reference Hauck2009a). Consequently, traditional fishers who have been excluded from accessing formal rights continue to harvest marine resources despite the illegality of doing so. From the fishers' perspective, there is no moral obligation to obey formal law, as they perceive it to be unjust. There are few (if any) social sanctions, including from fishers with legal fishing rights, against small-scale illegal fishers, as people's “need” to fish is generally accepted. Thus, with no moral support for the law's content, resistance to state-driven rules and regulations has persisted (Reference HauckHauck 2009a, Reference Hauck2009b).

The abalone fishery, for example, which was the first commercial fishery in South Africa to be formally closed (in 2008), highlights the severity of noncompliance and the evolution of an illegal commercial fishery (Reference HauckHauck 2009a, Reference Hauck2009b; Reference Hauck and SweijdHauck & Sweijd 1999). Similar to fishers in the Norwegian and Newfoundland studies, many South African fishers differentiated between those who were harvesting abalone as a means to maximize gains (perceived to be making large profits) and those who were simply relying on abalone for their livelihood (“just getting by” or “putting food on the table”) (Reference HauckHauck 2009a). Interestingly, although it was recognized that high economic gain had motivated fishers to violate rules, social pressure was weak largely because moral support for the law's content was absent. Many of those who did not support illegal commercial fishing continued to excuse it due to the perception of unjust laws that excluded traditional fishers from the legal fishery (Reference HauckHauck 2009a). Increased law enforcement was supported, however, when outside opportunists (those who were not traditional fishers) entered the illegal fishery. People's moral distinction between legitimate and illegitimate fishers was made according to their perception of customary rights and economic need rather than according to governmental law. The legislator's authority was clearly absent, and without adequate protection of fishers' perceived rights, there was no moral support for the law's content. Consequently, deterrence—where it existed—was the dominant compliance motivation in all the case study sites investigated.

Governable Preconditions for Compliance

The South African case differs quite substantially from the Norwegian and the Newfoundland cases because the studies of the small-scale South African fisheries indicate that both moral support for the law's content and the legislator's authority are absent. Further, although deterrence is the dominant compliance motivation, even deterrence does not exist in many cases due to ineffective law enforcement and due to corruption. Consequently, noncompliance is high in all the fisheries studied and is considered a key challenge for fisheries authorities. In assessing the governable preconditions for compliance, we discuss law enforcement, empowerment and the construction of civic identity.

In South Africa, although fisheries law enforcement capacity has increased since 2000, particularly in terms of special investigations and intelligence gathering (Reference Hauck and KroeseHauck & Kroese 2006), law enforcement's ineffectiveness concerning noncompliance in coastal communities is widely acknowledged. In addition to the lack of visible patrolling, fishers generally acknowledge that corruption is extensive (Reference HauckHauck 2009a). With the national police commissioner of South Africa arrested for corruption in late 2006, there is significant mistrust of enforcement agencies. Studies have indicated that half of South Africans have little or no trust in the police and believe that most police officers are corrupt (Reference FaullFaull 2007:3). This lack of confidence in law enforcement, coupled with inadequate patrolling and visibility, has led to a weak deterrence effect. Furthermore, strong fisher opposition to law enforcement due to the perceived injustices of fisheries laws has caused direct conflict with law enforcement authorities, including violence against enforcement personnel in some coastal communities (Reference Hauck, Glazewski and BradfieldHauck 1999 conflicts have led to the need for some fisheries inspectors to carry guns and rely heavily on established partnerships with South Africa's police forces, army, and navy.

While most fishers in the case studies acknowledged that law enforcement was an important aspect of fisheries management, they argued that it cannot be implemented without broadly supported laws. All three of the fisheries studied provided concrete examples of centralized decision making that led to significant opposition by the fishers and increased animosity toward the state. The lack of empowerment of fishers, therefore, emerged as a major cause of noncompliance in these cases. Fishers in all the case study sites have argued vehemently for more equitable participation in decisions that affect them (Reference HauckHauck 2009a; Reference HauckHauck et al. 2005). An important part of this picture is that, unlike the governing systems of Norway and Canada, the young South African democracy has yet to produce coherent public welfare systems that effectively protect fishers from severe economic consequences of management decisions. This lack of an adequate welfare system (Reference Brown and NekuBrown & Neku 2005) increases the perceived need among fishers for direct influence on decisions regarding their resource harvesting rights.

During the apartheid era, a few large companies dominated the South African fisheries and provided a manageable group of stakeholders that the state could negotiate with. These state-industry relations resulted in cohesive decision making bodies for commercial industry (Reference Hutton and PitcherHutton & Pitcher 1998; Reference Raakjćr-Nielsen and HaraRaakjćr-Nielsen & Hara 2006) but largely marginalized small-scale fishers that had been excluded from the formal fishing economy by state legislation. The democratic fisheries law passed in 1998 transformed the fisheries radically by granting access rights to many of the previously excluded small-scale fishers, which resulted in almost 6,000 rights holders with legal access in 2004 as compared to 300 in 1994 (Reference van Sittertvan Sittert et al. 2006:102). However, the new fisheries law brought two significant challenges. First, many small-scale fishers were still excluded from legal fishing due to the access criteria of the new fisheries law. In the absence of functioning institutions for empowerment, access criteria had been decided at a national level and resulted in many fishers still feeling unjustly excluded. Second, the rapidly increasing number of legal entrants made the lack of institutions for empowerment into a manifest management problem because of a pressing need for effective dialogue and conflict resolution between the established big industry and the wave of new small-scale quota holders (Reference Hutton, Hauck and SowmanHutton 2003; Reference Raakjćr-Nielsen and HaraRaakjćr-Nielsen & Hara 2006). Consequently, moral support for the law's content proved difficult to establish even among those who were granted access rights.

Whereas Norwegian and Newfoundland fishers have been organized at a national level for several decades, no such cohesive organization has existed for South African fishers. Unlike the state-supported organization process in Norway, early South African attempts to organize small-scale fishers aimed to fight the state and its apartheid system, although without producing lasting organizations. No national association currently exists to represent the interests of small-scale fishers, and many small-scale fisheries are not organized at all. Some larger fisheries are organized into associations and sit on industry-government working groups, but such organization is weak in most cases (Reference Hutton, Hauck and SowmanHutton 2003; Reference Raakjćr-Nielsen and HaraRaakjćr-Nielsen & Hara 2006). The lack of sufficiently representative organizations means that conflicts of interest, most typically between the small-scale and the large-scale fishing operations, seldom transform into constructive political force. The Western and Northern Cape coasts, where the industrial fisheries are centered, saw an impetus for ad hoc organization around the specific issue of fishing rights before and after South Africa's transition to democracy. However, only recently has post democratic legal and policy development provided a political mechanism for small-scale fishers to lobby government and to raise their concerns. As a result of these policies, several community-based fishing organizations, some facilitated by a local nongovernmental organization, have emerged since 2000. The state has also in recent years initiated a few community-level co-management arrangements, although these have had limited success (Reference Hauck and SowmanHauck & Sowman 2003). Organization is still fragmented, and formal institutions for proper state-fisher communication remain to be built. High levels of mistrust between the fishers and the authorities remain. It can be argued that organizing the small-scale fishers so that all legitimate interests are properly voiced and represented is an essential first step toward empowerment of South Africa's fishers.

In sum, autonomous decision making by the state, coupled with a recent history of racism and discrimination, has resulted in weak support for the law. The strong civic identity described in the Norwegian case is largely absent in South Africa. As Reference Bentley, Habib, Habib and BentleyBentley and Habib (2008:8) state, “Identity in South Africa is a complicated matter.” They argue that in one decade, the country has moved from a complex legal system of racism to a constitutional democracy, but this transition has been embedded in social, political, and economic inequality. Nation-building, therefore, rests on redressing historical disparities while simultaneously facilitating a single national identity (Reference Bentley, Habib, Habib and BentleyBentley & Habib 2008). Although a key goal of South Africa's constitution is to “heal the divisions of the past and establish a society based on democratic values, social justice and fundamental human rights” (Constitution of the Republic of South Africa 1996: preamble), some assessments have argued that democratic economic policies have in fact exacerbated inequalities and poverty (United Nations Development Programme 2003), and some fishers have perceived that they are worse off than before (Reference Cardososee Cardoso et al. 2005). It can thus be argued that South Africa still has a long road ahead before preconditions for the legislator's authority are met in major parts of the population.

State Type Classification

Based on data about South Africa's fisheries governance, with its weak civic identity coupled with severely limited empowerment of fishers, we developed the theoretical ideal type of the unembedded state. South Africa, with its young democracy and early nation-building attempts, continues to grapple with a weak civic identity that remains fraught with inequalities. Despite the social justice agenda in new laws and policies, the social identities of South Africa's citizens remain fragmented (Reference Bentley, Habib, Habib and BentleyBentley & Habib 2008). These characteristics have resulted in high levels of resistance against fisheries laws and high levels of noncompliance. Although progressive democratic laws are in place, including the Constitution, that promote the need for social justice, human rights, and participatory governance, implementation is slow and important inequities in terms of citizens' empowerment remain (Reference Hauck and SowmanHauck & Sowman 2005). Thus, noncompliance is often motivated by fishers' economic needs and perceived customary rights. Consequently, the reliance of South Africa's compliance discourse on deterrence entails that this discourse fails to address the fundamental motivators of fisher behavior. Although deterrence influences compliance, a sole reliance on law enforcement has exacerbated conflict and animosity toward the state and has fueled further resistance through illegal fishing. Thus, building institutions for citizens' empowerment that ultimately can protect fishers' perceived rights and sustain fishers' livelihoods are key to enhancing fisheries compliance (Reference HauckHauck 2008, Reference Hauck2009a).