pageok
pageok
pageok
King Lear and the Culture Wars:
Over at his new blog, Less Than the Least, Bill Stuntz offers up an interesting post on the influence of law and culture on lawbreaking. From the introduction:
  The two sides in America's long-running culture war disagree about much, but agree about something very important: both sides believe law shapes cultures, not the other way around. Sometimes, it seems to work that way. The civil rights legislation of the 1960s reinforced and accelerated a dramatic change in white culture. Race discrimination, once routine, came to be seen as the awful thing it is.
  But surprisingly often, it works the other way around.
Waldensian (mail):
One of my favorite professors of all time (I took several of his classes at Virginia). I always thought we would disagree even about the color of an orange, but I suspect he has this one right.
3.11.2008 10:28pm
Jacob (mail):
...both sides believe law shapes cultures, not the other way around.
Even if one concedes the simplified two-side theory, why does he believe either side is so stupid as to believe this?
3.11.2008 11:58pm
glangston (mail):
Better said in A Conflict of Visions by Sowell and The God in the Machineby Paterson.
3.12.2008 12:10am
hls09:
Quick question for anyone who can answer it: Why is this alleged phenomenon of disproportionate criminal punishment of the poor not merely one discrete example of the society-wide (and therefore incredibly obvious) observation that the rich have it better off?

The poor die at younger ages, suffer more health problems, travel less, don't get to go the opera as often, have more trouble procuring nutritious food, eat less fancy meals, play less tennis, drive worse cars, etc., etc., than the rich.

Similarly, the poor get worse legal representation because they cannot afford better. The poor cannot pay the extra costs required to conceal criminal behavior because they cannot afford to do so.

The point of the phrase from King Lear is not that legal prohibitions are worthy of criticism because they inherently disfavor the poor, but that — as Lear is, at this point in the play, re-discovering the simple, essential ways in which all humans are equal — we all have sins and that the enforcer of the laws, and the rich who are able to evade them, should remember that. That's an argument about natural or ultimate justice, rather than a useful guide for crafting drug laws.

Of course virtuous leaders and public figures will encourage good behavior. But even if all our leaders abstain from murder, it doesn't follow that we shouldn't criminally prohibit it.
3.12.2008 12:27am
TruePath (mail) (www):
I think the language used here is leading us to mischarachterize things. This is not really a problem of good versus bad but of the greater ease of condemnation.

Notice the problem here isn't universal. It's not a problem about murder, theft or any other crime with victims. It's about 'morals' offenses and the problem fundamentally stems from the fact that there is a strong incentive not to stand up for things like drug use, prostitution, or pornography.

Even if a majority of the population is ok with smoking a joint at a party or what not it only takes some small percentage of people's family members, bosses and church leaders to disapprove to create a strong incentive not to stand up to protest morals legislations. Even if you disapprove of the activity and only thing people ought not to be legally punished for it standing up and saying this risks disapproval. But of course to most effectively galvanize the populations support of these moralistic laws they need to demonize the activity and that means portraying it as problem of the most disparaged aspects of society.

In other words it's the fault of people like Spitzer for never once having the courage in his career for standing up and saying he thought prostitution should be legal. Thankfully I think the internet and it's attendent elimination of obscurity (those pictures of you smoking the joint in college will be somewhere) will help to end this.
3.12.2008 1:09am
one of many:
Aside from his09's comment there is an interesting american phenomena at work here, the differentation between the rich and the powerful, no longer are the 2 synonomous. Power does not mean wealth and wealth no longer means power - who wields more power Bill Gates or Clarence Thomas? Yet prior to his recent book Thomas' net worth was probably 6 figures and he definetely wasn't a millionaire much less a multi-billionaire. I wasn't going to mention Spitzer but since he has been brought up, as one of the powerful Spitzer seemed to delight in using his power against the wealthy and powerless not the poor and powerless.
3.12.2008 1:48am
Ken Arromdee:
Similarly, the poor get worse legal representation because they cannot afford better. The poor cannot pay the extra costs required to conceal criminal behavior because they cannot afford to do so.

There's one difference, though. The poor don't get good housing because everyone needs housing, and being poor constrains their choices.

But the only reason the poor need legal representation in court is that we have decided that poor people (as part of all people) must be subject to the court system. If we're imposing the cost on them, it seems we have some obligation to ensure that they're treated fairly--an obligation that doesn't exist when we're not the ones imposing the cost.
3.12.2008 3:33am
Temp Guest (mail):
When discussing "the poor" it's worth considering the issue of causality. Might not many of "the poor" be poor because they drop out of school, generate and bear children out of wedlock and at young ages, fail to maintain a steady workforce presence, drink and use drugs to excess, and commit significant amounts of crime starting at young ages? Might not many of the problems many of "the poor" experience be due to their own poor choices and character flaws?
3.12.2008 9:40am
Sk (mail):
"The two sides in America's long-running culture war disagree about much, but agree about something very important: both sides believe law shapes cultures, not the other way around...
But surprisingly often, it works the other way around."

What? My perception of the law has always been: legal academia has a certain culture (far different from any broader "American" or "public" culture), which determines who gets into schools, who thrives in those schools, who is hired to teach in those schools, and who succeeds after school. That culture therefore shapes the academic, judicial 'culture,' from which judges are selected. Those judges then make decisions based on this long self-selecting mechanism.

(note that this phenomenon isn't restricted to the law. The military has a particular culture, academia at large has a particular culture, the business world does, the entertainment world does, and so on and so on).

In other words, I have always assumed 'culture' shapes the law (though by culture I mean that of a narrower subset of the American culture). I'm surprised there is an alternative view, frankly.

sk
3.12.2008 10:21am
my2centshere:
"Quick question for anyone who can answer it: Why is this alleged phenomenon of disproportionate criminal punishment of the poor not merely one discrete example of the society-wide (and therefore incredibly obvious) observation that the rich have it better off?"

One possible answer: Because a disproportional amount of violent crime is perpetrated by the poor and most people believe (correctly I think) that we should treat violent criminals harshly.

Not very PC, but I think there's some truth here.
3.12.2008 10:51am
Thorley Winston (mail) (www):
When discussing "the poor" it's worth considering the issue of causality. Might not many of "the poor" be poor because they drop out of school, generate and bear children out of wedlock and at young ages, fail to maintain a steady workforce presence, drink and use drugs to excess, and commit significant amounts of crime starting at young ages? Might not many of the problems many of "the poor" experience be due to their own poor choices and character flaws?


Good point and if I might add that it also raises the question about the "injustice" of the enforcement* of vice laws against things like drug use, gambling, and fornication falling disproportionately against the poor. If such vices are more likely to lead to the poor becoming or remaining poor(er), it's kind of hard to work up sympathy for a defendant who argues that it's unfair that he couldn't afford a better lawyer to defend him on a drug charge because he spent the money on crack.

* I'm talking only about the argument that such laws are "unfair" because the poor are most likely to be the ones prosecuted while the rich can afford better legal representation and not the issue of whether such laws are just on other grounds.
3.12.2008 1:34pm
Fub:
I think TruePath hit the nail on the head here.

TruePath wrote at 3.12.2008 12:09am:
... This is not really a problem of good versus bad but of the greater ease of condemnation.

Notice the problem here isn't universal. It's not a problem about murder, theft or any other crime with victims. It's about 'morals' offenses and the problem fundamentally stems from the fact that there is a strong incentive not to stand up for things like drug use, prostitution, or pornography.

... But of course to most effectively galvanize the populations support of these moralistic laws they need to demonize the activity and that means portraying it as problem of the most disparaged aspects of society.
I've lost count of the number of people I've known who indulged numerous vices in their youth (and who publicly condemned the prohibition of those vices), yet after embarking upon an ordinary career path changed their tune in a very specific way. Regardless of whether they ceased their vices, they all ceased public condemnation of the prohibitions even if they would privately express it.

Their rationales ranged from the somewhat understandable to the politically paranoid. But all were of the form "I can't say that now because I have to be respectable."

I first noticed most starkly the widespread and near clinical politically paranoid extremity over 35 years ago. I helped with a petition campaign for an initiative to decriminalize cannabis. A huge number of young adult professionals would take an interest, express encouragement and thanks, yet decline to sign the petition.

Their typical reason was of the form: "If I sign this, they'll know my name and they will investigate me" (the paranoid extreme), or "my colleagues and friends will find out" (the common social fear), followed by "I will lose my job or social position or career. I can't take that chance right now."

The petition was successful, although the election was not. I think the petition was carried by older people who felt some confidence of their place in society.
In other words it's the fault of people like Spitzer for never once having the courage in his career for standing up and saying he thought prostitution should be legal. Thankfully I think the internet and it's attendent elimination of obscurity (those pictures of you smoking the joint in college will be somewhere) will help to end this.
Spitzer is an illustrative example of the extreme phenomenon. Unless he is simply insane, he must have sometime made the cynical and obviously false presumption that consensual vice laws are always only enforced against socially unaccepted or marginal people, and that the socially respectable can always roll over on some socially marginal person to save themselves. His own vice crusades reflected that presumption -- he prosecuted prostitutes, but not their socially prominent clientele.

That cynical presumption is only false by one word: always. In the typical case the presumption is correct. Spitzer got nailed by presuming that one word.

Whether Spitzer's downfall will inspire similarly vulnerable politicians to denounce corrosive vice laws (or at least not grandstand on them) has no obvious answer. Not many years ago, Republican Governor Gary Johnson of NM was lambasted by liberal Democrats for doing precisely the opposite of what Spitzer did: living clean and sober, and denouncing vice laws.

The social and political spiral is (approximately):

-- political demagoguery against vice,

-- leading to more harsh and socially corrosive vice laws to socially marginalize more people,

-- leading to fear of being socially marginalized if one speaks out against the demagoguery,

-- leading to more political demagoguery against vice.

Breaking the spiral requires a considerable quantum of moral courage exercised by a significant number of people in "respectable" social positions.
3.12.2008 2:20pm