Legislation of Morality
LEGISLATION OF MORALITY
In The Division of Labor in Society ( 1984), Emile Durkheim advanced the idea that the distinctive sociological feature of crime is society's reaction to it. Durkheim was writing at a time when Lombroso's view on the heritability of criminality dominated scientific and popular opinion. Science sought the etiology of crime in the biology of the criminal, in atavism—crime viewed as a reversion to primitive, ancestral characteristics. From this perspective, the harmfulness of criminality was taken for granted. Given his more comparative and anthropological outlook, Durkheim rejected the idea that crime was condemned by society because of its harmful consequences or because the deviant act was in itself evil. For Durkheim, many things that attracted the severest reprimands of society were objectively quite harmless, such as the neglect of the food taboos or the neglect of religious observance. In his view, the major issue was the integrative function of law, not the individual sources of deviance. Indeed, in Suicide ( 1951) he characterized individual acts of despair as expressions of social structural pathologies. He also noted that the integrative function of law extracted far more from the condemnation of the lower class thief than from the middle-class embezzler—even though the latter's financial gain was greater and the social consequences of his acts much more adverse. From these observations Durkheim concluded that the societal reactions to crime and deviance were not based on rational models of the incapacitation or deterrence of the offender. In contrast to such utilitarian thinking, the societal reaction to crime was marked by an impassioned moral condemnation. This common feeling of moral outrage was a mark of the collective consciousness of society, particularly in highly cohesive, simple, or "tribal" societies. The condemnation of crime exercised the collective outlook, and it reinforced the group's collective beliefs and values. In short, the criminal was a scapegoat, and if he did not exist in fact, given his functional importance, he could be invented.
With the advance of more competitive and technologically sophisticated societies, the division of labor resulted in a partitioning of the collective consciousness across various elements of society and resulted in the rise of legal codes with less appetite for vengeance and with a greater investment in the reconciliation of competing interests. Hence, for Durkheim, punitive criminal law was the hallmark of primitive societies, which enjoyed a "mechanical" division of labor (i.e., a homogeneity of work functions), while reconciliatory civil law characterized advanced societies with an "organic" division of labor (i.e., a diverse but mutually dependent specialization of tasks). The former societies were characterized by brutal executions, the latter by written contracts. Other nineteenth-century authorities tackled the role of law in society. Marx and Engels shared Durkheim's insight that the thing that needed explaining was not why people break laws—the problem of criminology—but why people make laws—the problem of the sociology of law (Cain and Hunt 1979). In their view, law was primarily an instrument of control and a source of both mystification and legitimation. As the urban merchant classes expanded their private estates into the countryside, these classes employed laws to transform the existing common rights of the rural peasants to the harvest of the forest—to deer, fish, pasture, firewood, and so forth—into crimes of theft from private property (Thompson 1975). In addition, the rise of capitalist agriculture, which was associated with the international trade in wool, cleared the British and European common lands of subsistent peasant farmers. Under contract law, the disenfranchised peasants became independent juridical subjects, able to engage in agreements to sell their labor for wages in the cities, although the urban working classes, having been displaced from subsistence on rural estates, had little choice, aside from starvation, but to work in factories.
Durkheim's position on law as an expression of the collective consciousness and Marx and Engel's views on law as an instrument of control continue to exert influence on contemporary thinking about law and morality. Where Durkheim treated the law as an expression of general social consciousness, Marx and Engels viewed it as an expression of a class consciousness, although, to be fair, Durkheim's model of collective consciousness held for a sort of mythic primitive society—akin to Hobbes on the "natural" state of man confronting the war of all against all or akin to Veblen or Freud's primal horde. In each case, the ideal type was an imaginative, indeed a fictional, reconstruction of human origins. The division of consciousness by class would have been possible for Durkheim in advanced societies—even if it constituted a state that he classified in The Division of Labor in Society as "abnormal" and even if it was the sort of awareness he wanted to overcome through the "corporations" that cut across class divisions and that Durkheim speculated might form the political nucleus of a future society.
In North America, sociological theories about the legislation of morality took a distinctive turn with investigations of "moral panics," "victimless crimes," and "moral entrepreneurs"—all of which figured importantly in the labeling theories of the 1960s. The studies investigated distinctively morally charged issues and stressed the influence of both social movements and the mass media in the construction of the criminal law. By way of example, Sutherland (1950) examined the role of "moral crusaders" in the context of the sexual psychopathy laws that were enacted in 1937 and thereafter in eleven northern states, California, and the District of Columbia. These laws provided for indefinite incarceration in hospitals for the criminally insane for anyone pronounced by a psychiatrist to be a sexual psychopath. Retrospectively, this diagnosis is not based on a discernible medical disease. In fact, many psychiatric categories are only labels for things we do not like. Nonetheless, a wide series of jurisdictions, with one eye to reforming sexual deviants, enacted laws based on this "disease."
There was a threefold process underlying the creation of these laws. First, the laws were enacted after a state of fear and hysteria followed newspaper accounts of several sex crimes committed coincidentally in quick succession. In these states there was a rush to buy guns, guard dogs, and locks and chains, reflecting widespread evidence of public fears. Second, these fears were fueled by news coverage of related sex crimes in other areas and other times in history and of sex-related behaviors and morality (including questions regarding striptease) and by letters to newspaper editors and statements made by public figures. The third phase was the creation of committees to study "the facts" of the sex crimes and "the facts" of sexual psychopathology. These committees, though initially struck on the basis of collective terror, persisted long after the fear and news stories subsided. They resulted in a presentation of briefs to legislative bodies, particularly by a new class of medical experts—psychiatrists. The community hysteria was legitimated by the identification of the crimes as a form of disease by the psychiatric professionals. The legislatures responded to public fears by passing laws to control the offending parties, in this instance by making sexual psychopaths subject to incarceration under psychiatric supervision.
A second important illustration is the history of the American prohibition movement, reported in the classic sociological study by Joseph Gusfield—Symbolic Crusade (1963). From 1919 to 1933 an amendment to the American Constitution outlawed the manufacture and sale of alcoholic beverages. The law was passed after decades of lobbying by members of the numerous "temperance movements," who originated predominantly from fundamentalist Protestant stock, largely from rural areas, and initially from middle-class backgrounds. They were the upholders of the Protestant ethic and valued hard work, self-reliance, and sobriety.
Gusfield argues that as America industrialized during the nineteenth century, the traditional rural settlers experienced a loss of social status compared to the new urban classes and experienced a challenge to their traditional values as urban development introduced increasingly nontraditional immigrants. The temperance movements were a form of status politics designed to reaffirm the prestige of a lifestyle. In the early period (1825–1875) the temperance movements pursued their objective through education, persuasion, and the reform of social conditions that caused excessive drinking. With increasing urbanization and greater European immigration, however, the tactics changed from a policy of socialization to one of coercive reform. The temperance movement became a prohibition movement. And when conservative forces came to dominate the political scene in America following World War I, the value of sobriety was to be achieved coercively—by outlawing booze. In Canada prohibition was approved in a national plebiscite in 1898 and enabled by federal law in 1916. The federal law allowed provinces to implement their own legislation, and all but Quebec outlawed booze, although booze continued to be manufactured for export—usually illicitly to the United States—and was available in Canada by prescription in pharmacies. The Canadian experiment in forced temperance ended in the mid-1920s, and the United States repealed Prohibition in 1933.
Gusfield's work is important for several reasons. It stressed the idea that legislation was "symbolic"—that it reflected the values of distinctive social groups and that such groups struggled to have their views insinuated into state legislation. Unlike Marx, who viewed political struggle as class politics, Gusfield stressed "status" politics—the advancement of group respectability or status by seeking to have the group values enshrined in law. Gusfield further implied that laws, particularly in the field of "victimless crimes," were symbolic in another sense. Instrumentally, prohibition was a terrible failure. It created huge markets for organized crime, and liquor consumption appears to have proceeded in spite of the law. Hence, the condemnation of insobriety was merely ritualistic (i.e., symbolic) because it did not extirpate drunkenness nor seriously inhibit liquor consumption. Similar arguments have been raised regarding the criminalization of narcotics, prostitution, and pornography—classical "victimless crimes," the markets for which thrive on a demand that seems little impeded by legal proscription.
The labeling theories of the 1960s developed the Durkheimian emphasis on the importance of societal reaction to crime (Kitsuse 1962; Lemert 1967) and identified some of the processes by which conduct was successfully labeled as criminal or how it successfully evaded such a label (Becker 1963). Theorists explored the self-fulfilling prophecies of deviant labels and the role of stigma in stabilizing rejected identities (Goffman 1961, 1963). The role of moral entrepreneurs was identified; these Weberian charismatics personified the struggle against evil and expedited legal change by campaigning in the media on the dire consequences of everything from dance halls to crime comics to television violence and marijuana use. Research on societal reaction proliferated. Studies focused on the manufacture of mental illness (Scheff 1999; Szasz 1961, 1970), the creation of witchcraft as a form of labeling (Erikson 1966; Currie 1968), the selective policing and the resulting social construction of delinquents (Cicourel 1968), the political hysteria that underlay political show trials (O'Connor 1972), the role of hysterical stereotypes in the criminalization of narcotics (Cook 1969; Lindesmith 1965), and the mythification of the Hell's Angels in the popular press (Thompson 1966).
The studies of this period had an insurgent flavor and a barely concealed contempt for legal structures and institutions that drew the line between conformity and deviance in an arbitrary fashion. This was particularly true in the context of legislation outlawing "victimless crimes." John Stuart Mill had established the ideological pedigree of this critique when he suggested that the democratic state's sole justification for limiting the freedom of an individual was that the person's behavior was harmful to others. Legal critics in the 1960s and 1970s objected to the extension of the law to cover vices and immoral activities since the participants in these acts, it was argued, were autonomous beings who had chosen them voluntarily and so were mischaracterized as either criminals or victims. The argument was that participants were not criminals since their behavior was not harmful to others, and they were not victims since their fates were chosen voluntarily (Schur 1965). Since these activities flowed from free choice in democratic states, how could they have been made unlawful? The answer lay in the fact that conservative forces led by moral entrepreneurs had stampeded democratic governments through wild allegations that the activities in question were so harmful that they struck at the very fabric of society and that however voluntary or self-inflicted the corruption, its control and eradication was justified for the sake of society itself. More recent studies have taken a different turn. Studies of the law-and-order campaigns associated with the resurgency of political conservatism have led sociologists to ask different sorts of questions.
Where Gusfield stressed that legislation might take on a symbolic aspect that reflects the interests of discrete social groups, recent work suggests that laws may mystify the social conditions that give rise to them and consequently may result in social control that is sought for altogether different reasons than the ones identified in the legislation. Taylor (1982) argues that many crime waves, moral panics, and anticrime campaigns are orchestrated in response to basic social conflicts and shifting economic realities and that they function to misdirect our attention away from social contradictions. Three noted British investigations lend support to this view. Hall and colleagues (1978) argue that the moral panic in British papers over street mugging in the early 1970s that resulted in calls for tougher jail sentences and more law and order in England mystified a basic structural shift in employment patterns that occurred during attempts to dismantle the British welfare state. In the late 1960s and early 1970s there was a conservative political movement in both America and Great Britain to curb state investments in public welfare—to "down-size" governments and to privatize public institutions. There was a certain amount of conscious political resistance in the labor movement and in socialist political quarters. However, the control culture succeeded in redefining the political resistance into an issue of individual lawlessness that required tougher policing, particularly of those persons who experienced the greatest amount of social dislocation as a result of fiscal restraint—poor youth, minority groups, and immigrants. The reports of street "muggings" imparted to England the imagery of lawlessness from the American ghetto, creating the impression that there were dramatic increases in street crime, that the crimes were disturbingly "un-British," and that they were symptomatic of a wider threat to Great Britain's collective security as witnessed by violence in industrial disputes (fights at picket lines) and misconduct among soccer fans.
Having defined the problem as individual lawlessness, the conservative solution of more law and order, greater investment in policing, longer jail sentences, and so forth, occluded the problem of youthful unemployment that resulted from conservative fiscal policies and that contributed to theft and other petty rackets in the first place. In this interpretation, moral panics have a material foundation in everyday experience, but where the earlier labeling theorists viewed the panics as causes of legal change, the British theorists suggest that panic was the result of social change. Sensationalism over crime in the popular media legitimates the introduction of coercive legislation that frequently suspends normal democratic liberties and replaces parsimonious forms of control with more punitive measures. In the case reported by Hall and colleagues (1978), penalties for petty street crimes increased dramatically as the public, the judiciary, and the politicians were treated to hysterical excesses in the popular press of violent youth running amok.
A similar structural argument is advanced by Stanley Cohen in Folk Devils and Moral Panics (1972). This study examines the role of the media in the re-creation of the "mods" and "rockers." There have been a series of distinct trends in youth culture in both America and Great Britain over the last four or five decades—the zoot suiters, the Teddy Boys, the beats, the skin heads and punks, the soccer hooligans, and the motorcycle rebels—all of whom expressed antiauthoritarianism and youthful rebellion. What seems to have set off the postwar youth cultures was society's relative affluence, which created conditions for distinctive consumption patterns supporting unique fashion styles, musical tastes, and recreational opportunities. The mods and rockers were motorcycle-riding youth groups who appeared in the British seaside resorts in the middle 1960s. As Hunter Thompson discovered in his study (1966) of the California Hell's Angels, the British newspapers made a feast of the mods' antics, typically exaggerating and reporting spuriously on their activities. Cohen (1972) stresses that the function of the news hysteria was to create a kind of rogue's gallery of folk devils—vivid, even fearsome images that registered collective fears about the youth, their mobility, and their independence, which served as collective reminders of what youth should not be.
In this approach, moral panics are an ongoing, recurrent, and predictable aspect of the popular culture. From this perspective, they are not considered the handiwork of individual moralists who may or may not decide for personal reasons to pursue a moral campaign. Moral panics are orchestrated when individuals feel compelled by their sense of the collective consciousness to repair a breach in the ideological fabric of society. Typically, either such persons are affiliated with institutions that have a longstanding investment in moral control—church organizations, community groups, political parties, and so forth—or they occupy roles as self-appointed arbiters in democratic societies—academic experts, professional journalists, and publishers.
Also, moral panics and the legislative changes they engender track important shifts in social structure fairly closely. This is the conclusion of Pearson's Hooligan: A History of Respectable Fears (1983). Pearson reports that the current "public" appetite for law and order, for stiffer justice, and for a return to the past are recurrent themes in Western history. The historical perspective suggests that the feelings that, from the perspective of crime and delinquency, things are at an unprecedented nadir, that the present conduct of society compares poorly with the way things were in a previous golden age, that the family is falling apart, and that the popular entertainments of the lower classes are criminogenic, are recurrent in every major period of British history from the 1750s to the present. Over time, the rhetoric of decline has an uncanny similarity. Pearson's point is that crime fears or moral panics occur when the legitimacy of state control over the working class is somehow challenged or brought into question. In the nineteenth century the British working class was only partially integrated into the political process. Consequently, their consent to government—which was dominated by the propertied classes—was usually testy. In the 1840s in particular, there is an apprehension in philanthropical writings about the working-class "dodgers," bold, independent delinquents viewed as potential revolutionaries who might fuel the Chartist movement and overthrow the private ownership of property. In this context, philanthropists prescribed education and policing to create internal restraints in the interest of protecting property.
From this perspective, class tensions were misinterpreted in the public press and by middle-class politicians as "rising crime and delinquency," and the middle-class solutions were recurrently more "law and order" on the one hand and education on the other—that is, more police repression and control, a return to birching, a removal of the un-British elements of the population, a repudiation of meretricious American culture, and a return to the tranquility of the golden age when people knew their place.
It is difficult to give an overall assessment of how the processes of legislating morality discovered in the labeling period in America can be integrated with the class conflict approaches stressed in the recent British studies. Certainly, there is no reason to believe that the class antagonisms that characterize British society are as developed in North America, nor that these would be a monolithic source of legal change. On the other hand, there is also no reason that the search for systematic sources of moral panics as effects of social change could not be undertaken in North American studies. Since the early 1980s it has become clear that the preoccupation with abortion, pornography, the funding of acquired immunodeficiency syndrome (AIDS) research, gay bashing, and the Equal Rights Amendment in U.S. public discourses is related to important trends in family composition and female labor force participation. For the tradition minded, the suppression of access to abortion, pornography, and the Equal Rights Amendment (ERA) as well as lethargy in dealing with AIDS, all seem to be an attempt to turn the clock back toward patriarchal families. For more progressive feminists, access to abortion on demand, suppression of degrading pornography, and the confrontation of the epidemics of sexual and physical violence against women and children are essential ideological matters for the insurance of greater female social and economic advancement. In both cases, the public imagery of epidemics of fetal massacres on the one hand, and epidemics of incest and female abuse on the other, are not the products of idiosyncratic moral campaigns but arise in the context of profound social structural transformations—suggesting the need to develop a convergence of theories of symbolic interests and structural shifts that have developed independently to date.
As we enter the new millennium in American politics, it is clear that the contemporary issues in moral discourse are distinct from the earlier focus on the criminalization of things such as drugs and alcohol. Political observers have coined the term "culture war" to characterize the attempt of the "Moral Majority" of Christian right-wing politicians to topple "the moral decline of the nation" and to substitute "moral sanity" in the form of widespread laws consistent with their religious beliefs (Scatamburlo 1998). Despite the dominance in the U.S. House of Representatives and the Senate by leading proponents of "born-again" politics over the past decade (Shupe and Stacey 1982), the New Right has effectively capitulated and virtually despaired of incorporating its views into American public and personal life (CBS 1999). Its proponents have failed repeatedly to achieve significant change. Specifically, they have failed to reintroduce prayer into the public school system—at the very time when American schools were racked by senseless shootings by disgruntled students. They have failed to curb the use of abortion as a method of birth control, failed to oust a philandering president despite a relentless investigation by a special prosecutor, and failed to curb the spread of sexual explicitness and capricious violence in everything from video games to Hollywood movies in spite of the fear that a great deal of youthful violence appears to be copied from mass media images. Further, they have failed to protect the hegemonic status of the traditional, heterosexual family and its access to spousal benefits from incursions by lesbian and gay lobbyists. They have made headway in downsizing the welfare state, but this has been achieved to varying degrees throughout the Western democracies without the same moral agenda.
The other side of the culture war has been associated with the rise of "identity politics"—a growth in social movements among racial minorities, women, and sexual minorities during the past two decades. In an attempt to recenter knowledge and power on the basis of experiences overlooked by male, Eurocentric, and heterosexual perspectives, claims have sometimes been made that gynocentric, Afrocentric, and gay voices have epistemological and moral standpoints that are superior to those which have traditionally overshadowed them (Seidman 1994, p. 234). Though such claims are extravagant, they signal cultural conflicts over basic moral and social questions and foster power politics resulting from the emancipation of racial minorities, women, and gays and lesbians This explains in part the Moral Majority's sense of crisis, its backlash against political correctness, and its desire to return to the previous equilibrium. Schlesinger argues that the crisis is further fueled by the feeling that the common presuppositions that are required for democracy are imperiled by the spread of "strident multiculturalism," radical ethnocentrism, and the undermining of the very possibility of a common American identity (Schlesinger 1998). The matter is only intensified by the shifting racial composition of America. Maharidge's The Coming White Minority (1996) documents the apprehension among white Californians about becoming a minority group in their "own" state, a trend true of America as a whole in the larger global perspective. The social processes are not unlike those identified by Gusfield in the analysis of the temperance movement, suggesting that the social forces explaining the cultural conflicts are not unfamiliar to students of moral panic. What is less well acknowledged, and what might be important to keep in mind for resolution of what is regrettably labeled the "culture war" is the following. From the start, the Moral Majority campaign tended to be exclusionary and fundamentalist (Snowball 1991). Democracy requires coalitions and a broad basis of mutual support. When politicians in a democracy take their policies from religion, moral condemnation overshadows political dialogue. Political decisions are not arrived at through compromise and mutual dependence but through faith. Given these tendencies, "average citizens" have failed to assent to the moral absolutes required by politics based on religious righteousness, and the movement appears to have run its course (Weyrich 1999). Whether the culture war is amenable to an alternative, more inclusive, multicultural resolution remains to be seen.
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