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.
Cultural attitudes toward alcohol grew steadily more negative in the early twentieth century—until Prohibition turned the culture in the opposite direction. The number of abortions in the United States grew steeply in the years before Roe v. Wade, and for several years afterward. Since 1980, though, the abortion rate has fallen steadily and substantially—even though abortion is now a constitutional right, not a crime. Drug use is functionally decriminalized in upscale white suburbs, where high schoolers buy and sell various narcotics with no serious risk of arrest and prosecution. Poor black neighborhoods are another story: blacks are punished for drug crime at thirteen times the rate whites are punished. Yet illegal drug use among blacks is 20% higher than among whites. When politicians try to use legal rules and punishments to manage the culture, deterrence often seems upside-down.
Why is that? One possible answer comes from an odd place: Shakespeare’s King Lear, which my spouse and I had the pleasure to see (again) recently. Consider these lines from one of the play’s less-quoted scenes; Lear is raging about the upside-down character of the legal system:
Thou rascal beadle, hold thy bloody hand!
Why dost thou lash that whore? Strip thine own back;
Thou hotly lust'st to use her in that kind
For which thou whipp'st her. The usurer hangs the cozener.*
Through tatter'd clothes small vices do appear;
Robes and furr'd gowns hide all. Plate sin with gold,
And the strong lance of justice hurtless breaks:
Arm it in rags, a pigmy's straw does pierce it.
[*Roughly translated, “the loan shark hangs the fraud.”]
In short, rules designed to enforce virtue tend to do the enforcing only against the poor and lowly. The wealthy and powerful—those whose sin is “plate[d] . . . with gold”—escape condemnation. The result is that those doing the punishing have hands as dirty as those who suffer the punishment.
This is a sadly familiar problem in the history of America’s culture wars. Vice crimes and morals offenses of all sorts—prostitution and gambling, liquor and drugs, abortion and sex crimes—have been enforced against blue-collar markets, not against upscale markets. That proposition helps explain the racial disparity in today’s drug prisoner population; it also helps explain why the abortion prohibition was unraveling even before the Supreme Court decided Roe. A good deal of social science research suggests that people obey the law, when they do so, because the legal system seems fair and legitimate. Legal systems that hammer the sins of the poor while winking at the wrongs of the rich fall short of that standard.
Interestingly enough, Shakespeare’s play not only diagnoses the relevant disease; it offers a hint at a cure—another, very different approach to cultural reform. Lear’s kingdom descends into chaos and civil war as those who rule it descend into deceit and barbarism. The remedy, the story implies, is not more virtuous laws, but more virtuous rulers.
That sounds hopelessly naïve. Honest and upright rulers make for an honest and upright culture? Give me a break. But it may not be so naïve after all. Mass culture tends to follow elite culture: as the latter finds easy divorce and drug use unproblematic, the former soon follows suit. Prohibition collapsed because elite culture refused to buy into the ban on drinking. It simply wasn’t possible to convince most Americans that buying a drink was a terrible wrong when the President of the United States served liquor to his poker buddies, as Warren Harding did in the early 1920s.
The basic intuition is familiar to anyone who has observed organizational culture. Effective leaders lead by example, not by rule. If you want underlings in the organization to respond in particular ways, show them what that response looks like. They’ll see the leader’s behavior and copy it, hoping for the same success the leader has enjoyed. Cultures may work the same way.
Call it trickle-down cultural economics. Or, maybe, call it the King Lear theory of culture wars. Either way, it seems to me more promising than the approach Americans have taken to cultural battles over the last generation.