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King Lear and the Culture Wars--Stuntz

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.


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Comments ( 11 )

Great post.

I posted a reply at: http://www.crimeandconsequences.com/2008/03/the_humanity_and_culture_of_cr_1.html

For some reason, your site doesn't appear to be registering trackbacks.

More virtuous rulers? Not bloody likely, as the appetite for power is what corrupts. Reduce the size and power of government, then maybe we'll get more virtuous leaders. No megalomaniacs need apply.

> "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"

Mr Shakespeare, meet Gov Spitzer.

Prohibition was not ended because elites kept drinking. There was a depression and the government needed the tax revenue.

I don't see how one can easily put civil rights legislation in either the cause or effect column. Cultural change preceded it and it preceded cultural change. Is there a "natural experiment" we can look to?

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.

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.

I am intrigued by the chicken/egg dispute here. The religious right assumes that law creates culture, thus we must elect Christian representatives to each of the Branches of Government to ensure the US moves toward a Christian Culture.

If, in fact, culture trascends law, then the composition of our Government is truly not the issue for the Church. Focusing on the souls in front of us, in our neighborhood, walking in our door must be our priority.

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.

Interesting post.

But if the two-sides of the culture war are the elite and lower classes respectively, as they are in the U.S., then your formula for nonlegal, elite-driven change can't work.

The lower classes work politically because political structures are far more permeable to lower-class ideas of, for example, orthodox morality than the social structures that support America's social elite. Given the hegemonic secularism of America's elite institutions, Christian abandonment of political "cultural war" is simple abandonment of public culture.

Now personally, I don't accept your elite-driven theory of social change. I believe that the lower classes can be quite effective in influence. Paul certainly thought that his chosen side would be drawn from the lower class, would prevail, and that to better show the glory of God. (1Co 1:26 Brothers, think of what you were when you were called. Not many of you were wise by human standards; not many were influential; not many were of noble birth. 27 But God chose the foolish things of the world to shame the wise; God chose the weak things of the world to shame the strong.) Unlike elites, Christians prevail through their weakness, their sacrifice of themselves, through God.

As you observe, elite evangelical law professors are rarae aves. You are the "not many." Christians can have no realistic hope that the secularist elites will work for the benefit of a divine moral order that they have clearly rejected in America.

The only real question is whether the non-elite effort to improve the moral culture and politics of America will be better served by abandoning politics and focusing on more powerful forms of self-sacrifice than participation in public political movements. If so, we should choose it for that reason and not out of confidence in the American elite to lead us. Of the God-rejecting elite, we should have the same expectation as Paul:

Ro 1:28 Furthermore, since they did not think it worthwhile to retain the knowledge of God, he gave them over to a depraved mind, to do what ought not to be done.
29 They have become filled with every kind of wickedness, evil, greed and depravity. They are full of envy, murder, strife, deceit and malice. They are gossips,
30 slanderers, God-haters, insolent, arrogant and boastful; they invent ways of doing evil; they disobey their parents;
31 they are senseless, faithless, heartless, ruthless.
32 Although they know God's righteous decree that those who do such things deserve death, they not only continue to do these very things but also approve of those who practice them.

Like the poster above me, I am skeptical about any move towards morality among the elites. Not only have they (almost) universally rejected a Christian worldview, but there is something about the very nature of political power that attracts the worst of society. Remember the fable of the bramble and the oak in Judges?

Are the poor unfairly targeted? Certainly. But how much of the difference the number of convictions comes from the fact that there are just more poor people, and from the fact that the rich are better able to conceal their crimes?

That said, I want to thank both of you for this blog. I am an evangelical and recent grad from law school, and am now clerking on a federal court of appeals. So I know about the weird combination (and I am interested in crime, the white-collar kind is particular). Thank you for your work; your blog is now bookmarked on my computer.

Bill, please get well soon.

As you observe, elite evangelical law professors are rarae aves. You are the "not many." Christians can have no realistic hope that the secularist elites will work for the benefit of a divine moral order that they have clearly rejected in America.