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MORALITY AND VALUES

The sociological literature recognizes that the ability of the law to produce social change depends on many circumstances. One of these factors concerns the prevailing morality and values in society (Sterba, 2004).

Patrick Devlin (1965) argued that a society owes its existence less to its institutions than to the shared morality that binds it together. Although his thesis is only partly true, morality and values affect the efficacy of the law in social change. Obviously, society could not exist without accepting certain basic values, principles, and standards. On certain issues, such as violence, truth, individual liberty, and human dignity, a shared morality is essential. However, not all our values are essential. Values about property, for example, are not necessarily essential, as many societies do not share the common U.S. value placed on private ownership. A society could own all property in common without ceasing to be a society.

In general, when the law is used as an instrument of social change, it needs the support of society. If a new law conflicts too much with prevailing values and morality, it will be that much less effective in producing change. As Edwin Schur (1968:132) once wrote,

“A good illustration of the systematic ineffectiveness of unsupported law is provided by the utter failure of legislation designed to enforce private morality.” Thus, a rather clear limitation of the law in social change appears when it tries to deal with what may be called moral issues in society. Laws prohibiting adultery, for example, have existed for centuries, but adultery remains common in the United States and elsewhere. Laws prohibiting drug use, same-sex relations, or prostitution have similarly been ineffective (Meier and Geis,

2006; Nussbaum, 2010). The well-known failure of the prohibition of alcohol through constitutional amendment a century ago is another example of the limitations of using law to change public morality (McGirr, 2016). All these examples illustrate that “behavior that is perceived of as satisfying important drives is more difficult to extinguish than behavior that satisfies less compelling drives” (Zimring and Hawkins, 1975:332).

The link between law and morality in the making and unmaking of law raises two questions: (1) What needs to be done in considering a change in the law when moral opinion is divided? (2) How can the line be drawn between that part of morality or immorality which needs legal enforcement and that which the law ought to leave alone (Raz, 2009)? In response to these questions, Morris Ginsberg (1965) suggests law should respect privacy and thus should deal primarily with externally observable acts. He contends that these are “principles of demarcation arising from the limitations inherent in the machinery of the law” (Ginsberg, 1965:238). As this discussion indicates, laws are generally more likely to produce changes in what may be called external behavior, and for this and other reasons many scholars think that the law should not try to control private consensual behavior (Meier and Geis, 2006).

Although it is difficult for law to change prevailing values and morality, several studies do suggest that such change is possible. For example, early studies on the effects of desegregation before the 1960s in situations such as “armed forces units, housing projects, and employment situations indicate that change required by law has lessened prejudice”

(Greenberg, 1959:26). Although these laws aimed to change the behavior of whites, they also sometimes changed the attitudes of whites (Harris, 1977).

 
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