A comment to a previous post reads:
"As a Catholic lawyer, I increasingly question the ability of law to produce a "just" society. The question I see is usually, "What law will limit people's [or more often, corporation's] ability to destroy the environment." To which I respond that no law will do that unless we master our own consumption and other unvirtuous behavior. Our society somehow believes that one can consume sex at a rapacious rate and then assume that material consumption will not be drawn in along with that. But, unvirtuous behavior in one area will bleed into others..."
This lawyer raises a discomfiting and challenging question: what is law for? Does it govern behavior? Does it exist to give the State the ability to punish inevitable law-breaking ? If so, might it even contribute to law-breaking by assuming the worst in people (Oliver Wendell Holmes's "bad man" theory)? Or, does law ratify a cultural code, thus in some senses simply underlining what most people take for granted? If so, wouldn't law really be superfluous and culture be everything? If the comment suggests that law can't fundamentally rein in wanton behavior, then what will be the source that will instruct us how to "master our own consumption"?
A bit over a year ago, libertarian Charles Murray published an op-ed in the New York Times in which he predicted that the then-recently passed legislation that sought to limit online gambling would produce a backlash among the electorate, leading to a sound drubbing of Republicans by an intensely spiteful group of outlaw poker players. He was particularly down on the law because it sought to criminalize behavior that many, many people regarded as perfectly acceptable. The result, he argued, would be to delegitimate people's respect for law. He wrote:
"In the long term, something more ominous is at work. If a free society is to work, the vast majority of citizens must reflexively obey the law not because they fear punishment, but because they accept that the rule of law makes society possible. That reflexive law-abidingness is reinforced when the laws are limited to core objectives that enjoy consensus support, even though people may disagree on means.
"Thus society is weakened every time a law is passed that large numbers of reasonable, responsible citizens think is stupid. Such laws invite good citizens to choose knowingly to break the law, confident that they are doing nothing morally wrong."
Murray argued that the law must reflect culture, and that if the culture does not regard a law as moral, the law will be disregarded and such disregard ultimately would contribute to the undermining of the rule of law. The most frequently cited example (one that Murray invokes) is Prohibition, which fostered criminality particularly because so many people sought to continue doing what they regarded the law as unjustly having banned.
By contrast, some legal thinkers - particularly Catholic legal thinkers, such as Robert George - argue that the law establishes a moral code that will influence the culture. Such arguments hold that, even in instances where the culture may not regard the law as desirable or appropriate, the law will over the long term change the culture in accordance with the law. Such arguments are made in particular regarding laws criminalizing certain kinds of sexual behavior that have become as widely practiced as drinking or online gambling. One can imagine that the effort to reintroduce restrictions to certain widely practiced sexual behavior would be "greeted" in the same manner as Murray regards restrictions on online gambling. Indeed, absent widespread support for such law in the first instance, it's hard to know where the very impetus of such legislation would come from; given that it would have to be imposed by elites on a recalcitrant citizenry, Murray is probably right in supposing that the imposition of such law (in this case, limiting online gambling) would result in an electoral backlash.
I find myself both sympathetic with, and repulsed by, Murray's argument - sympathetic because I share the view that culture has a place of primacy, but repulsed by his simple capitulation to immorality on the grounds that "everyone is doing it" and concerned that he is uncognizant that what is acceptable can too easily become a moving target, and ultimately hollow out what we consider to be our "core objectives" - while wondering about the validity of the claim that law can decisively change culture. I find myself recalling Rousseau's critique of D'Alembert's proposal to introduce a theater into the city of Geneva, which decried the likely effect of the corruption of Genevan morals. By contrast, he noted that the morals of Parisians were already so corrupt that the theater was a bonafide good, since it distracted people from doing worse things. His argument was that we ought to protect moral cultures where they exist from corruption while acknowledging that there was no point in trying to reverse the trajectory of immoral cultures. Overall, his argument was that once the morals of a people have been corrupted, there is very little hope of re-introducing virtue.
This is, I take it, the reason that people like Rod Dreher have become increasingly drawn to Alasdair MacIntyre's call for a new kind of monastic withdrawal; why, in part, Wendell Berry withdrew from the wider society for an agrarian life and has defended a certain kind of culture to the exclusion of speaking about what kind of politics would be necessary to realize any such culture; why so many parents strive in a way to emulate the example of the Amish in shutting out as much of the modern world as possible, for example through home schooling and resisting the introduction of "popular culture" into the home; and maybe why the Pope - perhaps not uncoincidentally named "Benedict" after the founder of the monastic order that was charged with keeping the faith alive during dark times - has called for the Church to be rebuilt by its "creative minorities." Can it be that the day for the prescriptions of a political theorist has passed, and that all that those of us in the "ameliorative" professions can do is catalogue what happened as a warning to future generations? Is such a form of withdrawal and quiescence justified, or does it represent a kind of premature surrender to cultural forces that can and ought to be contested? Should we metaphorically fight the creation of new theaters or encourage our countrymen to attend their performances with abandon in order to avoid worse vices?
In so many ways, these are iterations of questions and a broader set of conversations that I seem to be having with greater frequency with young people and professors-in-training in response to the inevitable question, "what is to be done?" And, as a dutiful professor charged with ensuring a certain kind of future, I strive to give an answer that merely echoes Lasch - that not optimism, but perhaps hope, is warranted. And yet, I can't shake my own doubts that I'm asking them to do what I'm barely able to muster, which is to purse my lips and whistle in the dark.