I recall claims that interpersonal violence went down in western Europe prior to the restriction of firearms there, and similarly that many labor laws trailed general practice rather than led them. That is, child labor was already on its way out when laws against it came in; workweeks were already greatly reduced in many areas, and legislation served to scoop up those areas where there was no competition for labor and employers could abuse their workers, to bring them in line with the general beliefs of the society.
It sounds plausible, certainly, but is it true? My quick search on labor laws seem to come from sources biased one way or another. It would likely apply in many areas: zoning, treatment of women, product safety, drinking, slavery. It would make sense that societies would not put forth a lot of energy in moralities that were not generally shared.
Sense, yes. But humans do not always act sensibly, especially when it comes to telling everyone else what to do. What do you think? Do we know anything of hard evidence for or against this theory? Does law tend to be enacted only when there is considerable agreement already in the larger culture? Is this no longer the case in the last few years or few decades, when decisions are made at high levels about fairness and virtue, which are then imposed on the rest of us? Or was it worse 2-7 centuries ago?
Historians assume that a law against a practice is evidence of that practice. There are some exceptions -- witchcraft, say -- but in general there's thought to be little reason to ban something if everyone agrees it is wrong (and therefore refrains from it).
ReplyDeleteThe USSC decisions in Loving and Roe v Wade both came at the tail end of liberalization of miscegenation and abortion law. I'd be tempted to add Obergefell to the list as well. The main issue with both Roe and Obergefell verses Loving being overreach more than being ahead of popular attitudes.
ReplyDeleteI would assume that the real thing to look for is prosecutions and convictions, rather than just the laws being on the books. For example, in my state, the official age of consent for sex is 18, but in practice consensual sex is never prosecuted for people 16 and up... and almost never for 14 and up, if they're both under age. The old law was age 16 for consent, and that's what is for the most part still done (it was changed in the 1990s "for the sake of the children" (TM) ).
ReplyDeleteI think what you'd see is that a rash of prosecutions happens when the moral codes are shifting, and one side is trying hard to push the needle by legally harassing the opposite side. Either the codes hold up, i.e. it deters enough people that the moral shifting reverses, or they collapse-- as is happening right now with small-scale marijuana possession; it's formally illegal, but few-to-none will actually enforce the law. Alternately, one side gets a new law passed and then uses it to bludgeon their adversaries into submission-- this is how the desegregation fight happened, for example. It became too risky/painful for, say, landlords to be "mildly" or "de facto" anti-black, and most weren't truly committed racists, so they dropped the behavior when the punishments started happening. Eventually, nobody even remembered what the fight was all about anyway.