My last paper as a history major, as a segue from being a classicist student to law school, was on Augustus’s attempt to affect Roman social behavior with laws. The heart of the query was on the effectiveness, and meaning, of the laws he endorsed touching on adultery and child rearing (the Lex Iulia de Ambit, Lex Iulia de Maritandis Ordinibus, and Lex Iulia de Adulteriis Coercendis). I think my conclusion was vague; the law does not lead society, nor society necessarily the law – they are intertwined and inform each other.
My true classicist brother pointed me to a good book on the general issue of law and social morality back then: David Cohen’s Law, Sexuality, and Society: The Enforcement of Morals in Ancient Athens. It was a great help.
I wish this article had been out, back in 2000. It is Christopher W. Schmidt’s “Freedom Comes Only From The Law”: The Debate Over Law’s Capacity and the Making of Brown v. Board of Education. The article looks into law’s force in establishing social behavior and opinion.
Since the late nineteenth century, most Americans agreed that racial progress would be achieved by education rather than legislation. Improving race relations required attacking prejudicial attitudes rather than discriminatory actions—the logic being that the latter was only the product of the former. In the years leading up to Brown, a pervasive, commonplace argument against civil rights legislation and judicial rulings was that beliefs, not laws, dictated behavior. This was the assumption of the Plessy Court—that laws were “powerless to eradicate racial instincts” and “social prejudices.” This was the claim captured in the popular dictum put forth by Yale University sociologist William Graham Sumner, which encapsulated the prevalent social-Darwinist assumption of the Jim Crow era, that “stateways” were powerless to change “folkways.”
