The Public-Private Dichotomy in Morality and Law
Larry D. Barnett
Widener University Delaware Law School
December 3, 2009
Brooklyn Journal of Law and Policy, Vol. 18, no. 2, p. 541, 2010
Widener Law School Legal Studies Research Paper No. 09-41
The article advances the thesis that the doctrines and concepts of law are attributable to the properties of society and to the forces molding these properties. The thesis, after being illustrated with the federal Investment Advisers Act, is assessed quantitatively using data from the General Social Survey. The Survey interviews a national sample of adults in U.S. households, and in 1991, it ascertained whether interviewees classified morality as a private matter or as a public issue. The social values of interviewees on the public-private nature of morality were the dependent variable in a study that assumed (i) an activity is not explicitly addressed by law, or is explicitly protected by law from regulation, when society designates the activity as private, and (ii) the doctrines of law that are adopted to regulate activities that are designated public embody the doctrines of prevailing morality.
Because social values on whether morality is private or public comprised the dependent variable, the factors that mold these values have the potential to prevent or permit law designed to regulate socially significant activities. Logistic regression was used to estimate the relationship to the dependent variable of two sets of factors that may influence whether morality is designated private or public. One set was factors that structure (e.g., stratify) a society and that have important societal correlates and consequences. The other set was comprised of modes of thought and conduct that are cultural dimensions of a society. Notable relationships to the dependent variable were found for the structural factors of gender and, among women, educational attainment. In terms of gender, the odds that morality would be considered a private matter were approximately three-and-a-half times higher among women than among men. In terms of education, the odds that morality would be considered private were approximately three-fourths lower among women with 13 or more years of schooling than among women with 12 or fewer years of schooling. The article suggests that, because the odds of placing morality in the private sphere are appreciably greater among women, gains in the status of women may help to explain U.S. Supreme Court decisions that construed the federal Constitution to restrict government regulation of sexual activity and its incidents.
Number of Pages in PDF File: 64
Keywords: law, sociology, morality, public, private, macrosociology, investment advisors, society, rule of law, women, law and society
JEL Classification: K00, K1
Date posted: December 8, 2009 ; Last revised: August 11, 2010