Toward a Theory of Decriminalization

9 Pages Posted: 23 Aug 2010  

Richard Lempert

University of Michigan Law School

Date Written: August 20, 2010

Abstract

This brief think piece explores the topic of decriminalization. It discusses three ways in which legal prohibitions may become obsolete: scientifically, technically and morally, paying most attention to the last. The paper argues that a phenomena related to cognitive dissonance, which it calls moral dissonance, helps explain the success of a number of decriminalization efforts, a concept analogous to cognitive dissonance, and sets fourth two hypotheses: The core idea is that based on indicators of social status people are presumptively allocated moral character and based on behavior the morality of their actions is evaluated. When these two indicators clash (presumptive moral character is inconsistent with moral evaluations of action) tension is created which is ordinarily resolved by changing the character evaluation so that it is consistent with the action evaluation. When, however, enough people of presumptive good moral character engage in an action that is presumptively immoral, judgments of the morality of the action, and eventually the law itself, will often change. Two hypotheses regarding these outcomes are illustrated with examples from the Salem witch hysteria and the movements to end the prohibition of alcohol and marijuana. Applications to the current gay rights movement are obvious.

Keywords: Decriminalization, criminal law, legal change, legalization movements, drug law reform

JEL Classification: K14

Suggested Citation

Lempert, Richard, Toward a Theory of Decriminalization (August 20, 2010). U of Michigan Public Law Working Paper No. 209. Available at SSRN: https://ssrn.com/abstract=1662653 or http://dx.doi.org/10.2139/ssrn.1662653

Richard Lempert (Contact Author)

University of Michigan Law School ( email )

625 South State Street
Ann Arbor, MI 48109-1215
United States

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