Thursday, October 26, 2006
I am not completely willing to defer to co-editor and guru Professor Childress on issues falling under the "Law & Society" rubric. Yes, he has a Ph.D. from the esteemed program in Jurisprudence and Social Policy from Cal Berkeley, but I once took a course called Law and Society from Lawrence Friedman. And it's there our random walk through professional issues takes us this morning.
One of the things that has stuck with me for over thirty years was Professor Friedman's particular exemplar of social norms as predating formal law in simple societies (the gemeinschaft to gesellschaft thing for you sociology types). As Professor Friedman relates in American Law:
Tristan da Cunha [is] a lonely, isolated barren spot of land in the middle of the South Atlantic Ocean. A few hundred people live there, growing potatoes and catching fish. A team of scholars visited the island in the 1930s to study animals, birds - and social life. The social scientists on the team were amazed to see how law-abiding the people were - if we can apply the word "law-abiding" to people living in a place where there is nothing that even looks like law as we know it. Nobody could remember a time when a serious crime was committed on the island. There were none of the trappings of criminal justice - no police, courts, judges, or jails. Nobody needed them.
* * *
Of course, in a broad sense, there was law on the island, and lots of it. There were norms of behavior, and people followed them; these norms were enforced by real sanctions. . . . Teasing, shaming, and open disapproval are also methods of punishment. They can be terribly severe, in their own way.
It is in that scholarly sense that I reacted this morning, with some relief, to the news story out of Livingston, Montana about the high school principal who inexplicably relived his male adolescence by performing what is known as a wedgie on one of his students. No doubt one of my professional colleagues has looked at this as a potential contingent fee case, but my relief is that the formal law has not (yet) intervened. Let's hear it for teasing, shaming, and open disapproval as the punishment that fits the crime. (Nothing in this post, by the way, is intended to condone the wedgor's conduct - it's one thing to horseplay with my kids - see below - and another to be in a position of trust with other people's children. I would not have objected had he been fired - which still to me is an aspect of social norming or shaming, and not recourse to law as remedy; i.e., criminal prosecution or personal injury lawsuit.)
One additional personal note on this. If you follow the link to Wikipedia above, you will find the definition of an "atomic wedgie." This actually has some bearing on our nuclear family. My practice of teaching my teenaged sons (see left) important aspects of male culture, like the wedgie, ended when (a) they got bigger and stronger than me, and (b) they figured out that if they teamed up against a common enemy, they were even more effective. Hence, it was not teasing or shaming, but, as in the Cold War, mutually assured destruction that ended the threat of the atomic wedgie in our home.
[For a look at the serious side of shaming as punishment, see Dan Markel's series over at PrawfsBlawg.]