Stuntz replies

Bill Stuntz sent me the following, commenting on my recent posting of John Breen's new papers engaging Stuntz & David Skeel's work:

For the written version of a lecture on (sort of) the same topic, see http://www.law.harvard.edu/news/2007/10/Stuntz_lawandgrace.pdf.  There's some stuff in there about different types of culture wars (Martin Luther King's kind, and the different kind many Christians have fought over the last generation), and about the ways law and government might be more grace-like.

Re the alleged different-ness of abortion (one of Breen's criticisms of David's and my paper), I believe, and I'm certain David believes though he can of course speak for himself -- that there are plenty of circumstances in which the morally and politically right move is to criminalize that sad practice.  But the question whether legal prohibition is wise, I'd argue, depends on more than the moral character of the conduct.  If a large number of young women want to end their pregnancies even if that means killing the soon-to-be children in their wombs, I do not believe any modern legal system can or will stop them from doing so without causing even greater loss of life in the process.

That is the consistent lesson of American history, including the history of abortion and abortion law itself.  Cultural change must either accompany or precede legal change for the latter to be effective.  And, as to some subjects, if we get the order wrong, we actually retard cultural change rather than advancing it.

The puzzle, to my mind anyway, is not abortion but civil rights.  Plainly, the civil rights movement shows that law CAN move the culture -- as it did: those of us who grew up South of the Mason-Dixon line in the 1960s and 1970s saw it happen.  I'm sure I don't understand all the reasons why legal change sometimes promotes cultural change and sometimes doesn't, but I do have a strong suspicion:  my guess is, the most culturally productive kinds of law are the kinds that create human relationship and community rather than sundering those things.  The civil rights movement created at least the makings of an integrated economy and an integrated political community; it was relationship-reinforcing.  Criminal prohibitions, by contrast, are relationship-destroying.  Maybe, if and when there is ever a genuinely pro-life political majority in the United States (as there clearly is not now), that majority should try to use government policies to promote enterprises like crisis pregnancy centers: means of encouraging and helping young women in distress, not hammering those who make bad choices.  At least, we should probably do that until many fewer of them want to make those choices.