Three Ways in Which Law Acts as a Means of Social Control: Punishment, Therapy, and Education Divorce Law a Case in Point

Abstract

If law is to act on human behavior, it should provide an environment which will enable the deviant or potential deviant to internalize the values embodied in the law or it should provide an environment which will force the deviant to conform by systematically placing blocks in his achievement of his deviant values, whenever he violates the law. In searching for environments both social and psychological which lead to breakup one is confronted by an impressive number of items which have been related to breakup.' Though the list is long it is thought that all of these factors actually act upon the family members in one of four ways. These have been called defacto breakup by conflict, de facto breakup by indifference, de facto breakup by opportunity, and continuance by fiat. Breakup by conflict can be exemplified by the case in which the husband was raised with the value of leisure as paramount and the wife with the value of status. wife might view the husband as a shiftless time-waster while the husband rnight view the wife as a vain status-striver. Other things being equal, this will lead to a higher probability of breakup. Breakup by indifference has been most thoroughly discussed in connection with Ogburn's theory2 that the family is losing its functions. less the husband and wife depend on each other the greater are their chances of splitting up. Breakup by opportunity refers to the number of contacts between members of the opposite sex. Thus, where the husband's job throws him into contact with women (e.g., traveling salesman), where husband and wife are separated (e.g., during wars, etc.) a high probability exists for one of the spouses to meet other potential spouses. Other things being equal, this is likely to lead to breakup. fourth mode is that which is called continuance by fiat. It refers to the fact that a high value is placed on marriage per se. In our society the Catholic considers marriage a sacrament and therefore places a great value on marriage per se, and, other things being equal, the very religious Catholic would be less likely to divorce. These four modes are thought to encompass all of the factors which relate to family breakup. At the same time they are sufficiently different so that the same law might have entirely different effects depending on which of these four modes characterizes the family. Laws will be analyzed as mechanisms of social control in terms of their ability to affect these four modes of marriage breakup and stability. * This work was done while the writer was a member of a joint research team formed by the Family Study Center at the University of Chicago and the University of Chicago Comparative Law Research Center. Much use has been made of formulations of Max Rheinstein and Nelson N. Foote, although they are not responsible for the particular interpretations given in Lhis paper. I Such factors as industrialization, urbanization, happiness of parents, personality factors are illustrative of the types of factors which are thought to influence family breakup. Ernest W. Burgess and Harvey J. Locke, Family: From Institution to Companionship (2nd ed.; New York: American Book Co., 1953), pp. 407-429. 2 William F. Ogburn, The Changing Functions of the Family, in Robert F. Winch and Robert McGinnis (eds.), Selected Studies in Marriage and the Family (New York: Henry Holt and Co., 1953), pp. 74-81.