Beyond the Enforcement Principle: Sodomy Laws, Social Norms, and Social Panoptics

Abstract

Social norms scholarship offers various conceptual models for understanding law's capacity to produce or inhibit particular behaviors. The current literature, however, has inadequately attended to either testing these theories through empirical research or studying law's ancillary effects on social structure and individuals' lives. In response, this Article undertakes an empirical study of the social effects of an unenforced criminal law: sodomy statutes. The Article examines the constitutive impact these laws have on individual identity, social relations, and conceptions of public space. This aspect of the study is based on ethnographic research conducted in South Africa before and after the country's sodomy laws were abolished. The findings of this inquiry provide the empirical basis for development of a conceptual model for understanding the process by which laws intersect with informal social surveillance to produce a regime in which lesbians and gays are ultimately encouraged to discipline themselves. In developing this framework, the Article calls for integrating these understandings of micro-level social relations into a macro-sociological perspective on the regulatory effects of law. The Article thus examines the influence exerted by the criminalization of homosexuality on other institutional discourses (such as religion and medicine). These connections are explored as one way of analyzing law's constitutive effects in shaping and remaking social norms.

Keywords: social norms, sociology, sociolegal, sexual orientation, gay, lesbian, sodomy, ethnography, comparative, South Africa, international, Foucault, constitutive, social control, norms, social norm, criminal, law and society, homosexual, homosexuality

JEL Classification: Z13, J71