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On the Road to Permissiveness?Change and Convergence of Moral Regulation in Europe$

Christoph Knill, Christian Adam, and Steffen Hurka

Print publication date: 2015

Print ISBN-13: 9780198743989

Published to Oxford Scholarship Online: November 2015

DOI: 10.1093/acprof:oso/9780198743989.001.0001

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Theoretical expectations regarding sources and directions of morality policy change

Theoretical expectations regarding sources and directions of morality policy change

Chapter:
(p.45) 4 Theoretical expectations regarding sources and directions of morality policy change
Source:
On the Road to Permissiveness?
Author(s):

Christian Adam

Christoph Knill

Steffen Hurka

Publisher:
Oxford University Press
DOI:10.1093/acprof:oso/9780198743989.003.0004

Abstract and Keywords

This chapter presents the theoretical framework guiding the upcoming empirical analyses. This framework distinguishes between two different mechanisms of morality policy destabilization: cultural pressure imposed by social movements and noncompliance-induced legal pressure imposed by courts. These mechanisms differ from the problem pressure that typically destabilizes the regulatory status quo of non-morality, i.e. instrumental, policies. Furthermore, we argue that cultural pressure typically precedes noncompliance-induced legal pressure. Finally, we distinguish between four different types of directions of morality policy change: absorption, transmission, filtered transmission, and compensation. These are defined by the relationship between the ambiguity of the impulse, destabilizing the regulatory status quo, the direction into which this impulse hints, and the actual policy direction of the policy shift. Compensation—where changes of rules in one direction are compensated by changes of sanctions in the opposite direction—is argued to be a unique feature of morality policy change.

Keywords:   policy direction, policy shift, impulse, transmission, compensation, absorption

This chapter presents a theoretical framework for morality policy change. Starting from conventional arguments in the pertinent literature, the chapter derives causal mechanisms of morality policy change as well as explanatory factors determining its direction. It includes explicit theoretical expectations that will guide the empirical analyses in the second part of the book and allow the systematic assessment of the arguments put forward. The discussion in chapter 3 highlighted that, while simple structural and institutional explanations can serve as promising starting points for theorizing the occurrence of morality policy change, they fall short of being able to explain its direction. Neither the existence of an effective religious cleavage in the domestic party system, nor cross-national differences in terms of religiosity, or varying degrees of executive dominance can clearly be associated with distinct empirical patterns of morality policy change. This chapter presents an attempt to integrate these factors along with other elements into a coherent—and empirically testable—theoretical framework.

This framework distinguishes between (a) mechanisms of morality policy destabilization; (b) the temporal order in which different mechanisms destabilize any given morality policy status quo; and (c) the eventual direction of morality policy change. This way we create a solid foundation for the empirical analyses, able to achieve two things. First, the theoretical framework allows this book to provide answers to the questions of how morality policy change comes about and why morality policies move in a certain direction. Second, it provides us with the possibility to assess whether the answers we obtain in the context of morality policy differ somehow from other policy areas. The latter seems to be relevant because scholarship examining morality (p.46) policy tends to assume—sometimes more and sometimes less explicitly—that the explanation of morality policy change requires genuine morality policy explanations accounting for particular dynamics of morality politics. This book treats the distinctive nature of explanations for morality policy change not as an assumption but as an open empirical question that deserves explicit scholarly attention. Therefore, the book not only extends the empirical scope beyond established areas of manifest morality policy by also assessing developments in areas in which the status of moral convictions is (or has become) less dominant; but it also extends its theoretical efforts beyond manifest morality policy by explicitly discussing how potential explanations of morality policy change might differ from explanations of policy change in policy areas that are not considered to be typically dominated by conflict over first principles.

4.1 Mechanisms destabilizing the policy status quo: legitimacy vs. effectiveness

Morality policies are generally considered to be policies that are dominated by conflict over first principles and core values. Consequently, the stability of the status quo of any morality policy should depend on its perceived legitimacy. Debates between proponents and opponents of morality policy change are likely to focus on whether the specific arrangement is legitimate or not. In contrast, ‘the main alternative to morality policy is rational instrumental policy, in which we judge policies as valuable only if they help to produce desired results’ (Mucciaroni 2011: 191). In this context, any existing conflict between proponents and opponents of policy change will concentrate on the effectiveness or ineffectiveness of current arrangements in solving specific societal problems.

Developments in morality policy are frequently discussed in the context of processes of modernization broadly conceived as changing societal values and technological progress. For example, the reduced influence of church and religion, a changing relation to sexuality, and female emancipation, but also medical progress such as developments in the area of pre-implantation genetic diagnosis, can affect the perceived legitimacy of established abortion policies.

But the potential destabilizing effect of modernization is not restricted to the area of morality policy. Modernization can also affect the effectiveness of established instrumental policies. Changing values regarding the role of women in the workforce and/or men within families can, for example, also challenge policies with a dominant problem-solving character such as labour market policies or family and childcare policies. Furthermore, technological developments like the emergence of the Internet can, for example, challenge the effectiveness of policy arrangements intending to provide authors and musicians with a certain degree of copyright protection.

(p.47) Yet, while developments generally associated with modernization can destabilize the status quo of morality and instrumental policies, the channel through which this destabilization occurs should differ between the two sectors: whether or not the policy status quo is challenged in instrumental policies should depend on the perceived effectiveness of this status quo in solving a certain societal problem. Due to the decreasing effectiveness of policy arrangements in solving this problem, the pressure that eventually destabilizes existing arrangements is problem pressure. This is not to suggest that problem pressure is necessarily an objective pressure. The level of problem pressure can very well be a matter of perception. Opposing political interests can compete over raising awareness for and shaping the dominant perception of problem pressure in a certain area. Yet, while pure attempts of problem-solving can be interwoven with material interests and ideological predispositions, political conflict over instrumental policies will focus on the (in-)effectiveness of the status quo to solve a specific societal problem. In case the policy status quo is effectively destabilized and potential policy reform put on the political agenda, this should occur through a mechanism by which groups affected by the decreasing effectiveness of the status quo will try to shape a perception of enhanced problem pressure.

In contrast, the status quo of morality policies comes under pressure when it is perceived to be illegitimate (as opposed to ineffective) because it resolves a certain conflict about first principles inappropriately. Modernization and accompanying changes of societal values can result in a perception of a decreasing legitimacy of the policy status quo. Formerly restrictive morality policies can be seen to be incompatible with emerging values regarding the relative importance of individual freedoms. Formerly permissive morality policies might be seen to be inappropriate given emerging opportunities to use these freedoms that have not even be considered possible before. As the perceived legitimacy of the status quo of morality policies decreases, this status quo is destabilized by two different mechanisms. These two mechanisms can be conceptualized with the help of the distinction between voice, exit, and loyalty (Hirschman 1970). As more and more people perceive the policy status quo to be illegitimate, loyalty to this status quo will diminish: people feel less dedicated to upholding the status quo. This can result in two reactions. On the one hand, decreasing loyalty can result in societal mobilization and the emergence of social movements decrying the illegitimacy of the policy status quo (voice). On the other hand, decreasing loyalty can result in a reaction of ‘exit’, where more and more people start to ignore the illegitimate status quo and undermine its purpose through noncompliance. Whether decreasing loyalty is more likely to result in exit than in voice will crucially depend on the expected costs of the exit strategy. How high are the sanctions associated with noncompliance and how likely is it that these sanctions will (p.48) be applied? If an exit strategy is likely to result in draconian sanctions, a voice strategy will be a more attractive option to most people.

The extent to which a strategy of voice and/or exit is dominant will affect the type of pressure exerted on the policy status quo. Emerging social movements will exert cultural pressure on the policy status quo. In contrast, exit strategies in the form of noncompliance are likely to lead to the activation of the judicial system: when public authorities accuse individuals of noncompliance, courts are activated to decide over the destiny of these individuals. Under certain circumstances, this activation of the judicial system can result in legal pressure on the policy status quo in case the legality of the status quo is challenged by rulings. Of course, this is not necessarily the case. The prosecution of noncompliance can just as well result in rulings imposing sanctions on the noncompliant actors. Yet, when judges can be convinced of legal arguments highlighting the inappropriate resolution of a conflict between the policy status quo and a related codified legal norm—such as a specific basic right—noncompliance will result in legal pressure on the policy status quo. According to proponents of an attitudinal model of judicial decision-making, modernization and according value changes are likely to affect judicial decisions in this regard (Segal and Spaeth 2002). While the German Federal Constitutional Court, for example, still saw the punishment of homosexual practices by law to be compatible with constitutionally enshrined basic human rights in the 1950s,1 it seems highly questionable whether today’s Constitutional Court would evaluate the constitutionality of the same law in the same way. Figure 4.1 illustrates these three different mechanisms putting pressure on the policy status quo.

It is important to emphasize that we only expect a particular type of legal pressure, namely noncompliance-induced legal pressure, to be typical for morality policies. In Germany, for example, the Federal Constitutional Court can also review the legality of laws that have not yet been passed (abstract review of statutes). While legal pressure emerging through this channel can just as likely affect morality (e.g. taxation of homosexual couples) as it can affect instrumental policies (e.g. the party finance system), legal pressure emerging as a result of noncompliance, prosecution, and resulting adverse rulings by the court should be a unique feature of morality policies due to the mechanism described above. Of course, empirically there can be interdependencies between voice and exit as social movements can push for individual rights litigation, and specific court rulings can become focal points for social movements (Epp 1998). Analytically, however, these two channels can be distinguished rather clearly.

(p.49)

Theoretical expectations regarding sources and directions of morality policy change

Figure 4.1. Theoretical framework

Furthermore, it is not trivial to differentiate between social movements (relevant in the context of morality policies) and interest groups (more relevant in the context of instrumental policies) empirically. While the line separating the two concepts can be blurred, there seem to be organizational and operational differences between the two. First of all, social movements can be considered to be less cohesive and to possess a lower degree of formal organization than interest groups (Tarrow 1994, as cited in Lichbach 1997). Second, only social movements are likely to be able to operate in a way that will successfully impose cultural pressure on the policy status quo. Of course, for interest groups moralizing political debate by decrying the policy status quo to be illegitimate—because, for example, restrictive tobacco policies would interfere with rights of individual freedom—can be chosen strategically. Yet, if this position is not backed up by broader parts of society, the strategy is unlikely to result in any significant amount of cultural pressure.

These arguments can be translated into expectations about the respective type of pressure to which the policy status quo is subjected in morality policy areas and instrumental policy areas.

  • Expectation 1: Cultural pressure on the policy status quo through social movements should typically occur in morality policies but not in instrumental policies.
  • Expectation 2: Noncompliance-induced legal pressure on the policy status quo should typically occur in morality policies but not in instrumental policies.
  • Expectation 3: Problem pressure on the policy status quo should typically occur in instrumental policies but not in morality policies.

(p.50) Only when all three expectations are met can we consider morality policy change to be in fact the result of a unique agenda-setting dynamic that is different from the one dominant in instrumental policies. In contrast, when the status quo of instrumental policies is subjected to noncompliance-induced legal pressure, this unique character of morality policy has to be questioned. Similarly, when the status quo of euthanasia regulation—an area which we typically see as a manifest morality policy—is destabilized by interest groups emphasizing the ineffectiveness of the restrictive policy status quo in solving the societal problem of rising costs of health care in the light of aging populations receiving expensive treatments that only prolong patients’ lives minimally, we would also question the uniqueness of mechanisms leading to a destabilization of the policy status quo in morality policies.

These expectations are not tautological in any sense. They would be if we defined morality policies according to presence of moral frames in the political debate, which is often done in relevant research contributions. In this case, expectations that in areas of morality policy the emphasis on the illegitimacy of the policy status quo dominates would be a truism.2 Similarly, the expectation that for instrumental policies the emphasis on the ineffectiveness of the policy status quo could by definition never be disappointed. Yet, this book adopts a different perspective on morality policies: the defining criterion is not the dominant framing but instead the regulatory substance. This perspective on morality policy allows for the empirical assessment of the distinctiveness of morality policy change.

4.2 Chronology of mechanisms destabilizing the policy status quo

On the basis of these mechanisms, we are able to derive expectations about the specific chronology of the occurrence of these different types of pressures. Specifically, we hypothesize that, typically, the status quo in morality policies is first put under cultural pressure exerted by social movements and only later under legal pressure by adverse rulings from courts. This hypothesis rests on two assumptions. First, the argument makes the assumption that modernization is a gradual rather than a sudden process. This means that the share of the population subscribing to new values will increase gradually and not suddenly. Second, judges are assumed to be relatively conservative elites that (p.51)

Theoretical expectations regarding sources and directions of morality policy change

Figure 4.2. Timing of different types of pressure

try to ensure societal acceptance of their rulings by avoiding adopting rulings that reflect values of extreme fringes of society. Figure 4.2 illustrates these assumptions.

As the process of modernization gradually unfolds, the share of the population with a ‘new’ or ‘changed’ set of values increases. More conservative groups will either never switch to such a new set of values or will do so very late in the process. The intensity of value conflict crucially depends on how far ‘new values’ have spread throughout society. This affects court rulings in two ways. First, drawing on an attitudinal model of judicial decision-making, judges can be convinced of the argument that the policy status quo interferes (p.52) with other codified legal norms inappropriately when they themselves subscribe to a new set of values (Segal and Spaeth 2002). Provided that judges are correctly assumed to be rather conservative elites, this is likely to occur rather late in the process of modernization. Second, provided that courts indeed adjust their rulings to dominant societal views (Kahn 1999), they will only destabilize the policy status quo through the adoption of critical rulings after new values have spread through large parts of society. This is why we can expect legal pressure to emerge rather late in the modernization process, that is well after social movements have emerged putting cultural pressure on the policy status quo (expectation 4):

  • Expectation 4: In morality policies, cultural pressure voiced by social movements should typically occur before legal pressure on the policy status quo.

4.3 Directions of morality policy change

This theoretical framework distinguishes between impulses destabilizing the policy status quo bringing policy reform to the political agenda and the occurrence of actual policy change. As discussed above, impulses destabilizing the policy status quo can take different forms. In instrumental policies, impulses can be expected to take the form of problem pressure. In the context of morality policies, impulses take the forms of cultural and noncompliance-induced legal pressure. As any of these pressures increase, the probability that the current policy status quo will not be shifted in any direction decreases. The question remains, however, in which direction the policy status quo will be moved.

The first element influencing how these directional impulses (in the form of problem pressure, cultural pressure, or legal pressure) will affect the direction of policy change is the extent to which different impulses imply the same direction of policy change. Is the direction of policy change suggested by an impulse (or by a certain combination of impulses) unambiguous? Or do different impulses push and pull the policy status quo in different directions? Figure 4.3 illustrates hypothetical situations characterized by different degrees of impulse ambiguity.

When two impulses suggest a change of the status quo in completely opposite directions, the level of impulse ambiguity is maximal. When there is only one impulse that suggests one clear direction of policy change, the level of impulse ambiguity is minimal. Between these two extreme cases, it is also possible to think of intermediate levels of impulse ambiguity, where one or several impulses suggest neither a unique, nor completely opposing directions of policy change.

(p.53)

Theoretical expectations regarding sources and directions of morality policy change

Figure 4.3. Impulse ambiguity

To describe the relationship between the directional ambiguity of impulses affecting the status quo and the actual resulting direction of policy change, we distinguish between the absorption, compensation, transmission, and filtered transmission of impulses. An impulse is absorbed when, despite the fact that cultural, legal, or problem pressures have destabilized the issue and brought it onto the political agenda, the status quo persists. In contrast, impulses are transmitted when they are simply guided through the political process and the status quo is moved exactly in the direction suggested by the impulse destabilizing the status quo in the first place. Alternatively, compensation refers to cases where the destabilization of the status quo is translated into policy change that does not correspond to the exact direction implied by the impulse. Instead, the impulse is deflected by the political process into another direction. Finally, when the initial impulse is ambiguous and the policy status quo is moved in one of the directions suggested by the impulse, we speak of filtered transmission (as opposed to deflection which represents a directional compromise between two ambiguous directions). Under filtered transmission, only part of the initial impulse is actually taken into account by the political system and transmitted into policy change. These concepts are illustrated in Figure 4.4.

4.4 When to expect absorption, transmission, compensation, or filtered transmission?

The question is, of course, which direction of policy change can we expect once the regulatory status quo is effectively destabilized and the specific policy issue has entered the political agenda? We argue that the probability and direction of policy change should depend on the interaction between two factors. On the one hand, it depends on the direction in which the impulse is trying to push the status quo as well as the ambiguity of this impulse. On the (p.54)

Theoretical expectations regarding sources and directions of morality policy change

Figure 4.4. Political processing of impulses

other hand, it depends on how difficult it is to organize political consensus of shifting the policy status quo into any direction (Table 4.1).

Existing research suggests that arriving at political compromises is particularly difficult in the context of morality policies, because these policies deal with issues of first principle (Mooney 1999). This is not to say that reaching political compromise about instrumental policy is an easy undertaking. Yet, reaching such compromise in the context of manifest morality policy is generally assumed to be even more difficult. If this assumed enhanced difficulty of political compromise is in fact an important feature of morality policy, then it

Table 4.1. Expected directions of policy change

Difficulty of compromise

Normal

Enhanced

Instrumental policy

Morality policy

Impulse

Ambiguous

Filtered transmission

Absorption

Unambiguous

Transmission

Compensation

(p.55) should affect patterns and dynamics of morality policy change. In fact, we argue that unless there is a clear and unambiguous impulse destabilizing the status quo and suggesting a clear direction in which the status quo is to be shifted, morality policy change will hardly be achieved. More specifically, if proponents of morality policy change differ with respect to the direction in which they wish to push the regulatory status quo, the enhanced difficulty to reach a compromise in these fields will make actual policy change unlikely. Instead, the ambiguous impulse will be absorbed by the political process and the status quo—now under pressure from different directions—will be maintained.

Of course, the absorption of ambiguous impulses can also occur in the context of instrumental policy. Yet, since the difficulty to reach compromise between actors that try to shift the status quo in different directions is not as high in these areas of instrumental policy, governments—or legislative majorities—will be better able to ignore one side of the argument and only adopt a filtered transmission of the ambiguous impulse. After all, the problem addressed with the specific instrumental policy needs to be solved. Showing inaction or the inability to act will not be an opportune move for governments. In contrast, such a filtered transmission is unlikely to be politically viable in the field of manifest morality policy due to its requirement to reach broad political consensus in order to be able to prevent societal conflicts and adopt stable policy.

Finally, if the impulse is unambiguous and proponents of policy change are only confronted with attempts to conserve the regulatory status quo and not attempts to shift it in another and different direction, this should also affect the direction of policy change. In the context of instrumental policy, we expect the impulse to simply be transmitted by the political process. While the extent of change will sometimes be greater and sometimes be somewhat more modest, the political system will need to present a solution to the specific problem to be solved. In the light of an apparently clear solution (all proponents of change are suggesting to shift in the same direction), governments are likely to follow these proponents of change and transmit the respective impulse. The prevalence of an unambiguous impulse, of course, does not imply that there is no need for compromising between reform opponents and status quo conservers. For instrumental policies, such compromise solutions can be achieved relatively easily, due to the technical-instrumental nature of the underlying conflict structure. Hence, we generally expect the adoption of reforms that—depending on the need for compromise—remain somewhere in between the extreme poles of status quo preservation and the proposals advanced by reform advocates. In other words, for instrumental policies, unambiguous reform impulses can be expected to result in more or less far-reaching transmissions of reform demands, depending on the need to compromise and the strength and scope of reform pressures.

(p.56) While for instrumental policies, compromise solutions can be achieved by balancing the degree of change, such options are less feasible for manifest morality policies. For the latter, the underlying conflict structure hardly allows for easy bargains between reformers and conservers, given the fact that conflicts are related to first principles and basic values rather than to instrumental issues of policy calibration or policy design. As a consequence, we expect such simple transmissions rather to be the exception than the rule for manifest morality policies. Although proponents of change are pressing for a clear direction of change, the political system is much less able to ignore the arguments brought forward by actors fighting for the conservation of the existing status quo than it would be in the context of instrumental policy. Therefore, the political system is unlikely to simply transmit impulses in morality policy.

Instead, the need to compromise between reform advocates and status quo defenders requires more complex arrangements of compensation. While compromises within one and the same regulatory dimension (rules or sanctions) are difficult in the presence of fundamental value conflicts, we rather expect policy shifts that compensate changes on one dimension of regulation with balancing moves on the other dimension. Specifically, this means that where an unambiguous impulse hints towards a more permissive style of regulation, an adoption of more permissive rules providing individuals with greater individual liberty will be compensated with the adoption of an increase in the level of sanctions that apply in case this (now enhanced) individual liberty is exploited and the new (now more permissive) legal boundary overstepped.

  • Expectation 5: A two-dimensional compensation of impulses should be more typical for morality policies than for instrumental policies.

Such a compensatory character can also be ascribed when diagonal impulses suggesting to shift the policy status quo towards authority or towards permissiveness result in only one-dimensional policy changes, for example only the rules are relaxed. This can only reflect a compensatory logic, however, if the sanctions that apply in case the new rules are violated are set at a very high level anyway and there is consequently no real need or even room to further enhance the level of sanctions.

4.5 Evaluating the validity of our expectations

To evaluate the validity of these expectations, the second part of this book presents empirical analyses that do not only focus on areas of manifest morality policies. The empirical analysis also covers areas of latent morality (p.57)

Theoretical expectations regarding sources and directions of morality policy change

Figure 4.5. Types of challenges for the policy status quo

policies, in which conflicts over first principles can emerge but are generally no longer dominant and covered up by instrumental concerns about the effectiveness of the specific policy arrangements.

Of course, when placing such latent morality policies on a continuum between the two poles of policies that can be destabilized through questions of legitimacy (manifest morality policies) or effectiveness (pure instrumental policies) (see Figure 4.5), one could think of policies that would be even farther on the side of effectiveness (e.g. policies of technical standardization). Yet, comparing manifest and latent morality areas has the advantage of providing a particularly tough test of the assumption that dynamics in manifest morality policies are different from political dynamics in other policy fields. If the empirical analysis makes a case for the distinctiveness of morality policies in this setting, then this distinctiveness should be even more pronounced between manifest morality policies and non-morality policies.

Notes:

(1) German Federal Constitutional Court (BVerfGE) 6, 389—Judgement of the First Senate—10 May 1957—1 BvR 550/52.

(2) Furthermore, we also refrain from defining morality policies strictly for the presence of religious values and religiously based arguments in the political discourse because this would give rise to problems of endogeneity when using the role of churches as a major explanatory variable.