I have always found that one of the more interesting aspects of Plato's Laws to be his suggestion that some matters are better controlled by shame than by written legislation. And while from time to time, various states do attempt to use the power of shame, it is usually in conjunction with the coercive force of the state rather than by shame alone. And, indeed, in a pluralistic and democratic world, it would seem to be very difficult to mount a national campaign over certain activities being shameful as the various factions, interests, religious groups and political parties all define for themselves just what things are shameful. Hence, the state loses the power of this tool and is left with only the sub-optimal tool of coercive force which may create more harm than good in the attempt to enforce moral behavior.
Speaking specifically of certain types of sexual activity Plato argued that custom and unwritten law were better at preventing the acts in question than promulgated laws which carry the coercive force of the state.
For if shame made their indulgence rare, the infrequency would weaken the sway over them of this mistress. So let it be the custom laid down in habit and unwritten law, that among them it is noble engage in these activities if one escapes notice, but shameful if one doesn't escapee notice--though they are not to abstain entirely. Thus our law would come to possess a second-rank standard of the shameful and the noble, a second-rank correctness, and those whose natures have been corrupted--whom we proclaim to be ``weaker than themselves''--being one tribe, would be surrounded and forcibly prevented from disobeying the law by three tribes.My intent here isn't to argue for the code of sexual ethics presented in this passage and the context in which it is found. Instead, I would like to draw attention to the way that Plato is condescending to human nature here with the implicit admission that some things will be done regardless of whether or not they are licit and that the best way to combat these things through public policy is by mores, religion and tradition rather than through making the acts in question illegal. Understanding that it is more important to have the people at large respect the law, Plato is declining to make a crime out of an activity that a large portion of the people will undertake regardless of its legality in the hopes that this activity can be curbed through the three societal pressures of religiosity, honor and the love of what is beautiful.
Which are these?
Reverence for the gods, and also love of honor, and being desirous not of bodies but of the beautiful characteristics of souls. These things that have now been said, perhaps as if in a myth, are prayers; if they should come to pass they would bring about by far the best effects in all the cities [Plato. The Laws. Trans. Pangle, Thomas. University of Chicago Press. 1980. cf. 841b-c-c].
And certainly, history teaches us that when the state criminalizes an activity which most citizens think just, the result is to both make lawbreakers out of ordinary citizens and to breed disrespect for not only the legislative body which passed the law but also for law itself. This is precisely the lesson of the Prohibition era in the US. While the consumption of alcohol on a per capita basis had been steadily declining during the late nineteenth and early twentieth century, largely as the result of preaching and temperance leagues unaffiliated with the state, consumption remained flat through the years of Prohibition and only began to decline again once Prohibition was over. The numbers plainly show that Prohibition did not have its desired effect of reducing alcohol consumption. Worse, were it not for Prohibition, a vast number of US citizens would not have turned to organized crime as vendors of first choice and organized crime would not have been further legitimized in the minds of the everyday citizen. A similar, but not identical, incident took place in South Dakota in late winter of 2006. The state legislature passed and the governor signed into law the most sweeping ban of abortion in the US since Roe v. Wade. But by the following fall, the measure had been put on the ballot as a referendum and was overwhelmingly voted down by the people of South Dakota. The citizenry, as it were, appeared to feel that abortion, no matter how morally wrong, ought to be legal. The end result of this attempt by the state to legislate morality was only to weaken respect for the governing authority.
If criminalization of immoral acts, then, is self-defeating as Plato suggested and history seems to confirm in some situations, it seems as if the state has little recourse. After all, Plato's idealized regime in the The Laws had an advantage that most governments of liberal democracies do not, complete control over religion. Whereas Plato could suggest that the ruling regime dictate the tenets of the various religious cults, modern liberal democracies necessarily do not get involved in the affairs of any religious institutions organized by the citizenry. This presents a very large obstacle to use of shame by the government as a social tool to implement policy. A democracy, a veritable city of cities where there is the presence of every possible moral system, does indeed lack a mechanism by which the state can effectively use shame alone as a tool to alter the behavior of its citizens. The citizens alone, to the extent to which they belong to different religious sects or cultures, decide what is shameful and what is noble. The end results is a large pool of different understandings of what constitutes shameful behavior. From very traditional morality in conservative blocs to the promotion of hedonism and profligacy as being manly or virtuous rather than shameful, one can find every definition of shame imaginable in a large democracy. And in many cases, those behaviors which the state has an interest in defining as shameful can be found being exulted as noble behavior.
But it also true that the US, and many other nations, have made widespread use of shame in conjunction with (rather than in lieu of) criminalization. From the public stockades and tarring and feathering of early America to more recent efforts such as plastering the faces of fathers who are delinquent in paying child support on billboards, there has certainly been an effort to use shame to good effect in conjunction with criminal law. And while there have been some successes on this level, there have also been notable failures such as the media campaign to link drug use with terrorism shortly after 9/11 and the ''this is your brain on drugs'' media blitz of the 1980s that mostly served as fodder for parody and satire. The use of shame on its own has been remarkably absent from public discourse. The only campaign I can think of is the `buy American' campaign sponsored largely by labor unions rather than the state in the late eighties and early nineties which sought to use societal norms to support American workers over the workers of foreign nations. Government involvement with this campaign was largely absent.
Consequently, outside of permutations of the use of coercive force, the state in a modern liberal democracy has very limited potential for the use of shame as a tool to shape its citizens. The state does not have control over a singular national religious cult for in a real democracy, a large number of religious cults exist independently of the state. The state does not have control over public opinion of what deeds are shameful, for in the marketplace of ideas there exists a multiplicity of various notions of what acts are noble and what acts are shameful. The state is limited to spending money on advertisements in the hopes that its plea will be heard above the cacophony of voices pushing and pulling the citizens towards one end or the other. The only times where the state is unequivocally heard above the din of competing voices are those places where the state uses its power of coercive force or in those rare situations where the state is able to design a marketing campaign that is superior to the various campaigns designed by the multitude of factions, sects, cultures, subcultures.