JONAH GOLDBERG: A RETURN TO HIDDEN LAW
A Return to Hidden Law
http://www.nationalreview.com/node/372282/print
Longtime readers of the G-File might think about taking a speed-reading course. They also may remember that, about 14 years ago, I used to write about “hidden law” a lot. I returned to it in today’s column on the Arizona brouhaha.
Hidden law was a term coined by Jonathan Rauch, who basically updated a lot of ideas familiar to readers of Burke, Hayek, Oakeshott, and Albert Jay Nock. Calling himself a “soft communitarian,” Rauch put it very well so it’s worth quoting him at length:
A soft communitarian is a person who maintains a deep respect for what I call “hidden law”: the norms, conventions, implicit bargains, and folk wisdoms that organize social expectations, regulate everyday behavior, and manage interpersonal conflicts. Until recently, for example, hidden law regulated assisted suicide, and it did so with an almost miraculous finesse. Doctors helped people to die, and they often did so without the express consent of anybody. The decision was made by patients and doctors and families in an irregular fashion, and, crucially, everyone pretended that no decision had ever been made. No one had been murdered; no one had committed suicide; and so no one faced prosecution or perdition.
Hidden law is exceptionally resilient, until it is dragged into politics and pummeled by legalistic reformers, at which point it can give way all at once. The showboating narcissist Jack Kevorkian dragged assisted suicide into the open and insisted that it be legalized (and televised). At that point, the deal was off. No one could pretend assisted suicide wasn’t happening. Activists framed state right-to-die initiatives, senators sponsored bills banning assisted suicide, and courts began issuing an unending series of deeply confused rulings. Soon decisions about assisted suicide will be made by buzzing mobs of lawyers and courts and ethics committees, with prosecutors helpfully hovering nearby, rather than by patients and doctors and families. And the final indignity will be that the lawyers and courts and committee people will congratulate themselves on having at last created a rational process where before there were no rules at all, only chaos and darkness and barbarism. And then, having replaced an effective and intuitive and flexible social mechanism with a maladroit and mystifying and brittle one, they will march on like Sherman’s army to demolish such other institutions of hidden law as they encounter.
The enemy of hidden law is not government, as such. It is lawyers. Three years in law school teach, if they teach nothing else, that as a practical matter hidden law does not exist, or that if it does exist it is contemptibly inadequate to cope with modern conflicts. The American law school is probably the most ruthlessly anti-communitarian institution that any liberal society has ever produced.
I’ve long believed there’s a strongly held view in Hollywood and D.C. that says that without the government in Washington American society would descend into anarchy almost instantaneously. People are walking around downtown Peoria. They are perfectly calm and rational. Mr. Jones says “good morning” to Mrs. Smith. “Nice weather, huh?”
Then, as if Landru had replaced the noontime chime with the code phrase “the federal government is gone,” someone shouts, “The federal government is gone!” and anarchy immediately ensues, with rape and rapine fast on its heels. Upon hearing the news that Washington stands idle, Mr. Jones attempts to ravish Mrs. Smith. His dastardly plan is only foiled because Slim Pickens ordered the ol’ number six.
And I’m not talking about panic over a nuclear strike or the news that Cthulhu has started his horrible feast on Capital Hill. I mean that I think there’s a notion — more like an unarticulated assumption — that it’s the government in Washington that holds society together. This is somewhat implied in the way Obama talks about government as the word for the things we all do together and his efforts to sow bowel-stewing panic over the government shutdown. It’s implicit in all the talk — from Republicans and Democrats alike — that the president needs a “vision” for the whole country and that he “creates” jobs.
The simple fact is that if the federal government disappeared tomorrow — and the media didn’t report it — it would take days or even weeks for many people to even learn about it. And the news would not come from marauding barbarians on motorcycles laying waste to communities. It would mostly spread with the news that there’s something wrong with the Post Office. And if somehow you could keep the Post Office going — and with it the checks from the treasury — people could go months without murdering, raping, or even running with scissors.
A liberal might respond, “Aha! You concede the point that people need those checks from government!” Well, yes. But the government also needs those people to need those checks. My point isn’t about wealth-transfers, it’s that normal people don’t look to the federal government for much direction or meaning in their lives.
90 Percent of Life
Assuming you’re not a congressman, a mattress-tag cop, or a mutant telepath held captive in an underground research facility in New Mexico, your interactions with government are extremely limited. This is so despite the ever-metastasizing role of government — all government — in our lives. Indeed, the main role the state has in our lives doesn’t involve interventions we can see, but restrictions we can’t. The state limits the range of choices available to us until, very quickly, we forget we ever had the choice in the first place.
Still, most of your daily actions are governed by hidden law, not statutory law. How often do your arguments — with the dry cleaner or chiropodist — lead to a cop showing up? If you go to a fancy restaurant and ask for toasted cheese sandwiches but the waiter talks you into a plate full of snails, you work it out on your own; you don’t call a lawyer.
And if you’ve ever talked to beat cops you’d know a vast amount of their time is spent avoiding enforcing the law. They tell street-cart vendors and angry customers to “work it out.” They come up with solutions based on hidden law, not statutory law, in order to avoid the paperwork (this is one of the few instances I can think of where government red tape is a good thing).
And that’s arguments. The truth is most of our life isn’t spent having arguments, it’s spent having conversations. Indeed all of human civilization is a kind of conversation. Michael Oakeshott:
As civilized human beings, we are the inheritors, neither of an inquiry about ourselves and the world, nor of an accumulating body of information, but of a conversation, begun in the primeval forests and extended and made more articulate in the course of centuries. It is a conversation which goes on both in public and within each of ourselves.
If you’ve ever been to a good party, what makes it great is enough shrimp cocktail and single-malt scotch. But also lots of different conversations, each with its own flavor. One of the most deadly things you can do at a party is ask everyone to quiet down and have one big conversation. Suddenly, what was a fun party feels like a therapy session or an intervention, sort of like when Janice ruined her mom’s funeral in The Sopranos.
The reason I am always harping on the glories of federalism is that America is like a giant party with a million quirky, fun, intense, rewarding conversations going on all at once. When you leave people to talk things out, they tend to do it without the help of the government. And the last thing we need is the state coming in, trying to pick winners and losers in those conversations — or simply telling people to shut up.
In a sense, Left and Right are on the wrong side of this stuff. At least by stereotype, conservatives prefer order and conformity while liberals like rebelliousness. And yet conservatives — those evil voluptuaries of states’ rights and localism — are the ones making the case for diversity. For instance, I have nothing but sympathy for the folks who want to, say, “Keep Austin Weird.” But I have nothing but contempt for the people who have that bumpersticker on their Prius but say the exact opposite with their voting. Maybe they support policies close to home that they think will help keep Austin weird, but when they vote for Democratic governors and senators and congressmen, never mind presidents, they vote for the crowd that wants to unleash evermore armies of humorless reformers on the land. Worse, while they’re for keeping Austin weird, they support policies that would deny, say, Arizona from being its own kind of weird.
But let’s be fair. Conservatives are often doing the same thing now. I have more sympathy for them because A) I’m conservative and I share many of their goals and B) the Left started it and conservatives are simply fighting back. Once it was established that we are to be ruled by legalistic reformers, it was inevitable that the Right would find its own to fight fire with fire.
And that’s what’s so terribly depressing about all of this. We live in a country where more and more people are terrified to work things out themselves in a conversation with someone they disagree with. That’s why I didn’t like S.B. 1062 — because people on the right found it necessary and because people on the left made it necessary.
It’s a simple point, but the difference between conversations and arguments is this: Both sides win in a conversation. Arguments are zero sum.
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