Hidden Law v. Legalism

Brought to you by The New Republic Online

Last September, Ashley Smith, a student at Garrett Middle School in suburban Atlanta, brought to school a Tweety Bird wallet to which she had attached her keys with a 10-inch chain. The school awarded her a 10-day suspension for violating its zero-tolerance weapons policy. According to the Associated Press, "School officials said Ashley and her parents ... knew chains were banned." Ashley was baffled. "It's only a little chain, and I don't think it can really hurt anyone," she said. Well, rules are rules.

Is it just me, or are we reading more and more of this stuff? Last year, four kindergartners in New Jersey received three-day suspensions for pretending their fingers were guns and "shooting" at each other while playing cops and robbers. Then there was the 12-year-old girl expelled in Nebraska, last year when she brought a pair of blunt-edge safety scissors to school. (The expulsion has since been overturned.) Not to mention the Maryland elementary school that banned tag because it violated the "no touching" policy. And on and on.

You can find lots of explanations for these kinds of legalistic irrationalities. You could say schools are haunted by the specter of Columbine, or terrified of lawsuits. Or that, in a country of more than 100,000 schools, there will always be excesses. Still, a society's absurdities say a lot about its dysfunctions. And, these days, those dysfunctions frequently stem from a mindless legalism that is insinuating itself into every pore of daily life, often demolishing a quieter, suppler kind of law--Hidden Law.

In recent years, economists and other social scientists have begun paying attention to the remarkable efficiency of the unwritten customs, informal understandings, and other social codes--codes that everyone understands and no one writes down. In his 1991 book "Order Without Law: How Neighbors Settle Disputes," Robert Ellickson of Yale Law School carefully mapped how, in Shasta County, California, ranchers developed informal rules to settle problems regarding trespassing cattle. These norms were much more important to the ranchers than were statutory laws about private property; many ranchers didn't even know what the statutes said.

Coexisting with these tacit codes are what you might call "Main Street Codes"--rules governing how "decent" citizens behave. ("Decent" people help the cops, welcome new neighbors, don't let their lawns or kids run wild.) Then there are "Old Wives' Rules" that regulate conduct at a more personal level. Written on the bones of every hausfrau or yenta, these rules--such as the requirement that a man marry a woman if he gets her pregnant--are the main regulators of love and romance.

Underlying all of these are craftily balanced regimes of hypocrisy that dissolve the most insoluble conflicts, the issues of deepest moral disagreement: what I call Hidden Law. "Law" because these codes are as widely observed as rules in a statute book; "Hidden" because to make them work people must often pretend they don't exist. The trick with Hidden Law is to make social bargains whose terms include an agreement to deny that there is any such bargain.

Consider the problem of assisted suicide. Murdering people at the end of life is intolerable, and helping them kill themselves is perilously close to murder. But requiring them and their kin to endure agony to the inevitable end is also intolerable. What to do?

For centuries, Hidden Law allowed a doctor, in consultation with the patient or the family or both, to quietly help a sufferer die. Formally speaking, what happened was simply a natural death. There were knowing nods, whispered hallway conversations, bedside understandings. But there was nothing to prosecute or absolve. Everyone involved knew what had happened. Everyone also knew the importance of pretending that nothing had happened.

Adultery, too, is socially dangerous. But, while you don't want to condone it, you can't eradicate it. The answer is a Chinese box of rules. For public consumption--that is, what we tell the children--the rule is: Never, never, never! But the real rule is: If you absolutely must fool around, keep it out of sight. Within that rule is a still more subtle one: If you pretend not to do it, we'll pretend not to notice. At some point, of course, word may seep out. Then what? Here yet another rule kicks in: If the cuckolded spouse either doesn't know or pretends not to know, then no hanky-panky is going on--no sirree!

In many areas Hidden and Formal Law coexist, provided that cops and lawyers and politicians stand discreetly aside and let Hidden Law work. In the post-Roe v. Wade world, we are so used to thinking of abortion in legalistic terms--as either murder or a right--that we forget abortion can be something else altogether: a secret. For many years, and to some extent even today, Hidden Law regulated abortion by saying you could have one, but people shouldn't find out about it. I am told that a middle-aged relative of mine had an abortion as a teenager, but this is a family secret, which I therefore do not know.

Keeping abortion out of sight and mildly stigmatized is a good way to keep it legal, available, rare, and morally disreputable. I grant you this is an uneasy compromise, unsatisfying if you believe abortion is either murder or a civil right. But for pro-lifers it is better than public subsidies and TV ads for clinics, and for pro-choicers it is better than bans and coat hangers, and for the broad middle it allows life to flow peaceably around an otherwise intractable moral conflict.

Where Formal Law is all thumbs, Hidden Law often works wonders. Universities have always had speech codes; the only innovation was to write them down. In the old days, the rule for insults and epithets was: Don't say obnoxious or abusive things, but if you do, say them only rarely and in a fit of temper or drunkenness so you can apologize and we can all pretend you didn't really mean it, though we all know you did. Only if your obnoxiousness crossed an invisible but decidedly real line did the community hear or see it, in which case you got a talking-to, or even got kicked out. And before speech codes came along in the 1980s, American campuses were not known as places where the slinging of vicious slurs was a big problem.

Hidden Law has always had enemies, notably puritans and certain types of reformers who believed it their duty to point out what others pretended not to see. But the puritans and reformers functioned as useful, even essential critics. Hidden Law, after all, can be as unjust or ill-founded as any other law.

Think of the well-intentioned, but misguided and inhumane, rule that governed homosexuality. If gays pretended to be straight, straight people pretended to believe them. Any homosexual American, including me, will affirm that this Hidden Law--otherwise known as the closet--was soul-destroying. Moreover, hypocrisy for its own sake, unmoored from any useful social compact, is merely corrupt. Up to a point, therefore, puritans and reformers strengthen Hidden Law by updating it and keeping it humane.

Only recently has a really deadly enemy emerged: a systematic ideology that is equipped with powerful institutional support and has the effect, usually unintended, of damaging or demolishing Hidden Law in encounter after encounter. That ideology is Bureaucratic Legalism: the belief that the way to settle practically every conflict is through an elaborate and highly articulated set of procedures.

"Belief" is the key word in that sentence. Law itself is not the problem. The principles of Western law--due process, transparent rules set down in advance, equal application of the rules to all comers and so on--are among civilization's greatest triumphs. The problem comes when people decide that if a little legal process is a good thing, a great deal of legal process must be a lot better. Then you get Bureaucratic Legalism: the notion that if you get the process right, the outcome must also be right. Bureaucratic Legalism is generally oblivious to the existence of Hidden Law. Where it sees no existing formal rules, it strives to make some. Where it sees existing rules applied sporadically or inconsistently or hypocritically, it strives for uniformity and consistency.

You could call this the "zero-tolerance" problem. A kindergarten kiss is an "unwanted advance" and is therefore treated as sexual harassment. Squirt guns are guns and therefore violate weapons policies. Nurofen, the over-the-counter decongestant, contains a stimulant, and therefore a Romanian gymnast who takes two pills for a head cold must be stripped of her Olympic gold medal for using a banned drug.

It's tempting to see such excesses as flukes. But Bureaucratic Legalism, like all outcome-blind bureaucratic ideologies, pushes inexorably toward extremes. It cannot, by its nature, comprehend such rules as: "Up to a reasonable point, targets of slurs are responsible for swallowing their pride and getting on with life." Or: "Up to another reasonable point, if targets of slurs punch their tormentors in the nose, authorities will pretend not to notice." Or: "Beyond that point, if the authorities must notice, they will do something that seems reasonable, which they'll make up as they go along based on what they know of the situation and the characters of the people involved."

To Bureaucratic Legalism, those sorts of rules are intolerable. They are "arbitrary and capricious," or "above the law," or "taking the law into your own hands." Legalists, if they notice Hidden Law at all, sometimes say they are merely supplementing it. Often, however, their intrusion is crippling. Formal Law tends to block the cooperation and reconciliation that are essential to Hidden Law. When proliferating bureaucratic rules magnify conflict and block conciliation, they give rise to what is, in effect, antisocial law.

Daily life in a dense and diverse society is full of moral disputes and interpersonal collisions. Civilized life must be reasonably free of the fear that these everyday disputes and collisions may, at any moment and for no clear reason, suddenly explode into intolerable ordeals. In that respect, the world of hair-trigger speech codes and zero-tolerance school rules is a good deal less civilized than the world of genteel hypocrisy.