Thoughts on the Law & Social Order

As a child, did you ever make up a new game and spend time trying to define the rules of that game? If so, did you ever end up fighting with your friends because, after you started playing the game, something unplanned happened and conflict broke out? After the conflict broke out, did you find that you could work it out with certain friends - without having to write down an entirely new set of rules? That your ability to work things out informally was only possible if you shared common values with the friends - and the others likely ceased being your friends after that? In retrospect, did you ever look back and realize that there was no way to anticipate every possible outcome, to write out explicit rules to cover all outcomes?

Okay, maybe not. Which is probably why you didn't go to law school later in life.

But, it is a relevant analogy as we extend the concept to a broader societal level. Unfortunately, we have devolved to the point where we frequently turn to government every time there is a problem and request new legislation to "fix" it. Never mind that the new law may be in conflict with existing laws. Never mind that the laws are frequently written with vague language and then turned over to faceless, nameless, unelected and unaccountable bureaucrats for rule-making from afar. Never mind that rule-making from afar only allows rigid rules that must apply uniformly to everyone and offer no subtlety of application that can occur at the local level where there is personal knowledge of what is needed and what will work. Never mind that societal changes may obviate the need for the legislation but the regulations will continue on regardless. Never mind that trying to legislate every issue increasingly eliminates the freedom to apply judgment to different situations, no two of which will be identical.

In that context, two recent comments on The Corner by Jonah Goldberg and Andy McCarthy offered a thoughtful perspective on how increasingly explicit laws adversely impact our social order.

Jonah Goldberg makes the first comments:

My understanding of the Hayekian social order is that life is complex but that the public, written, law should be clear. Bright lines are necessary to illuminate clear principles. It is in the shadows of these bright lines that hidden law operates. We have clear laws — and ethics — against doctors killing patients, but most of us understand that in the outer-reaches of the real world, there will be situations where the rules should be bent or even broken. But we don't then change the law to make the rare case the norm. It may sometimes be morally necessary to look the other way when a cop smacks someone, a desperate man steals something, a doctor kills a hopelessly suffering patient, but we don't rescind the laws against police brutality, theft, or — until recently — euthanasia, in response.

Andy McCarthy then offers some profound observations:

The awful thing about the hyper-lawyered society we are becoming is that there is less and less hidden law. The hidden law is where judgment, discretion and common sense reign. It's like the referee who you only notice when there's a bad call. We only think about it when there is some blunder or atrocity, but these are the rarest of aberrations.

Traditional law assumed a society's values are shared and that people will act accordingly even when there is not a precise regulation telling them what to do. When a screw-up (or worse) happened, we assumed the person — not the regulatory system — was at fault. Modern rule by lawyers, to the contrary, assumes the aberration is the rule and must be explicitly regulated against. It figures that if we account for every possibility, we won't need to trust individual judgment anymore — the system will save us from ourselves. It's what makes bureaucrats say: "What's the big deal about making the competent, honorable 99.9 percent of troops go through sensitivity training because of something screwy done by the other .01 percent?" — a .01 percent, by the way, which will do the something screwy no matter how many hours of values training you make them endure.

Rogues will be rogues no matter what the rules are. But rule by lawyers doesn't see it that way. One Nixon gets you 30 years of FISA — on the seeming assumption that if only we'd had FISA, Nixon would never have happened. Meantime, the fact is that we are simply not smart enough to anticipate every contingency and every technological development. So your one-size-fits-all FISA, in addition to being irrelevant if there is ever another Nixon, turns out also to be inadequate when email, cellphones and al Qaeda come along.

That's modern law: politically correct, unresponsive, and unreal.