The New Republic | April 30, 2001
IN JUNIOR high school, I was small and got picked on. I thought one of the bigger boys might grab my wallet and run, so I punched an eyelet in the leather and attached the wallet to a loop on my belt by means of a chain. Nerdy, yes, but not, in those days, a weapons-policy offense requiring mandatory suspension.
Times have changed. Last September, Ashley Smith, an eleven-year-old student at Garrett Middle School in suburban Atlanta, brought to school a Tweety Bird wallet to which she had attached her keys with a ten-inch chain. The school awarded her a ten-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. ("We're very firm on weapons and threats," said the local superintendent.) Then there was the twelve-year-old girl expelled in Omaha, 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 elementary school in Annapolis, Maryland, that in March banned tag because it violated the "no touching" policy. Or the spate of suspensions of elementary school children who bring nail clippers to class. 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.
That schools are terrified of lawsuits. Or that, in a country of more than
100,000 schools, there will always be excesses. On all counts, you would be
right. Still, a society's excesses and absurdities say a lot about its
obsessions and dysfunctions. And, these days, those obsessions and 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. Once this mindless legalism was merely a nuisance. Now it is becoming a
menace to everyday decency in American life.
IN recent years, economists and other social scientists have begun paying attention to the remarkable efficiency of 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, Ellickson found, were much more important to the ranchers than were statutory laws about private property; in fact, many ranchers didn't even know what the statutes said.
Such tacit codes are most conspicuous in the economic sphere, where they avert or settle property disputes, and in the honor codes that allocate communal duties (for instance, serving on a condominium board). Coexisting with those are what you might call "Main Street Codes"--the rules governing how "decent" people behave in a civic context. ("Decent" people help the cops, welcome new neighbors, don't let their lawns or kids run wild.) Then there are the much less talked-about, but no less important, "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 those are the 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 all the way 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. It worked because, 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.
Almost as sensitive, and much more common, is the problem of adultery. And here Hidden Law is at its most elegant. Adultery 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!
You have here a magnificent contraption. It reduces adultery by requiring that it be kept out of sight, which greatly inconveniences adulterers. Better still, it empowers cuckolded spouses--especially women--by letting them be the ones to decide just how much hanky-panky is too much. If a woman wants to tolerate her husband's infidelity for the sake of marriage or children, she can do so without losing face. But when enough is enough, she can blow the whistle and the shocked and amazed community can aver that it has never seen such a scoundrel as her husband. That gives her a weapon and some power to set limits. Not even James Madison could have invented a better set of checks and balances.
Similarly, long before there was Comstockery or Andrea Dworkin, there were dirty books and magazines and peep shows. Some people deplored them, some people consumed them, and many people deplored them while consuming them. This was possible because Hidden Law kept pornography out of sight: downtown, near Skid Row, under the counter, and so on. Everyone knew smut was there, and everyone pretended not to have seen it. Randy boys got hold of it but kept it hidden; adults, perhaps smiling inwardly, pretended to believe that boys didn't get hold of it, so they wouldn't have to take it away.
THIS pretense was hypocritical and very useful. The requirement that porn stay where you could plausibly claim never to see it amounted to a social truce. Libertines agreed not to confront bluenoses with smut; in exchange, bluenoses promised not to go digging around in the affairs of libertines. Naturally, both parties would have vigorously denied there was any such deal. Which is precisely why it worked.
In many areas, Hidden Law and Formal Law coexist, provided that cops and lawyers and politicians stand discreetly aside and let Hidden Law work where it can. Pornography is one such area; abortion, up to a point, is another. State regulation of abortion is probably inevitable, but today, 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 and '90s, American university campuses were not known as places where the slinging of vicious slurs was a big problem. Nor were they known as places where being charged with so-called "discriminatory verbal conduct" triggered months-long investigations, draconian discipline often meted out with a presumption of guilt, federal court cases, and regular campus uproars.
From adultery to pornography to hateful speech, Hidden Law sustained exquisite pretenses and operated with miraculous finesse. There was a time when an entire churchful of people could manage not to see that a bride was eight months pregnant. Jeffrey Rosen, in his perceptive book The Unwanted Gaze, points out that privacy in any dense social environment is not just the right to shut your blinds, although it certainly is that; it is also the expectation that, up to a certain point, other people won't look, even if you happen to leave the blinds open. Hidden Law adds a less conspicuous but equally essential element to privacy: the tacit understanding that those who do look will pretend not to see. This is something of an importance instinctively known to every parent who has ever committed the sort of embarrassing interruption that we used to call, in my teenage days, a "walk-in." Without Hidden Law, life in society becomes like the home life of a 15-year-old boy whose parents never stop shouting, "Billy! What are you doing in there?"
HIDDEN Law has always had enemies, notably among puritans and certain types of social reformers who believed it was their duty to point out what others pretended not to see. But the puritans and social reformers often functioned as useful, even essential critics of the Main Street Codes of their time. Hidden Law, after all, can be as unjust or ill-founded as any other law. Think of the ancient and well-intentioned, but misguided and inhumane, social 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 can 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. On the contrary, the principles of Western law--due process, transparent rules set down in advance, equal application of the rules to all comers, adversarial representation, and so on--are among civilization's greatest triumphs. The problem comes when people decide that if a little legal process in some situations is a good thing, a great deal of legal process in every situation 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. Outside of the legal system, people realized years ago that red tape, in the form of rules and hearings and paperwork, does not ensure sensible outcomes. Among government reformers, it is now gospel that outputs, not inputs, are the best measures of success. Defenders of Bureaucratic Legalism, on the other hand, still seem to think that more discovery, more pleadings, and more layers of appeal will deliver better justice. They seem confident that the system is rational so long as all the rules are being followed, and all the i's and t's are meticulously dotted and crossed.
I recognize that there are still lawyers and judges who find ways to do the sensible thing, even if that means leaving some i undotted or risking being overturned on appeal. The pity is that law students are so often taught that cutting through red tape to reach some imperfect but reasonable resolution is naughty, like cheating on your exams. The greater pity is that law schools do not generally teach that there are many conflicts for which Bureaucratic Legalism is unsuitable. Like all bureaucratic processes, Bureaucratic Legalism is generally slow, cumbersome, expensive, inflexible, and over-centralized. In fact, if you think about most of the moral conflicts that arise between humans day to day, Bureaucratic Legalism is unsuitable for the vast majority of them.
Worse, Bureaucratic Legalism has trouble stopping itself
from sliding toward excess. Bureaucratic Legalism is, to begin with, generally
oblivious to the existence of Hidden Law; or, on the rare occasion where it
does notice Hidden Law, it regards it as hopelessly inadequate to cope with
complicated modern problems. 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 is 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. If I call you a nasty name in the dorm and you complain to the dean, I'll worry about being keelhauled in a harassment proceeding, so I may say, "Talk to my lawyer" instead of "Oops, I'm sorry." In universities with speech codes, students accused of verbal harassment have learned that apologies will be used against them. Meanwhile, the rules themselves grow ever more complex and unwieldy as administrators and lawyers and legislators try to cover their posteriors by writing rules for every situation. 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.
NOWHERE was this more apparent than in the Monica Lewinsky affair, which represented, in many respects, the outbreak of open warfare between Bureaucratic Legalism and Hidden Law. There is no question that Formal Law behaved during the affair as it was required to behave, according to its own lights. Under a provision of a law called the Violence Against Women Act--which President Clinton himself had signed--a plaintiff in a sexual harassment lawsuit was empowered to make extensive inquiries into the defendant's sexual history. And, under other laws, defendants are required to answer court-sanctioned inquiries truthfully. So, as far as Formal Law was concerned, a prosecutor was duty-bound to investigate credible allegations of lawbreaking by the president. End of story.
Yet the public was deeply and unremittingly hostile to Kenneth Starr's investigation. Indeed, the public rallied to Clinton's side. Bill Bennett and other conservatives suggested that the public, battered by decades of post-'60s cultural relativism, had grown corrupt. But the opposite was true: The public was desperately clinging to Hidden Law--to ancient norms of bourgeois decency--in the face of a frontal onslaught by Formal Law.
Remember, under the Main Street Code, if a man commits adultery and his wife either doesn't know or pretends not to know, the rest of the world's duty is absolutely clear: Shut up. When Gary Hart was confronted with adultery charges in 1987, his wife denied them and added, "In all honesty, if it doesn't bother me, I don't think it ought to bother anyone else." Everyone knew the rules. But, in the Lewinsky case, the law not only insisted on learning what went on, it insisted on penetrating every traditional veil of privacy and then broadcasting its findings to the world. The public saw this kind of inquiry as antisocial, even barbaric. And the public was right.
But the public's view found no political champions. Although liberals defended Clinton, they said not a word against the Violence Against Women Act and the rules of evidence and the sexual harassment jurisprudence that had thrust the prosecutor into Clinton's sex life. Liberals, after all, had promoted those laws--in part because many liberals view Main Street Codes as hypocritical and repressive.
More interesting, and perhaps more disappointing, was the conservative reaction. Social conservatives faced a painful choice. Because the Violence Against Women Act and its kin were already on the books, conservatives could be for a decent hypocrisy or they could be for law and order, but they could not be for both. And they were not about to let liberals get away with breaking the intrusive laws that liberals had themselves passed. Nor could conservatives sound as though they were making excuses for adultery. So conservatives were cornered into stridently advocating zero tolerance and legal formalism--never mind that, by any traditional conservative reckoning of law's proper limits, the law was way out of bounds when it demanded to know exactly what Clinton had done sexually and with whom. Thus Bennett and his allies ended up attacking the public for clinging, in true conservative fashion, to a deeper, older, wiser law.
The result was the height of perversity. By effectively making Hidden Law illegal in the Paula Jones case, Bureaucratic Legalism blocked all of Hidden Law's traditional stratagems for tiptoeing around moral conflict; then, by making confession and apology legally dangerous in the Monica Lewinsky affair, Bureaucratic Legalism blocked all Hidden Law's traditional stratagems for conciliation. Hidden Law's every move was checkmated in the name of laws that accomplished ... what? For the most part, not even the lawyers bothered to defend the law's conduct as sensible or wise. "Rules are rules," they shrugged in good bureaucratic fashion. "The law is the law. The consequences aren't our problem." No wonder the public was enraged.
TO this day, no major constituency--except perhaps the vast, unorganized public--wants to correct the laws that brought about the Lewinsky fiasco. Conservatives just hope there will be no more Clintons, while liberals hope there will be no more Starrs. Meanwhile, on a thousand smaller and less visible fronts, the war between Hidden Law and Formal Law continues. I know a young man--I'll call him Peter--who came from his native Hong Kong last year to study at an American high school. Peter's English was not too good, and his knowledge of American sensitivities was imperfect, and soon he found himself teased by another boy who loved to mess up Peter's designer hair. They had a tussle. Then, in an e-mail to a friend, Peter said he would "kill" this boy the next time the boy touched his hair. The e-mail was reported to the school, and the school warned Peter, which was fine. And then the other boy's parents filed formal charges against Peter and demanded that a court expel him from the school. Suddenly Peter and his aunt and uncle were being served documents and dealing with lawyers and being summoned to court. Peter went back to Hong Kong. In a sense, I suppose, he got his American education.
When Bureaucratic Legalism insinuates itself into
hair-mussing spats between boys, it almost automatically degenerates into a
baffling legal maximalism in which one side pulls out all the stops to accuse
and the other pulls out all the other stops to defend. If you want deterrence,
you will certainly get it this way; but zero tolerance and its like inspire
fear at the expense of common sense and flexibility. Much too often,
Bureaucratic Legalism defines fairness in terms of remote and often mutually
contradictory rules, instead of through local decision-making by quiet councils
of family, teachers, peers, and community.
FOR many years, conservatives have crusaded against the doctrine of bureaucratic government, which is, in a phrase: "You've got a problem? We've got a program." Even many liberals, if they think about it, will agree that conservatism has helped keep government out of trouble by curtailing its excesses and forcing it to answer tough, critical questions. But communitarians have yet to form any equivalent political constituency against the imperialism of Bureaucratic Legalism, which says, in a phrase: "You've got a problem? We've got a process."
It is true that Bureaucratic Legalism provokes more and more grumbling and ridicule and charges of "political correctness." Every time the wires report a story about a kindergartner charged with sexual harassment, people roll their eyes and groan. But these are feckless mutterings and ad hoc defenses. In respectable circles, Bureaucratic Legalism is still too often viewed as the only respectable alternative--and certainly better than "doing nothing," which is all that advocates of Hidden Law, if there are any, seem to propose.
How do you bolster an embattled social system that is supposed to stay out of sight? How do you persuade lawyers that the law's next big project should be to sit down and shut up? Some of the legal reforms that people talk about in other contexts (loser-pays provisions, reasonable limits on damages, and so on) might help drive people back to Hidden Law to resolve conflicts. And it would not be hard, in principle, to end the rhetorical free ride enjoyed by advocates of laws like the Violence Against Women Act. All that is required is that privacy advocates and communitarians holler publicly instead of just grumbling to themselves the next time Formal Law pokes its big nose into yet another intimate crevice.
Most important, though, is just to start noticing what's going on. Hidden Law is like water or air: Everyone takes it for granted until it is no longer reliably there. Then people start paying attention, and eventually, as the quality of life declines, they act. When I was a teenager, in the 1970s, respectable people believed that regulation was the solution to every economic problem; today pretty much everyone understands that markets can take only so much, and the debate is about how much. When I was a teenager, respectable people believed divorce was a free lunch for troubled families; now staying together is fashionable, and the divorce rate has come down. Miss Manners did wonders for etiquette just by reminding us why it matters. Something like that may be true of Hidden Law as well: Just talking about it, just noticing it--always in the abstract, of course, never in the particular (I didn't see anything, did you?)--is the beginning of bringing it back to life.