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The Power of Hidden Law
Contra Hollywood and D.C., the federal government isn’t what holds society together.


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Jonah Goldberg

Editor’s Note: The following is Jonah Goldberg’s weekly “news”letter, the G-File. Subscribe here to get the G-File delivered to your inbox on Fridays.
 

Dear Reader (including those of you who get this “news”letter through static feedback of your own personal cerebro machines).

My daughter has a class play in a couple hours and I’m trying to write this while a puppy with razor-sharp teeth tries to eat my toes. So if I seem distrac . . . — ow! Zoë! — distracted or rushed or, for those of you who have already dropped acid this morning, if I seem statesmanlike with a hint of cinnamon, that’s probably why.

Some people say that I tend to write absolute gibberish as throat-clearing before I get to the point because vests have no sleeves. I say to them: Trieste belongs to the Italians!

A Return to Hidden Law

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?”



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