Politics & Policy

Restoring The “Hidden Law”

Making sense of the Philadelphia beating — and the social order as well.

Imagine if a friend, or even a son or brother, told you, “Hey, guess what I did last night? I stole a car and then I stole a cop car, I shot at some cops (presumably family men), and resisted arrest every step of the way.” My response would be: A) “I hope they beat your ass”; B) “Gee, did they beat your ass?”; C) “How come they didn’t beat your ass?”; or D) “Come with me right now so I can take you down to the station so they can beat your ass.” There is no E) none of the above.

I’m a big believer in the “asking for trouble” school of justice. When stunt skydivers die, I admit, I feel less sorrow than when old ladies get hit by cars or children die of some disease. When snake-handlers get bitten by venomous snakes, I will often say, “Well, that’s what happens sometimes to people who handle snakes.” And, when a career criminal steals a car, forcing cops to chase him through city streets endangering the lives of the police and civilians; resists arrest; steals a police car; and then fires on policemen, injuring one — I can’t get bent out of shape about the fact that a bunch of cops beat the guy up. In fact, I think the cops should have beat the guy up. In fact, I even think law and order depends on cops to beat up people like Thomas Jones. More of this in a moment.

Jonathan Rauch, one of my favorite writers, has been arguing for quite a while now that there should be two kinds of society, conventional and legal — and only rarely should the twain meet. He says that we must obey what he calls “hidden law,” which he defines as “the norms, conventions, implicit bargains, and folk wisdoms that organize social expectations, regulate everyday behavior, and manage interpersonal conflicts.” Once you start looking for examples of the hidden law, you will see it everywhere. The shotgun rule for car seats is part of the hidden law. Stealing a friend’s girl is against the hidden law, and so is taking credit for somebody else’s work. Table manners, restrictions on double-dipping potato chips, and common courtesy are part of the hidden law.

There are also some big things that are part of the hidden law — or at least should be — according to Rauch. Euthanasia, for instance, used to be the sort of thing left up to families and priests and doctors and friends. If someone is in pain and there’s no hope of saving his life, the relevant loved ones would make that decision. Yes, it is illegal to kill someone. But the representatives of the state would simply turn a blind eye in such an instance, because society understands that the state is ill-equipped to deal with such things. Grandpa was relieved of his pain; and police, prosecutors, and the like winked at the whole thing. This is how the world is supposed to work according to Rauch, a self-described soft-Communitarian.

Along came the lawyers. With their hyper-rationalism and self-righteousness intact, the lawyers declared that if something is wrong, it’s wrong for everyone — and therefore it must be illegal for everyone. Conversely, if something is legal for someone, it must be legal for everyone. As Rauch writes, the American law school “is the most ruthlessly anti-communitarian institution that any liberal society ever produced.” All of a sudden, doctors were put in a position of monstrous, legalized power; they could decide whom to kill. That’s not a precedent you want on the books. There’s a big difference between winking at an exceptional case and legally empowering doctors to kill people. Pretty much everyone can understand this distinction, except for lawyers and a few other zealots. Indeed, one of the reasons prosecutors and cops developed this blind-eye approach is that they knew juries would be unlikely to convict a doctor for doing the right thing, and therefore they choose to save everyone concerned some anguish. It’s a rich tapestry of interwoven fictions.

Which brings us back to the Thomas Jones beating. Just as doctors often take technically illegal actions while actually making the morally correct decision, the same holds true for cops. In fact, the stakes of the hidden law for cops are far higher than for regular folks. Cops do not merely arrest people, they enforce social norms where social norms are the least entrenched and the most needed. In my dad’s old neighborhood, a cop was often more likely to slap a kid around than actually press charges for something like shoplifting (my dad was a good boy and did no such thing, FYI). The slapping was surely just as illegal then as it is now, but the intent was consistent with the hidden law. Growing up in New York, I myself got some stern warnings from members of the law-enforcement community, but that’s a subject for another day.

Indeed, to me it’s a tragedy that a white cop can’t give a black kid a kick in the pants without it automatically being interpreted by the kid and the community as a racial transaction. A lot of good kids have probably been thrown into the “system” because white cops were reluctant to treat them the same way they would treat a white kid. That’s one of the reasons I think affirmative action makes some sense for community policing: A black cop can administer justice in a black neighborhood without making the “victim” a racial martyr or flunky to be exploited by the likes of Al Sharpton.

But cops cannot instill, maintain, or elevate order (the co-equal brother in “law and order”) if they are not respected, and at least a little feared. It is a practical, albeit double-edged, necessity that police exact a price from people who endanger their lives. If shooting at a cop does not have a high cost — on the street — then few cops will be inclined to get out of bed in the morning. Moreover, it is difficult to expect that human beings could do the job at all if they were always expected to turn the other cheek.

It is difficult for us to fathom how important it is that justice not always be left to a courtroom. I know this sounds heretical and smacks of vigilantism. But this principle is also obvious to people in their everyday lives — and it is what makes everyday lives possible. A man with an errant hand deserves a slap across the face from a lady — without the lady fearing that she’ll be charged with assault. A man who treats his children shamefully should be shamed. And a person who lies should be called a liar. We mete out such justice every day of our lives.

Now, the Jones beating was certainly more than a slap in the face — but so was his offense: He shot a cop. Yeah, he hit him in the thumb, but that was, in all likelihood, not Jones’s intent, nor was it what was going through the minds of the cops who were dealing with him. So Jones took a beating from white cops and black cops. (Of course, the real villain is the GOP. Al Sharpton declared that the beating “sends a terrible signal as the Republican convention begins in that city.” Never mind that it’s a Democrat-run city.) Cops do this from time to time. I realize it doesn’t sound as moral or as enlightened as easing someone’s suffering in the case of euthanasia, but that doesn’t make it any less of a proper function.

Cops cannot always rely on the legal system to do what is necessary to deter bad people from doing bad things. They are the ones who have to walk down the street in bad neighborhoods that have their own not-so-hidden laws about respect and consequences.

Now, before I am called a total apologist for police brutality, I should make something clear. I think these cops should be investigated and quite possibly prosecuted. Let me tell you why.

Jonathan Rauch used the idea of hidden law to argue that Clinton should have been let off the hook in the Lewinsky affair. According to Rauch, the customs of hidden law dictate that men lie about adultery and that people accept the lie (Rauch assumes that all he did wrong was cheat on his wife and lie about it). Keeping adultery out of the public square keeps the stigma on adultery, Rauch argues. But if we make it a legal and political topic, we risk destigmazing it. “When the adulterer’s closet becomes a zone of legal peril,” writes Rauch, “adulterers will simply abandon it and take their chances with openness.” That’s why, argued Rauch, we should all have pretended to believe Clinton’s lies. “Yes, the man is a lowlife. And, yes, it is best not to have a lowlife as president. However, when you do have a lowlife as president, the best way to save a bad situation is to pretend he is not a lowlife,” Rauch wrote in the April 20, 1998 The New Republic.

Rauch was wrong on this point. Custom dictates that the community look the other way about adulterous behavior when it is possible to do so. Discretion when committing adultery is not just a way to hide your behavior; it is a courtesy to everyone, most especially your spouse. But this is not a blanket social writ to go around cheating on the spouse. If you are caught, exposed, or simply so wantonly flagrant in your behavior that your behavior can no longer be ignored — or, in Bill Clinton’s case, all three — then society must judge.

The same holds true when cops are caught on aerial cameras beating someone in broad daylight or, for that matter, when evil doctors like Jack Kevorkian (abetted by CBS) are seen on network television killing a patient. Such exposure forces the issue into the public square, because nobody can convincingly pretend it didn’t happen, and legal norms and social fictions must be upheld. Such exposure often makes prosecutions unavoidable and some unlucky bastards often pay an unfair price. But just as we can pretend, up until a point, that doctors don’t kill patients, or that your neighbor or your president isn’t a cheating bastard, when the issue is spilled into your living room, we must disapprove. Such hypocrisies are some of the small payments we make for civilization.


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