I’ve gotten a lot of grief from readers about this post, most of them picking on the reader-email I posted. Some of the criticisms have merit. Yes, the email I posted was awfully glib, which I thought was obvious enough that I didn’t have to take a red pen to some of the overstatements.
But I think there’s a more interesting criticism about my ode to the rough justice of yore. Several readers note the fact that some culture norms enforced outside the law in the past were downright evil. For instance this reader brings up Emmet Till:
Some of the cultural norms that were enforced by group action and explicitly (or tacitly) endorsed by the authorities were admirable, just as some were reprehensible. I won’t claim the cultural changes that occurred in the 1960′s were all good but I would remind folks of the evil that also existed. On net, I believe society is better off because of the battles fought in the legal system even though in fighting evil some good was lost.
When folks express unbridled nostalgia for those days of locally enforced norms they give the appearance of endorsing both the good and the bad norms of those days. Since part of the bad was racism, unqualified enthusiasm for those days gives the appearance of endorsing racism. For a significant part of the population those were not the good old days.
Let me just say I agree with this entirely. It seems I will have to spend the rest of my life saying something like “except for racism” whenever I talk about federalism, hidden law, civil society etc. It’s annoying not least because I would like to think that my position on racism and civil rights is well-enough known that I shouldn’t have to offer such assurances so often. It’s also annoying because it often seems as if only conservatives have to own their history (even when it’s not their history), while being a liberal means never having to say you’re sorry (gosh someone should write a book about that).
Back to the subject at hand. Hidden law is not the answer to everything. Sometimes the state or decent men outside the state (and women too!) must break cultural norms and traditions, either because those traditions have outlived their utility, are no longer relevant or have become perverted into something indefensible. But to argue that cultural norms can be bad is not an argument for saying we should have no cultural norms, just as saying the state is sometimes evil is not an argument for saying we should have no state. Serious people understand that circumstances can differ, context matters and that while X may be bathwater Y is in fact a baby.
I’m happy and grateful for the civil rights triumphs of the 1960s, and if one price of the civil rights revolution is that the friends and former fellow Marines of a fallen soldier can’t beat the crap out of someone who desecrates his funeral, well I think we as a society were right to pay that price. But that doesn’t mean we have to celebrate what was lost.