There are two different conversations going on on the Corner today — the values training stuff and the posts about the Berkowitz review of Ramesh’s book. Reading the email from Rich’s former Air Force guy about the stiffling effect of the JAGs reminded me of Jonah’s observation earlier today about how ”the Hayekian social order” holds ”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.”
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 not 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.