Uncovering Hidden Law
In "Conventional Wisdom" (February), Jonathan Rauch praises "hidden law," a web of convention and informal norms that he says regulates society more humanely than today's culture of law, court action, and open debate. I beg to differ.
Consider euthanasia. Rauch celebrates the days when doctors simply slipped suffering terminal patients a fatal dose and nothing more was said. When patients were ready to die and doctors were willing, hidden law was kind and convenient. But what about doctors who valued life at any cost and refused to end suffering? Imagine a trigger-happy doctor, quick to dispatch patients not yet ready to die–under the concealing blanket of hidden law, how could they ever be caught?
Hidden law confers substantial authority (but less responsibility) on parties other than the consumer. In the old days, doctors were guided solely by their own values regarding euthanasia. Patients could only hope their physician's views mirrored their own. Some learned otherwise only by lingering in agony, helpless in the hands of a doctor who would do nothing to ease their passing. Today, thanks to Jack Kevorkian, the courts, and legislatures, we're moving closer to a system in which physicians can openly discuss their willingness to euthanize; the process is open and accountable; and the healthcare consumer is the final decision maker.
As for marriage, Rauch praises a system in which society held startling power to regulate individuals' intimate relationships. Fear of "what the neighbors would think" trapped millions in toxic relationships. Libertarians should look askance at any system that vests such power in a faceless, unaccountable "community," not in the individuals living out their relationships. Today's system in which individuals hold untrammeled power over their own love lives is far preferable.
Scratch a communitarian–even a soft one–and you always find a central planner eager to disenfranchise people from their lives and hand over power to insulated elites. Whether exerted by kings, elected officials, or the neighbors, social control always implies coercion. It must be resisted by those who truly love liberty.
In "Conventional Wisdom" Jonathan Rauch says "The further good news is that gradually, quietly, Americans are becoming aware of the existence of hidden law." This makes me wonder where Mr. Rauch has been for the last 40 years or so. I rather doubt that in the 1950s there were any African-American children in the U.S. older than 6 who weren't aware of this so-called hidden law. They may not have known all of its ramifications, but you can bet they knew the parts that affected them. What U.S. automobile driver doesn't know that the real speed limit is different from the posted one unless there's an official zero-tolerance policy in effect?
There is probably some value in having this hidden law, which is more commonly called custom. No formal system of law can be sufficiently fine-grained to perfectly apply to all situations. Sometimes there is a need for custom when the granularity of the official law is too coarse, or simply fits a situation poorly. But it's through hidden law that society expresses not only its tolerance but also its intolerance–its moral heights, perhaps, but more commonly in this century, its depths. Hidden law may give Mr. Rauch comfort, but his presentations read like a denial that it also gives us hate crimes, prejudice, unfair treatment, and denial of rights. Like the hidden speed limit, it allows us to circumvent our formal structure of law with behaviors that would otherwise fail the test of those laws.
If there is polarization between law and custom today, it is a result of broad understanding of the differences between the two, not widespread ignorance. From the birth of the U.S. as a nation, people who felt victimized or even insecure about the hidden law have addressed their concerns by formalizing them into official law. To me, the amendments to the U.S. Constitution are essentially votes of no confidence in the hidden law. A few years ago, Rep. Gary Ackerman stated that the "Constitution is supposed to protect your rights, not your sensitivities." I believe people often do confuse rights with sensibilities, particularly within the slushy morass of social custom. Gay marriage activists are not attacking the institution of marriage, they simply want to secure generally for themselves the sorts of rights granted to people with a different sexual orientation. Like the proponents of the Bill of Rights, they want the current difference between rights and sensibilities addressed and formally rationalized to secure for them the choices they feel are being denied by the hidden law.
People like Kevorkian may be grandstanding, but they also understand that prohibitions against suicide are rooted in peoples' sensibilities, and those may unfairly deny other people their right to release themselves from unbearable punishments imposed by accident or nature, and enforced by custom.
Civil rights activists are not trying to "denorm" society. They're just trying to get society to face up to social variations that already exist. Despite the urgings, or these days the whinings, of the radical religionists, there's no moral mandate given to those perched atop the bell-curve of "social normality." A clear case can be made that most social advances are carried on the backs of the people within society's fringes, not its center. Indeed, it's a sad fact that some of the worst of the hidden laws do not change easily. In extreme cases they have required martyrs to starkly illuminate the differences between the sensibilities of some people and the rights of others.
I agree with Walter Olson ("Gold Bugs," February) that class action suits have become a major problem. However, I disagree with the solution to stick a disclaimer saying the software product and any related documentation is provided "as is" without warranty of any kind inside the box where the buyer cannot see it until he has already paid for it.
There is a simpler solution. Stick a large bright red "Sold As-Is" sticker on the front of the box where the buyer can see it before paying for it. The software makers may not like this truth-in-advertising solution, but it will allow buyers to make informed decisions before paying.
Prudence or Pessimism?
In his review of Hard Green ("Preservation Instincts," February), Ronald Bailey joins author Peter Huber in castigating Al Gore for using the "sandpile" metaphor for environmental threats such as global warming. They would do well to ignore the metaphor and face the evidence. Global warming is a real and serious danger.
The increase in atmospheric CO2 levels has coincided with melting ice sheets in both the Arctic Ocean and Antarctica and an increase in extreme weather. The 1990s is the warmest decade since records have been kept, according to research by the universities of Massachusetts and Arizona on ice cores and tree rings.
Al Gore is a prudent man at a time when prudence is warranted. The biological capital of planet Earth was amassed over 4 billion years in the greatest free market of all: the evolution of life. Preserving its glorious diversity is a cause worthy of dedication and sacrifice.
Ronald Bailey replies: The great thing about the "sandpile" metaphor is that it allows one to dismiss previous findings and evidence. In the case of global warming, the current climate models on which Al Gore and others rely show gradual warming over the next century, no abruptly collapsing sandpiles.
For a longer discussion of global warming, see my article in this issue (see page 18). As for Antarctic ice, a peer-reviewed article in Science last year found that the rate of melting had not increased, but was still at a steady pace as a result of the ending of the last ice age 10,000 years ago. Arctic sea ice does appear to be thinning, but it had substantially thickened and expanded between the 1940s and the 1970s.
Despite the claims made by environmental activists, climatologists generally agree that extreme weather events like hurricanes have not increased in the second half of the 20th century. As for being the "warmest" decade on record, the same tree rings show that the period 800-1200 A.D. was generally warmer than it is now, though we are getting close. Global warming poses far less of a threat to the diversity of life than poverty and hunger in the developing world do. Poor hungry people will chop down forests and kill wildlife to feed themselves and their families. Fostering rapid economic growth in developing countries, rather than exhorting them to "dedication and sacrifice," is a far more effective policy for preserving the world's diversity of plants and animals in the long run. That's real prudence.