Free Minds & Free Markets

Conventional Wisdom

Rediscovering the social norms that stand between law and libertianism.

Lately I have begun to understand how a Methodist must feel when everyone he meets calls him a Lutheran. People often describe me as a libertarian. All right, it's true that I often write in a skeptical vein about government. Yes, I have come to see a higher, Zen-like power in leaving things alone. I generally do subscribe to H.L. Mencken's dictum, "All persons who devote themselves to forcing virtue on their fellow men deserve nothing better than kicks in the pants." But still. I know, in the visceral and insistent way the Methodist knows he is not a Lutheran, that my worldview is not quite congruent with what most people today regard as libertarianism.

It is hard to evade one label, however, when you can't offer another. If not "libertarian," then what? For a while, I tried "curmudgeon." A curmudgeon, in my own enlightened sense, is a person who is against improving things for the sake of it. (These days, "curmudgeon" is not the same as "conservative," because, ever since Barry Goldwater, many American conservatives have been radical reformers.) I tried "radical incrementalist." A radical incrementalist is a person who seeks to foment revolutionary change on a geological time scale. The trouble is that "curmudgeon" and "radical incrementalist" both describe my temperament but say nothing of my beliefs. So I gave up. And then, a little while ago, I figured it out. I am, I discovered, a soft communitarian.

A what? You roll your eyes, and I can't blame you. Bear with me, however. There is a fair amount of undesignated soft communitarianism about these days, and it signifies the emergence of an important sort of thinking.

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.

For eons, hidden law has coped sublimely with adultery. As long as the adulterer was discreet and the wife either didn't know what was going on or was willing to pretend she didn't know, everybody else also pretended not to know. Public law's rather different way of handling the situation was on display in the Clinton-Jones-Starr-Lewinsky affair, and it was not superior. So, also, for sexual conduct involving adults in the workplace. Hidden law was imperfect for situations where flirting got out of hand, but today's sexual harassment law, in which platoons of lawyers scour office e-mails for hints of unwelcome overtures, is proving itself not just imperfect but grotesque.

What about the "soft" part? Why a "soft" communitarian? Because there is a harder variety that replicates the lawyers' mistakes in a communitarian direction. The hard communitarian, seeing that hidden law has broken down, demands a series of public laws or subsidies to re-establish it. Require children to support their aging parents, require students to do involuntary volunteer work, make voting mandatory--that sort of thing. The archetype of the hard communitarian is Lee Kwan Yew, the former prime minister of Singapore. In America, an example might be Rudolph Giuliani, the mayor of New York City.

We softies, by contrast, understand that hidden law works precisely because it is not formal: The very act of formalizing it destroys it. We believe, therefore, that public law's next big project should be to sit down and shut up. That is, public law should be careful, infinitely more careful than at present, not to burst into every room it sees and immediately begin breaking crockery. It should strive to stay out of hidden law's way, rather than obliviously trampling it with each elephantine footfall. When personal behavior needs regulating, we soft communitarians prefer exhortation to legislation and shame to jail. A good, albeit controversial, example of an effective soft-communitarian activist is Bill Bennett, with his Book of Virtues, his "index of leading cultural indicators," and his denunciations of gangsta rap. Bennett says he opposes legal regulation of song lyrics, but he certainly does not oppose confronting recording company executives and demanding that they read aloud some of the lyrics they sell. He practices censoriousness rather than censorship. That is "soft" in a nutshell.

We soft communitarians are soft in a further sense: Like F.A. Hayek (who in some ways was a soft communitarian), we do not believe in taking an uncritical attitude toward social norms, even deeply embedded ones. With all due respect to folk wisdom, I favor gay marriage, even though nothing could be less traditional. Now that we know that homosexuals exist--that they are not just neurotic heterosexuals who need a few jolts of electroshock --the extension of the nuptial contract to them is not a sundering of tradition but an extension of it. Thoughtful criticism allows us to see this. Soft communitarianism is not blind obeisance to tradition. It aspires to be rigorous rather than rigid.

An interesting question about soft communitarianism is: So what? Who could be against such a mushy and innocuous doctrine? Or who, anyway, apart from everyone who ever went to law school? You might point out that soft communitarians can be found toward the drab center of both political parties, where everyone is for "values" and "civil society." You might also note that soft communitarianism is perfectly consonant with most major strands of libertarianism. The reason I am often mistaken for a libertarian--even though I am more comfortable talking about rules than rights, I prefer reasonableness to reason, and I care about government's effectiveness rather than its size--is that my soft communitarianism leads toward a persistent skepticism about the oozing encroachment of public law into every pore of daily life. Maybe the soft communitarian and the libertarian, like the Methodist and the Lutheran, are just two versions of basically the same thing.

But not so fast. The fact is, many libertarians I know react with discomfort, often bordering on hysteria, to soft-communitarian talk. They feel that if their life is not the law's business, then it also is nobody else's business. They are deeply uneasy with social instruments like shame or opprobrium, which smack of big-nosed authoritarianism in a new guise.

And here a certain sort of libertarianism comes full circle to join hands with a certain sort of leftism. The libertarians and the leftists come to blows over economic issues--who should run the health care sector, for instance--but they glare in hostile unison at the soft-communitarian project (which, remember, also enlists some libertarian types of its own; this gets complicated). Underlying their hostility is an implicit theory of coercion that is worth grappling with, because it lies at the heart of today's culture wars. In that connection, consider Michael Warner.

Warner is, to begin with, an English professor at Rutgers University. But he is probably better known as a leading queer studies scholar. And, more than that, he is an activist, closely associated with an extremely controversial group called Sex Panic!, which organized in the mid-1990s to oppose what it regarded as the squelching of sexual freedom by gay and straight conservatives alike.

I ought to say, not that it matters, that I am discussed in passing in Warner's new book, The Trouble With Normal: Sex, Politics, and the Ethics of Queer Life (The Free Press). Warner quotes me on gay marriage and says I am "more honest than most" of his ideological adversaries: a compliment I can return in kind. Because The Trouble With Normal is, in large measure, an answer to Andrew Sullivan and other gay conservative advocates of homosexual marriage and assimilation, and because it concerns itself with various intramural disputes in the gay world (strategies for AIDS prevention and the like), booksellers will confine it to the "gay interest" shelves. That is a pity. Warner is that rarest of writers, an honest extremist who is smart enough to see through to most (though not all) of the depths of his own positions and who is fiery enough not to flinch. His agreeably written and commendably concise book thus turns out to be, among other things, a 200-proof distillation of the case against soft communitarianism.

For example, Warner is shrewd enough to see that the standard defense of gay marriage by gay activists is wrong. This defense holds out marriage as just one more lifestyle option. It is available to heterosexuals, so it should be available to homosexuals as well, and that's all there is to it. But this is wrong. Marriage, as Warner aptly puts it, is "a social system of both permission and restriction." Spouses and society alike view matrimony as something special and exalted; it is not merely allowed, it is encouraged. Far beyond merely creating legal arrangements, it is freighted with the social expectations and implicit requirements of hidden law. It is a bargain not just between two people but between the couple and society: The spouses agree to care for one another so that society does not need to, and society agrees in exchange to view their commitment to each other as inviolable and sovereign and, indeed, sacred.

Traditionalist conservatives understand that marriage confers special status under hidden law, which is why they so fiercely oppose extending it to homosexuals. I understand that marriage confers special status, which is why I favor extending it to homosexuals. And Warner, piping up from the radical left, also understands marriage's special status, which is why he opposes gay marriage. When marriage is available to gay people, he understands, gay people will be expected to marry, and married homosexuals will conduct themselves with the same (let's face it) smugness that characterizes married heterosexuals. "The effect," Warner says, "would be to reinforce the material privileges and cultural normativity of marriage." Homosexuals who do not marry will be regarded as less respectable or less successful than those who do.

In Warner's view, that would be a profound miscarriage of social justice. For Warner is against not just the sexual norms of the moment but the very notion of sexual norms. That is not to say he would decline to pass harsh judgment on a rapist. But where consensual sex is concerned, he insists, society should just butt out. Not only should the law stay out of the bedroom (a standard libertarian position), so should norms, because all norms create "hierarchies of respectability."

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