Law and Custom

A sequel of sorts to Manners, Duties, and Society.

Bill McGurn has a noteworthy piece in yesterday's Wall Street Journal in which he treads into a thorny thicket of issues all centering on how colleges deal with sex crimes. He concedes that a collapse of traditional morality has a part to play but his argument is this:

[the] real threat to civility and common decency is this: the substitution of codes and committees for responsible adults exercising humanity and judgment.

Now this observation may sound wise and true enough, perhaps even self-evident, but it seems to me to raise a challenging political science question when applied to life outside a university campus. First, a little backtracking:

We must back track a little and ask, "What is a law for?" There are to this question two common answers: A) to punish criminals and achieve justice, B) to deter a particular act. We then may ask "How does it come about" to which we can reply that a law comes about when a group of people perceive some wrong and seize the moral authority to rectify the wrong by punishing the offender.

Now we must distinguish in a society between laws and customs, the former being compulsory and the violation of which is punishable, and the latter which is preferred and rewarded but not mandated. We could sensibly propose a hierarchy between the two, laws being thought to preserve more important (or at least more pragmatically important) values than customs.

In a free society, though, those two categories are always going to be in some tension. What ought to be a law and what ought to be left to the freedom of the individual? Clearly the more that is mandated the less liberal the society. Similarly, people have different ideas as to what the government ought to do, though but that is not my concern in this post. Nor is my question here whether universities or societies ought to legislate morality. My questions is this: when customs pass out of tradition and into obscurity can a minority of people rejuvenate the customs by enforcing them upon the people, i.e. by turning the customs into laws?

While voluntary conviction is clearly preferable to force for the purpose of establishing order (or anything), is it more or less reliable for preserving what it wants to protect than force (i.e. law and government)? And as a corollary, does forcing something via law makeless likely to be preserved because its care and administration has been taken (or delegated) from the people? (Bill's hypothesis seems to fall squarely in one of these camps.) We might, more radically, ask: to what degree does any law really work, i.e. to what degree is a law itself (and/or its enforcement) the prime cause of a given situation. After passing a law do we often, ever, bother to see if it actually changed anything? Does anyone care whether it does, or is the attempt enough to satisfy people's desire to bring about the good.

For conservatives these political science questions center around two pragmatic political topics. First, we must consider that while we want to "conserve" something that the government should not be the default tool for conserving. The government is not the proper, or perhaps even a possible, tool of conservation. Second, we should be aware that conserving something via government intervention or monopolization might have the opposite effect, even on liberty itself (c.f. Jefferson, "The people are the only safe depositories of their own liberty.") (from a letter to L.W. Tazewell, 1805.)

Perhaps the conservative rule should be simply "to do good" in contrast to the "I want good to be done" (i.e. by the government) attitude of state-centered modern liberalism.  People produce a culture and a society, and the society creates the government. Not the other way around.

To pose a final more philosophical question, I would borrow from de Tocqueville and ask: does equality under law beget (or encourage) a desire for total equality? Does then that desire, or the sating of it, make centralization of law easier by 1) shrinking the individual in relation to the state by making all individuals equal and thus equally small and interchangeable relative to it, and 2) making a law easier and more appealing to pass because of the reasoning that, "if it affects everyone it must be fair?" Does (or may), then, Liberalism, somehow contain the seeds of or propensity for illiberalism?

Perhaps either way the best defense against this infantalization, whether from "tyrannical ambition" or "servile temptation" (to borrow a pair of phrases from Paul Rahe's Soft Despotism) is a belief in liberty and not a contentment with servility in the hearts of the American people and a specific, limited body of laws. (Again, it seems always to be the lack of specifics, the lack of limits or finite ends, of the progressives which causes concern amongst conservatives and Classical Liberals.) A return to limits, liberty, and diffusion, not centralization, of responsibility amongst us is needed, lest the growing state slowly, imperceptibly render us as Tacitus said the rule of Augustus left the Romans, "capable neither of complete servitude nor of complete freedom."