The Power of Hidden Law


Don’t interrupt the conversation of civilization

“…there’s a strongly held view in Hollywood and D.C. that says that without the government in Washington American society would descend into anarchy almost instantaneously.”

Jonah Goldberg writes: Hidden law was a term coined by Jonathan Rauch, who basically updated a lot of ideas familiar to readers of Burke, Hayek, Oakeshott, and Albert Jay Nock. Calling himself a “soft communitarian,” Rauch put it very well so it’s worth quoting him at length:

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.

“The enemy of hidden law is not government, as such. It is lawyers.”

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.

  I’ve long believed there’s a strongly held view in Hollywood and D.C. that says that without the government in Washington American society would descend into anarchy almost instantaneously. People are walking around downtown Peoria. They are perfectly calm and rational. Mr. Jones says “good morning” to Mrs. Smith. “Nice weather, huh?”

Then, as if Landru had replaced the noontime chime with the code phrase “the federal government is gone,” someone shouts, “The federal government is gone!” and anarchy immediately ensues, with rape and rapine fast on its heels. Upon hearing the news that Washington stands idle, Mr. Jones attempts to ravish Mrs. Smith. His dastardly plan is only foiled because Slim Pickens ordered the ol’ number six.

And I’m not talking about panic over a nuclear strike or the news that Cthulhu has started his horrible feast on Capital Hill. I mean that I think there’s a notion — more like an unarticulated assumption — that it’s the government in Washington that holds society together. This is somewhat implied in the way Obama talks about government as the word for the things we all do together and his efforts to sow bowel-stewing panic over the government shutdown. It’s implicit in all the talk — from Republicans and Democrats alike — that the president needs a “vision” for the whole country and that he “creates” jobs.

The simple fact is that if the federal government disappeared tomorrow — and the media didn’t report it — it would take days or even weeks for many people to even learn about itRead the rest >>>

National Review Online

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