Jonah Goldberg writes an article deploring the perceived necessity to submit all of our social conflicts to the stricture of law - it's worth reading here. Of course he's talking about the latest gay marriage kerfuffle which played out in Arizona this week. It turns out that the LGBT side of the debate (or is that LGBTQ? sexual categories keep metastasizing on me) has persuaded legislatures to pass laws criminalizing 'discrimination' against the differently sexual. In defense, the differently believing asked the legislature to pass legal provisions protecting the differently believing from the protections given to the differently sexual upon which the differently sexual demonstrated their apparent and newfound superior air power to pound the differently believing into the ground for a clear win by the differently sexual. Thus the differently believing lose a slight bit of the rights they had to act on some of their beliefs while the differently sexual gain the right to act with slightly more freedom on theirs. What a wonderful zero sum achievement.
Yet the diffsex didn't really gain anything because none of them really want to pay money to people they know disapprove of them if only on prudential (nasty flavored cakes, shitty photos) not to mention principled grounds. And the 'losers' haven't really lost anything other than their pride and the possible occasional humiliation when a diffsex wants so bad to humiliate a diffbelief that they will tolerate bad, resentful service just to prove that they've got power. Thus the only thing this 'liberation' has done is poisoned our social discourse just a little bit more. Now each of us can hate the 'other' with just a little sharper edge, a bit more contempt. Which as Goldberg points out is what happens when you subject informal social arrangements to the strictures and inevitable brutality of the law.
Social and economic relations should be a positive sum game - and as a libertarian conservative, I believe in general they are - when we come together to do things we do so because both of us benefit - either economically, socially or some cases, both ways. In my opinion, using the law to govern private social relations takes a positive sum game and turns it into a zero sum or even negative sum game - just like it does for economic relations. The left believes in a zero sum world where we use politics to create laws to take from the 'unworthy' and give to the 'worthy'. It's called 'social' justice as opposed to just 'justice'. But what 'social' justice is is merely politics. The powerful impose on the weak. Right now that means that the diffsexes can pone the diffbeliefs. Someday the worm will inevitably turn and the diffbeliefs will pone the diffsexes.
As Goldberg points out:
In 2000, Jonathan Rauch, a (gay) brilliant intellectual and champion of gay marriage, wrote a wonderful essay on “hidden law,” which he defined as “the norms, conventions, implicit bargains, and folk wisdoms that organize social expectations, regulate everyday behavior, and manage interpersonal conflicts.” Basically, hidden law is the unwritten legal and ethical code of civil society. Abortion, assisted suicide, and numerous other hot-button issues were once settled by people doing right as they saw it without seeking permission from the government.
“Hidden law is exceptionally resilient,” Rauch observed, “until it is dragged into politics and pummeled by legalistic reformers.” That crowd believes all good things must be protected by law and all bad things must be outlawed.
As society has grown more diverse (a good thing) and social trust has eroded (a bad thing), the authority of hidden law has atrophied. Once it was understood that a kid’s unlicensed lemonade stand, while technically “illegal,” was just fine. Now kids are increasingly asked, “Do you have a permit for this?”
Inevitably the erosion of hidden law by the 'majesty' of the law that has guns, shackles and steel boxes leads to a coarsening and brutalizing of our society. We turn positive sum interactions into negative sum ones: you win, I lose, the lawyers get paid. And a negative sum world is truly a dumb sum world. Because it leads to more cruelty, more anger, more hatred. And at the end of the day those in the minority - which ultimately must include the diffsex suffer mightily by the example that in this case they have so expertly given. Shylock was right: it is human nature for those on bottom to when they get on top to revenge themselves on their 'oppressors'. The problem is that who's on bottom in a pluralistic society will keep flipping and flopping and the revenging and counter-revenging never stop.
It all makes for an ugly country to live in.
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