Jonathan Rauch on Hidden Law

I nicked this from Jonah Goldberg who got it from Jonathan Rauch - it uses assisted suicide as the example but any complex, controversial social policy could be substituted.  IMHO a really important and profound perspective:  Burkean Conservatism at its Burkiest.

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.

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.

And of course Sherman's demolishing legal army has just smashed through freedom of conscience to the shrieking, preening, vindictive delight of a triumphant left.  Just imagine what fresh hell of social cruelty our lawyer friends have in store for us next.  

My God, my God why have You forsaken us?