When Laws Relace Common Sense--essay by George Will

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COMMON SENSE

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When Laws Replace Common Sense

By George F. Will

Sunday, December 24, 2000 ; Page B07, Washington Post

A spreading American mentality -- aversion to common sense -- recently entrapped the French Fry Felon. Traveling home from junior high school one afternoon, Ansche Hedgepeth, 12, was nabbed in an undercover D.C. police crackdown on snacking on the subway. She was handcuffed and her shoelaces taken away, lest . . .

Instead of being dropped from her double-dutch jump-rope team, as might have happened to a more hardened criminal, she was sentenced to undergo counseling. Transit police, dismissing criticism that the handcuffing was a bit much, say the policy regarding illicit snacking is zero tolerance.

In suburban Atlanta, Ashley Smith, 11, was suspended because she came to school with her keys attached to her Tweety Bird wallet by a thin 10-inch chain. Chains are banned under the school's zero-tolerance policy regarding "weapons." Under similar policies, four New Jersey kindergarteners received three-day suspensions for "shooting" each other with their fingers pointed as guns. Elementary school children have been suspended for possession of nail clippers.

These are examples of "the rise of antisocial law," the subject of essayist Jonathan Rauch's recent lecture at the American Enterprise Institute. There are, he argues, two dramatically different mechanisms for averting and resolving conflicts. One, which he calls Hidden Law, is communitarian and informal. The other he calls Bureaucratic Legalism, which provides due process for every problem, and that is a problem. Both have proper spheres, but Bureaucratic Legalism is metastasizing dangerously, crushing Hidden Law, on which privacy and civilized life generally depend.

Hidden Law consists of unwritten social codes. The breakdown of one such -- the rule that a man had to marry a woman he got pregnant -- may be, Rauch says, "the most far-reaching social change of our era." Some elements of Hidden Law are what Rauch calls "craftily balanced regimes of hypocrisy." Love may make the world go 'round, but a kind of hypocrisy -- call it the Higher Hypocrisy -- lubricates the rotation.

Doctors, consulting with patients or families or both, have always quietly helped hopeless sufferers die. "It all worked," Rauch says, "because, formally speaking, nothing ever happened but a natural death. There were significant looks, knowing nods, whispered hallway conversations. . . . Everyone involved knew what had happened, and everyone also knew the importance of pretending that nothing had happened." Now Bureaucratic Legalism is beginning to crowd out Hidden Law. Society is codifying assisted suicide. Is this is an improvement?

Time was, Hidden Law helped regulate pornography. It was sold in out-of-the-way places -- say, down by Skid Row -- everyone knew where it was, everyone pretended not to see it, randy boys got ahold of it, adults pretended to believe that the boys didn't. Says Rauch: "The requirement that porn stay where you could plausibly claim never to see it amounted to a social truce. Libertines agreed not to confront bluenoses with smut, and, in exchange, bluenoses promised not to go digging around in the affairs of libertines. Of course, both parties, if you had asked them, would have vigorously denied that there was any such deal. That was why it worked." Bureaucratic Legalism has long since supplanted Hidden Law, elevating access to pornography to a constitutional right. Progress?

Universities used to have unwritten speech codes. There were insults and epithets, hurled in anger or drunkenness, followed by apologies, sincere or hypocritical. Everyone knew who was occasionally angry and who was habitually obnoxious, and campuses were generally civil and relaxed. What looked like doing nothing actually did something ameliorative. Now there is Bureaucratic Legalism -- written codes against "discriminatory verbal conduct," an offense that triggers interminable investigations, sometimes court proceedings (which discourage apologies that acknowledge guilt), severe disciplines, campus uproars, lasting bitterness.

In a dense and diverse society, Rauch says, moral disputes and collisions of clashing sensibilities are incessant. But civilized life depends on informal rules and measures -- social winks, so to speak -- preventing such mundane conflicts from becoming legal extravaganzas or occasions for moral exhibitionism. Otherwise communities become neurotic, quick to take offense, slow to assuage it. One sound of such a society is the "snap" of handcuffs being placed on a 12-year-old subway snacker.

In a Santa Fe, N.M., park, a fountain portrays a boy and girl playing, she aiming a garden hose at him, he aiming a squirt gun at her. The sculptor is going to make the boy a new hand, holding a hose. In its Baltimore headquarters, the Associated Black Charities is vexed by a proposed mural depicting Harriet Tubman holding a musket. Zero tolerance for guns. Zero common sense.

"Police! Drop the fries and no one gets hurt."

© 2000 The Washington Post

-- Lars (larsguy@yahoo.com), December 24, 2000

Answers

The only reason I subscribe to USN&WP is for Leo. He reads a lot like the above. Any other Leo fans around here?

-- Carlos (riffraff@cybertime.net), December 24, 2000.

But isn't this, in so many ways, a natural result of people who just won't take responsibility for their own lives/actions/children? People who would sue a fast food chain because they spilled hot coffee on themselves? People who don't read the damn instructions and then sue the manufacturer because they hurt themselves -- and then juries find the manufacturer responsible despite the printed instructions?

I'm not saying that I agree with handcuffing a kid because of French Fry Snacking on the Subway, but I think it's a safe bet that this kid's parents are probably part-n-parcel of the "TV/movies/music/video games-are-responsible-for-my-kid's-behavior" generation. I see this in stores -- kids will be running around just screaming their heads off, pulling things off shelves and racks and just dumping stuff on the floor; and then Mommy will say, "Oh don't worry, they'll clean it up; it's their job". Never once do we hear "Mommy" scolding the little brat telling him/her to put it back where they found it.

I would have been grounded for a week if I ever did any of that.

Sorry people; we can complain about this 'til the cows come home; the bottom line is that we did it to ourselves by allowing things like frivolous lawsuits to proliferate as they have. This episode and others like it are the natural result of people who don't or won't take responsibility for themselves and their children.

-- Patricia (PatriciaS@lasvegas.com), December 24, 2000.


Leo fan here.

-- Lars (larsguy@yahoo.com), December 24, 2000.

Patricia:

I certainly don't read the same thing you do in this editorial. George Will seems (to me) to be saying that people have *always* done *all* these things. Nothing significant has changed in terms of peoples' actual behaviors (and our very earliest written records from thousands of years ago contain complaints about our children being spoiled and raised without respect).

What *has* changed is our effort to formalize and codify both our behaviors and our "official" response to them. This is very closely analogous to the distinction between a free market and a planned economy. George Will is saying we used to have a "free market" of unwritten custom, a grand suboptimal but workable system of "don't ask, don't tell" at every level. This system was an absolute requirement for the lubrication of social intercourse, but sometimes people got away with things, some people suffered unnecessarily, no doubt about it

Now we've gone toward a system of trying to specify every possible behavior and the "required" reactions to them all. This is the "planned economy" approach -- brittle, formalized, often absurdly inappropriate, inflexible, non-adaptive, senseless. We have spent a dollar trying to buy a dime here. Without question, the dollar is spent. Whether we got our dime's worth is doubtful. When we stop rewarding people for getting along as best they can, and start rewarding them for NOT getting along, the results shouldn't surprise us.

-- Flint (flintc@mindspring.com), December 24, 2000.


Flint dear, do you EVER take a day off?

Now then.....

You didn't really say anything different than I did [oh the horror] ..... I just put it in much more basic terms ;-)

Bottom line is that people are NOT (capitalize and emphasize **NOT**) taking responsibility for themselves. When this happens (as it has), the absurd laws are the result (as they are).

Merry Christmas. Go have fun.

-- Patricia (PatriciaS@lasvegas.com), December 24, 2000.



So what prompted the zero tolerance rule of snacking on the subway? Probably some unruly food fights. The decision to ban all food rather than to mandate "eat without making a mess" was arbitrary and simplistic.

The unwritten social codes, the Hidden Law, have given us a sane society. Legislating everything will only divide us and provide more work for lawyers.

-- Johnn Littmann (littmannj@aol.com), December 24, 2000.


Patricia:

Once again here. People's behaviors toward one another *have not changed*! They are as responsible as they have ever been (which isn't very), no more and no less. There have been no changes in that respect, and George Will does not claim there have been.

Currently we are testing the limits of codification. We are a litigious people and see the courts as lotteries (which they often are). But we'll get over it.

-- Flint (flintc@mindspring.com), December 25, 2000.


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