When the Law Runs Amok - interview with Jonathan Rauch - Interview

Author Jonathan Rauch talks with TWQ editor Charlotte Hays about the value of Hidden Law.

WHAT DOES IT MEAN when a kindergarten boy is accused of sexual harassment for trying to kiss a little girl? Or an Olympic gymnast is forced to return her gold medal for taking two Sudafed tablets? And what about the kid sent home for bringing a "weapon" to school--even though it was a squirt gun?

Jonathan Rauch--a National Journal columnist and one of Washington's most provocative thinkers--talked about the perils of living in an overly legalistic society in a recent Bradley Lecture at the American Enterprise Institute titled "Courting Danger: the Rise of Antisocial Law."

A former correspondent for the Economist, Rauch is a writer in residence at the Brookings Institution in Washington, where he spoke with TWQ editor Charlotte Hays.

TWQ: You use an intriguing term, Bureaucratic Legalism, to describe the legalistic bent of our society. What do you mean by this?

RAUCH: I use the term Bureaucratic Legalism as a way to emphasize the very bureaucratic nature of law in many areas in American life. It's the notion that if you go through enough legal process, then the outcome must be right.

I can't stress too strongly that, for all the criticisms I am about to make of Bureaucratic Legalism, the establishment of the rule of law is one of the greatest achievements of human civilization. The question is, what happens if it starts getting off its leash? What if it's used with an eight-year-old girl who brings a nail clipper to school?

TWQ: You talk about another kind of law--Hidden Law. What is that?

RAUCH: It's the rich, dense web of etiquette, norms, social codes, and customs that evolve in communities over periods of hundreds of years to avert or resolve conflicts. I call it hidden because it's so imbedded in our social structures that we forget it exists. It's like remembering to drive on the right side of the road. And I call it law because, although of course it really isn't law in a formal sense, it is at least as important in many situations as formal law is in regulating conduct and making sure people get along. Hidden Law is everything from table manners to the informal mechanisms by which neighbors settle land disputes.

TWQ: Is there a role for hypocrisy in Hidden Law?

RAUCH: Yes, there's an essential role for hypocrisy. I'm particularly interested in a class of Hidden Law that I call "Don't Ask, Don't Tell." Now, I should say that as a gay person, I'm very much against "Don't Ask, Don't Tell" in the military. I'm talking about something broader: conventions that allow us to avoid conflict by making tacit agreements with each other to pretend not to see what the other person is doing. We just pretend nothing is going on, even though we both know something is going on, and I know that you know, and I know that you know that I know.

TWQ: Let's see how Hidden Law works in specific applications. How does it work in the case of adultery?

RAUCH: Adultery is my favorite example of the Hidden Law of looking the other way, or as some people call it, wink-wink, nudge-nudge. Adultery has a three-layered code. The formal code--the one we tell our children--is don't play around, period. That would be the line that, say, Bill Bennett takes. Below that, however, there is the real rule: We know that some people are going to mess around and that this is inevitable. So, if you're going to do it, keep it quiet. Keep it out of sight so that the children don't find out and so that everyone can pretend that they don't know.

And then, below this rule, there's another rule that's still more hypocritical and the most elegant of all. And that rule is: If somebody does find out, they pretend not to see it. The hidden rule with adultery is that, if you'll pretend not to do it, we'll pretend not to see it. This makes adultery very inconvenient, while at the same time allowing enough room that people aren't prying into the lives of other people to arrest them for having illicit affairs. Wonderfully effective.

TWQ: Pornography?

RAUCH: Pornography is a slightly more complicated case because formal law has always been involved in regulating pornography, and, in fact, used to be more involved than it is today. But Hidden Law has always played a role in regulating pornography. You can't stamp out pornography. You probably don't want to. What you can do is keep it out of sight and pretend not to see it. If pornography is downtown on skid row, respectable people can pretend that they don't even know it's there. If they do happen to go downtown and purchase a dirty magazine or video, they do it out of sight of their friends and neighbors. Now, this is an important convention, because it allows us all to pretend that pornography is not a part of our lives, and it also restrains the amount of pornography that circulates above ground, in plain view.

TWQ: Let's talk about how Hidden Law works in assisted suicide.

RAUCH: Along with adultery, assisted suicide is an interesting example of the profound delicacy and elegance of Hidden Law. Assisted suicide is a terribly fraught, difficult situation. Anyone who's ever faced this kind of situation will tell you how agonizing it is to have to choose between having someone suffer pain until the inevitable end or helping him hasten that end.