Not long ago I touched briefly on the old tradition of the hue-and-cry, mentioning how likely I thought it was that criminals "who were the objects of a successful hue-and-cry appeared before the magistrate bearing the black-and-blue stigmata of popular outrage." Shortly after I wrote that, carjacker Thomas Jones, pursued and caught by outraged citizens of Philadelphia, wound up not only black and blue but also perforated with bullet holes. The trouble was, the citizens who furnished Jones his informal lesson in civil conduct were cops.
In truth I can't feel too sorry for Jones; everyone but his ever-lovin' family is pretty sure he's a very bad guy with a long history of demonstrating his badness. I feel the same way about Jones's beating that I felt about Ted Bundy's execution. I was glad that Bundy somehow became fatally overheated and then cooled down to room temperature; but given my opposition to capital punishment at the hands of the state, I would have been much happier had the heating been carried out by a bolt of lightning.
Or, better yet, by a rocket-propelled grenade fired by one of his would-be victims. Even with all the gun laws that have been imposed and the absurd lawsuits now encouraged among predators, in some jurisdictions citizens are still permitted to resist and informally punish criminals whom they catch in the act. Resisting, if successful, tends to segue into punishing, and usually in the patches of authentic America that still exist no one's too interested in asking questions afterward unless the punishing is too obviously disproportionate.
But cops aren't permitted to segue, at least not legally. The question is usually moot, anyway, because unlike private security guards and other private citizens, cops rarely catch criminals in the act. (I'm talking about real criminals, of course those who initiate force or fraud, not those who sell unapproved drugs or sexual services and get "stung" by police spies.) Cops are the official foot soldiers of the monopoly justice system, and the only way such a system can even pretend to administer justice is in cold blood and through routinized bureaucracy not in hot blood and on the streets.
Which is to say, kicking a man when he's down never looks good when carried out by uniformed professionals. It's hard to represent kicking as an expert, orderly, restrained, and professional means of subduing a suspect. And subduing is all that uniformed, bureaucratized, routinized professionals are supposed to do. Any educating of felons is supposed to be reserved for other bureaucratized, routinized professionals, and they're supposed to rely on a much less muscular approach.
Thomas Jones wound up receiving some constructive chastisement that, in itself, was quite just; but it was unjustly administered. That may seem contradictory, but then statism is full of contradictions.
Jonah Goldberg, editor of National Review Online, writes apropos of the Jones case that the cops were administering the "hidden law," defined, he says, by Jonathan Rauch as "'the norms, conventions, implicit bargains, and folk wisdoms that organize social expectations, regulate everyday behavior, and manage interpersonal conflicts.' Once you start looking for examples of the hidden law," Goldberg goes on, "you will see it everywhere. The shotgun rule for car seats is part of the hidden law. Stealing a friend's girl is against the hidden law, and so is taking credit for somebody else's work. Table manners, restrictions on double-dipping potato chips, and common courtesy are part of the hidden law." ("Restoring the 'Hidden Law' / Making sense of the Philadelphia beating and the social order as well," National Review Online, July 17.)
The hidden law, according to Goldberg and Rauch, exists or should exist in parallel with public, official law. And it applies or should apply in situations more serious than those involving potato-chip indelicacy. That is, in cop situations. "Cops do not merely arrest people, they enforce social norms where social norms are the least entrenched and the most needed," Goldberg writes. "In my dad's old neighborhood, a cop was often more likely to slap a kid around than actually press charges for something like shoplifting." Goldberg also observes: "If shooting at a cop does not have a high cost on the street then few cops will be inclined to get out of bed in the morning."
It is somewhere in here, of course, that I get off the bus.
The hidden law was hidden because you didn't necessarily want to rub people's noses in it. As I read Goldberg, he's saying that the hidden law in practice was like a grease that could be hastily applied to cure certain aggravating squeaks in society without having to take the whole thing apart on the front lawn when company was coming. State officials, even, could apply the grease without involving "the state" as an entity. And without trapping themselves within an official, public record that would, at some point, have to be justified.
Justification time has arrived. Enforcement of the hidden law, Goldberg indicates, has been enormously complicated by today's lawyers: "With their hyper-rationalism and self-righteousness intact, the lawyers declared that if something is wrong, it's wrong for everyone and therefore it must be illegal for everyone. Conversely, if something is legal for someone, it must be legal for everyone."
Goldberg is on to something, I think, but not everything, and maybe not the main thing. Our oversupply of lawyers and their relentless penetration into every nook and cranny of our daily lives are a symptom, not a cause. The New Class of lawyers are merely weeds growing among the roots of leviathan; they flourish as it flourishes.
Looking back from the era of unlimited government to the days of somewhat limited government, I sometimes call the latter the era of the Old Republic, less to praise the former age than to condemn our own. Like the modern Empire, the Old Republic featured a ruling class; but unlike our ruling class, the old rulers while generally oppressive and exploitative like all rulers did not deliberately and publicly wage a special war of oppression and exploitation against the traditional core of the American population, nor did they deliberately and publicly wage such a war against normality. And their power was limited.
In those days, the hidden law was popular with the ordinary Americans who mostly enforced it, but at the same time it usually served the purposes of the ruling class. If I may fiddle with Goldberg's categories, often the hidden law was not very hidden at all. It was used to keep subordinate traditionally subordinated classes of people, including the less-favored varieties of immigrants and, of course, Negroes. For instance, tricky technicalities in voter registration kept Negroes from voting in the South while at the same time keeping the veneer of republicanism respectable enough to sustain popular faith in the glories of Our System of Government. In terms of public-school funding, "separate and unequal" was actually more common than "separate but equal," in line with assumptions that whites would benefit more from education and in light of the fact that Negroes did not provide as great a share of school-supporting taxes as whites. Given a system of state schooling, "separate and unequal" kept education budgets from getting out of hand and provided pretty stony ground for the growth of any mad egalitarianism that might make education budgets positively explode. Such laws were formal insofar as they were publicly promulgated statute laws, but their aim and effect were informal, that is, understood with a wink and a nod, and preferably not subjected to analysis.
Likewise, parents usually knew better than to try and enroll severely crippled or retarded children in the public schools, even though those same parents were taxed for the upkeep of the schools like everyone else. Instead, ordinary schools whatever their formal rules felt free to encourage parents to pack their children off to state residential institutions, and officials at those institutions, in turn, might even pressure parents to allow them to sterilize their kids.
And as for what went on in the nation's prisons and jails, wardens and sheriffs were practically sovereign. Whatever the requirements of formal law, no one but a handful of marginalized reformers was inclined to look very hard at the treatment of prisoners or the conditions under which they suffered except when, every few years, some Nazi- or Soviet-level atrocity leaked out and caught the imagination of a bored reporter.
The "hidden" or informal law was applied to squeaks and rattles in the system of limited-government republicanism that then prevailed. In an overall atmosphere that favored the white majority, the reflexively law-abiding, and the developmentally normal, it helped make practical a system that also ruled, sometimes shakily, over considerable numbers of nonwhites, congenital law-breakers, and what were impolitely termed "defectives." I have praised some of the "rough justice" handed out to genuine offenders in the days of the Old Republic, but there's no doubt that the system also depended on handing out quite a lot of rough injustice.
Now the ruling class does wage war on the white majority and on normality, and its bureaucrats, snoops, and regulators are everywhere. Its power as much as power can be in the messy world of men, time, and events is, in principle, unlimited. Naturally, the ambit of old-style hidden law has shrunk drastically. So now we find children in public-school classrooms on gurneys and hooked up to IVs, at vast expense to the taxpayer; we find taxpayers forced to finance air-conditioning and weight rooms in prisons; we find a whole subpopulation dependent on the state and trained to demand "welfare rights" at the expense of their productive neighbors; and we find judicial dictators pursuing a mad egalitarianism in state schooling, even at the cost of bankrupting entire cities.
Old-style hidden or informal law, under systemic pressure, is vanishing. But the vast weight of today's ubiquitous rule books and the bureaucratic priest class that controls those books don't necessarily smother all kinds of hidden law equally. In fact, our modern rulers freely break, or "reinterpret," their own rules when it suits them. They have to, in order to smother their own regime's characteristic squeaks and rattles.
In the new totalitarian political culture, where the police are responsible for enforcing volume after volume of unjust, tyrannical law that is exposed for all to see, encouraging them to continue enforcing any hidden law is a very bad idea. That "hidden" enforcement isn't always going to be politically incorrect, after all. It isn't always going to be directed at Negro carjackers and the like, and it isn't always going to embarrass local elites. It's going to be directed at peaceful drug users, gun owners, racial discriminators, school refuseniks, and tax resisters, too, and then it's going to receive a wink and a nod from local and national elites alike. Indeed I tremble to think what the cops, both local and national, consider "social norms" these days.
I wrote, above, that citizens are still permitted to defend themselves in some jurisdictions, despite the gun laws and lawsuits by predators that have proliferated in our time. But it's the gun laws and lawsuits and other policies favoring predators that have become the dominant trend, as the unlimited state attempts to resolve at least one contradiction of statism in its favor by replacing any surviving citizen-patriots the people who discover and enforce true law with ignorant, terrified, helpless sheep.
Do we want the hidden law to comport with justice? Then, Goldberg notwithstanding, we must let the police remain in bed. We must let citizen-patriots enforce the hidden law, and we must let them do so in a society where freedom is no longer hidden.
July 22, 2000
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