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When Laws Replace Common Sense
Written By George F. Will - Sunday, December 24, 2000

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 Company

Former News Features

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