Hidden Law v. Legalism

Formal laws and less formal social codes coexisted peacefully, until bureaucratic legalism arose.

BY: Jonathan Rauch

Brought to you by The New Republic Online

Last September, Ashley Smith, a student at Garrett Middle School in suburban Atlanta, brought to school a Tweety Bird wallet to which she had attached her keys with a 10-inch chain. The school awarded her a 10-day suspension for violating its zero-tolerance weapons policy. According to the Associated Press, "School officials said Ashley and her parents ... knew chains were banned." Ashley was baffled. "It's only a little chain, and I don't think it can really hurt anyone," she said. Well, rules are rules.

Is it just me, or are we reading more and more of this stuff? Last year, four kindergartners in New Jersey received three-day suspensions for pretending their fingers were guns and "shooting" at each other while playing cops and robbers. Then there was the 12-year-old girl expelled in Nebraska, last year when she brought a pair of blunt-edge safety scissors to school. (The expulsion has since been overturned.) Not to mention the Maryland elementary school that banned tag because it violated the "no touching" policy. And on and on.

You can find lots of explanations for these kinds of legalistic irrationalities. You could say schools are haunted by the specter of Columbine, or terrified of lawsuits. Or that, in a country of more than 100,000 schools, there will always be excesses. Still, a society's absurdities say a lot about its dysfunctions. And, these days, those dysfunctions frequently stem from a mindless legalism that is insinuating itself into every pore of daily life, often demolishing a quieter, suppler kind of law--Hidden Law.

In recent years, economists and other social scientists have begun paying attention to the remarkable efficiency of the unwritten customs, informal understandings, and other social codes--codes that everyone understands and no one writes down. In his 1991 book "Order Without Law: How Neighbors Settle Disputes," Robert Ellickson of Yale Law School carefully mapped how, in Shasta County, California, ranchers developed informal rules to settle problems regarding trespassing cattle. These norms were much more important to the ranchers than were statutory laws about private property; many ranchers didn't even know what the statutes said.

Coexisting with these tacit codes are what you might call "Main Street Codes"--rules governing how "decent" citizens behave. ("Decent" people help the cops, welcome new neighbors, don't let their lawns or kids run wild.) Then there are "Old Wives' Rules" that regulate conduct at a more personal level. Written on the bones of every hausfrau or yenta, these rules--such as the requirement that a man marry a woman if he gets her pregnant--are the main regulators of love and romance.

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