Keeping abortion out of sight and mildly stigmatized is a good way to keep it legal, available, rare, and morally disreputable. I grant you this is an uneasy compromise, unsatisfying if you believe abortion is either murder or a civil right. But for pro-lifers it is better than public subsidies and TV ads for clinics, and for pro-choicers it is better than bans and coat hangers, and for the broad middle it allows life to flow peaceably around an otherwise intractable moral conflict.

Where Formal Law is all thumbs, Hidden Law often works wonders. Universities have always had speech codes; the only innovation was to write them down. In the old days, the rule for insults and epithets was: Don't say obnoxious or abusive things, but if you do, say them only rarely and in a fit of temper or drunkenness so you can apologize and we can all pretend you didn't really mean it, though we all know you did. Only if your obnoxiousness crossed an invisible but decidedly real line did the community hear or see it, in which case you got a talking-to, or even got kicked out. And before speech codes came along in the 1980s, American campuses were not known as places where the slinging of vicious slurs was a big problem.

Hidden Law has always had enemies, notably puritans and certain types of reformers who believed it their duty to point out what others pretended not to see. But the puritans and reformers functioned as useful, even essential critics. Hidden Law, after all, can be as unjust or ill-founded as any other law.

Think of the well-intentioned, but misguided and inhumane, rule that governed homosexuality. If gays pretended to be straight, straight people pretended to believe them. Any homosexual American, including me, will affirm that this Hidden Law--otherwise known as the closet--was soul-destroying. Moreover, hypocrisy for its own sake, unmoored from any useful social compact, is merely corrupt. Up to a point, therefore, puritans and reformers strengthen Hidden Law by updating it and keeping it humane.

Only recently has a really deadly enemy emerged: a systematic ideology that is equipped with powerful institutional support and has the effect, usually unintended, of damaging or demolishing Hidden Law in encounter after encounter. That ideology is Bureaucratic Legalism: the belief that the way to settle practically every conflict is through an elaborate and highly articulated set of procedures.

"Belief" is the key word in that sentence. Law itself is not the problem. The principles of Western law--due process, transparent rules set down in advance, equal application of the rules to all comers and so on--are among civilization's greatest triumphs. The problem comes when people decide that if a little legal process is a good thing, a great deal of legal process must be a lot better. Then you get Bureaucratic Legalism: the notion that if you get the process right, the outcome must also be right.Bureaucratic Legalism is generally oblivious to the existence of Hidden Law. Where it sees no existing formal rules, it strives to make some. Where it sees existing rules applied sporadically or inconsistently or hypocritically, it strives for uniformity and consistency.

You could call this the "zero-tolerance" problem. A kindergarten kiss is an "unwanted advance" and is therefore treated as sexual harassment. Squirt guns are guns and therefore violate weapons policies. Nurofen, the over-the-counter decongestant, contains a stimulant, and therefore a Romanian gymnast who takes two pills for a head cold must be stripped of her Olympic gold medal for using a banned drug.

It's tempting to see such excesses as flukes. But Bureaucratic Legalism, like all outcome-blind bureaucratic ideologies, pushes inexorably toward extremes. It cannot, by its nature, comprehend such rules as: "Up to a reasonable point, targets of slurs are responsible for swallowing their pride and getting on with life." Or: "Up to another reasonable point, if targets of slurs punch their tormentors in the nose, authorities will pretend not to notice." Or: "Beyond that point, if the authorities must notice, they will do something that seems reasonable, which they'll make up as they go along based on what they know of the situation and the characters of the people involved."

To Bureaucratic Legalism, those sorts of rules are intolerable. They are "arbitrary and capricious," or "above the law," or "taking the law into your own hands."Legalists, if they notice Hidden Law at all, sometimes say they are merely supplementing it. Often, however, their intrusion is crippling. Formal Law tends to block the cooperation and reconciliation that are essential to Hidden Law. When proliferating bureaucratic rules magnify conflict and block conciliation, they give rise to what is, in effect, antisocial law.

Daily life in a dense and diverse society is full of moral disputes and interpersonal collisions. Civilized life must be reasonably free of the fear that these everyday disputes and collisions may, at any moment and for no clear reason, suddenly explode into intolerable ordeals.

In that respect, the world of hair-trigger speech codes and zero-tolerance school rules is a good deal less civilized than the world of genteel hypocrisy.

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