Originally appeared in Reason magazine, February 2000.
Rediscovering the social norms that stand between law and
libertinism.
LATELY I HAVE BEGUN TO UNDERSTAND how a Methodist must feel when
everyone he meets calls him a Lutheran. People often describe me as
a libertarian. All right, it's true that I often write in a
skeptical vein about government. Yes, I have come to see a higher,
Zen-like power in leaving things alone. I generally do subscribe to
H.L. Mencken's dictum, "All persons who devote themselves to
forcing virtue on their fellow men deserve nothing better than
kicks in the pants." But still. I know, in the visceral and
insistent way the Methodist knows he is not a Lutheran, that my
worldview is not quite congruent with what most people today regard
as libertarianism.
It is hard to evade one label, however, when you can't offer
another. If not "libertarian," then what? For a while, I tried
"curmudgeon." A curmudgeon, in my own enlightened sense, is a
person who is against improving things for the sake of it. (These
days, "curmudgeon" is not the same as "conservative," because, ever
since Barry Goldwater, many American conservatives have been
radical reformers.) I tried "radical incrementalist." A radical
incrementalist is a person who seeks to foment revolutionary change
on a geological time scale. The trouble is that "curmudgeon" and
"radical incrementalist" both describe my temperament but say
nothing of my beliefs. So I gave up. And then, a little while ago,
I figured it out. I am, I discovered, a soft communitarian.
A what? You roll your eyes, and I can't blame you. Bear with me,
however. There is a fair amount of undesignated soft
communitarianism about these days, and it signifies the emergence
of an important sort of thinking.
A soft communitarian is a person who maintains a deep respect
for what I call "hidden law": the norms, conventions, implicit
bargains, and folk wisdoms that organize social expectations,
regulate everyday behavior, and manage interpersonal conflicts.
Until recently, for example, hidden law regulated assisted suicide,
and it did so with an almost miraculous finesse. Doctors helped
people to die, and they often did so without the express consent of
anybody. The decision was made by patients and doctors and families
in an irregular fashion, and, crucially, everyone pretended that no
decision had ever been made. No one had been murdered; no one had
committed suicide; and so no one faced prosecution or
perdition.
Hidden law is exceptionally resilient, until it is dragged into
politics and pummeled by legalistic reformers, at which point it
can give way all at once. The showboating narcissist Jack Kevorkian
dragged assisted suicide into the open and insisted that it be
legalized (and televised). At that point, the deal was off. No one
could pretend assisted suicide wasn't happening. Activists framed
state right-to-die initiatives, senators sponsored bills banning
assisted suicide, and courts began issuing an unending series of
deeply confused rulings. Soon decisions about assisted suicide will
be made by buzzing mobs of lawyers and courts and ethics
committees, with prosecutors helpfully hovering nearby, rather than
by patients and doctors and families. And the final indignity will
be that the lawyers and courts and committee people will
congratulate themselves on having at last created a rational
process where before there were no rules at all, only chaos and
darkness and barbarism. And then, having replaced an effective and
intuitive and flexible social mechanism with a maladroit and
mystifying and brittle one, they will march on like Sherman's army
to demolish such other institutions of hidden law as they
encounter.
The enemy of hidden law is not government, as such. It is
lawyers. Three years in law school teach, if they teach nothing
else, that as a practical matter hidden law does not exist, or that
if it does exist it is contemptibly inadequate to cope with modern
conflicts. The American law school is probably the most ruthlessly
anti-communitarian institution that any liberal society has ever
produced.
For eons, hidden law has coped sublimely with adultery. As long
as the adulterer was discreet and the wife either didn't know what
was going on or was willing to pretend she didn't know, everybody
else also pretended not to know. Public law's rather different way
of handling the situation was on display in the
Clinton-Jones-Starr-Lewinsky affair, and it was not superior. So,
also, for sexual conduct involving adults in the workplace. Hidden
law was imperfect for situations where flirting got out of hand,
but today's sexual harassment law, in which platoons of lawyers
scour office e-mails for hints of unwelcome overtures, is proving
itself not just imperfect but grotesque.
What about the "soft" part? Why a "soft" communitarian? Because
there is a harder variety that replicates the lawyers' mistakes in
a communitarian direction. The hard communitarian, seeing that
hidden law has broken down, demands a series of public laws or
subsidies to re-establish it. Require children to support their
aging parents, require students to do involuntary volunteer work,
make voting mandatory - that sort of thing. The archetype of the
hard communitarian is Lee Kwan Yew, the former prime minister of
Singapore. In America, an example might be Rudolph Giuliani, the
mayor of New York City.
We softies, by contrast, understand that hidden law works
precisely because it is not formal: The very act of formalizing it
destroys it. We believe, therefore, that public law's next big
project should be to sit down and shut up. That is, public law
should be careful, infinitely more careful than at present, not to
burst into every room it sees and immediately begin breaking
crockery. It should strive to stay out of hidden law's way, rather
than obliviously trampling it with each elephantine footfall. When
personal behavior needs regulating, we soft communitarians prefer
exhortation to legislation and shame to jail. A good, albeit
controversial, example of an effective soft-communitarian activist
is Bill Bennett, with his Book of Virtues, his "index of leading
cultural indicators," and his denunciations of gangsta rap. Bennett
says he opposes legal regulation of song lyrics, but he certainly
does not oppose confronting recording company executives and
demanding that they read aloud some of the lyrics they sell. He
practices censoriousness rather than censorship. That is "soft" in
a nutshell.
We soft communitarians are soft in a further sense: Like F.A.
Hayek (who in some ways was a soft communitarian), we do not
believe in taking an uncritical attitude toward social norms, even
deeply embedded ones. With all due respect to folk wisdom, I favor
gay marriage, even though nothing could be less traditional. Now
that we know that homosexuals exist - that they are not just
neurotic heterosexuals who need a few jolts of electroshock - the
extension of the nuptial contract to them is not a sundering of
tradition but an extension of it. Thoughtful criticism allows us to
see this. Soft communitarianism is not blind obeisance to
tradition. It aspires to be rigorous rather than rigid.
An interesting question about soft communitarianism is: So what?
Who could be against such a mushy and innocuous doctrine? Or who,
anyway, apart from everyone who ever went to law school? You might
point out that soft communitarians can be found toward the drab
center of both political parties, where everyone is for "values"
and "civil society." You might also note that soft communitarianism
is perfectly consonant with most major strands of libertarianism.
The reason I am often mistaken for a libertarian - even though I am
more comfortable talking about rules than rights, I prefer
reasonableness to reason, and I care about government's
effectiveness rather than its size - is that my soft
communitarianism leads toward a persistent skepticism about the
oozing encroachment of public law into every pore of daily life.
Maybe the soft communitarian and the libertarian, like the
Methodist and the Lutheran, are just two versions of basically the
same thing.
But not so fast. The fact is, many libertarians I know react
with discomfort, often bordering on hysteria, to soft-communitarian
talk. They feel that if their life is not the law's business, then
it also is nobody else's business. They are deeply uneasy with
social instruments like shame or opprobrium, which smack of
big-nosed authoritarianism in a new guise.
And here a certain sort of libertarianism comes full circle to
join hands with a certain sort of leftism. The libertarians and the
leftists come to blows over economic issues - who should run the
health care sector, for instance - but they glare in hostile unison
at the soft-communitarian project (which, remember, also enlists
some libertarian types of its own; this gets complicated).
Underlying their hostility is an implicit theory of coercion that
is worth grappling with, because it lies at the heart of today's
culture wars. In that connection, consider Michael Warner.
Warner is, to begin with, an English professor at Rutgers
University. But he is probably better known as a leading queer
studies scholar. And, more than that, he is an activist, closely
associated with an extremely controversial group called Sex Panic!,
which organized in the mid-1990s to oppose what it regarded as the
squelching of sexual freedom by gay and straight conservatives
alike.
I ought to say, not that it matters, that I am discussed in
passing in Warner's new book, The Trouble With Normal: Sex,
Politics, and the Ethics of Queer Life (The Free Press).
Warner quotes me on gay marriage and says I am "more honest than
most" of his ideological adversaries: a compliment I can return in
kind. Because The Trouble With Normal is, in large
measure, an answer to Andrew Sullivan and other gay conservative
advocates of homosexual marriage and assimilation, and because it
concerns itself with various intramural disputes in the gay world
(strategies for AIDS prevention and the like), booksellers will
confine it to the "gay interest" shelves. That is a pity. Warner is
that rarest of writers, an honest extremist who is smart enough to
see through to most (though not all) of the depths of his own
positions and who is fiery enough not to flinch. His agreeably
written and commendably concise book thus turns out to be, among
other things, a 200-proof distillation of the case against soft
communitarianism.
For example, Warner is shrewd enough to see that the standard
defense of gay marriage by gay activists is wrong. This defense
holds out marriage as just one more lifestyle option. It is
available to heterosexuals, so it should be available to
homosexuals as well, and that's all there is to it. But this is
wrong. Marriage, as Warner aptly puts it, is "a social system of
both permission and restriction." Spouses and society alike view
matrimony as something special and exalted; it is not merely
allowed, it is encouraged. Far beyond merely creating legal
arrangements, it is freighted with the social expectations and
implicit requirements of hidden law. It is a bargain not just
between two people but between the couple and society: The spouses
agree to care for one another so that society does not need to, and
society agrees in exchange to view their commitment to each other
as inviolable and sovereign and, indeed, sacred.
Traditionalist conservatives understand that marriage confers
special status under hidden law, which is why they so fiercely
oppose extending it to homosexuals. I understand that marriage
confers special status, which is why I favor extending it to
homosexuals. And Warner, piping up from the radical left, also
understands marriage's special status, which is why he opposes gay
marriage. When marriage is available to gay people, he understands,
gay people will be expected to marry, and married homosexuals will
conduct themselves with the same (let's face it) smugness that
characterizes married heterosexuals. "The effect," Warner says,
"would be to reinforce the material privileges and cultural
normativity of marriage." Homosexuals who do not marry will be
regarded as less respectable or less successful than those who
do.
In Warner's view, that would be a profound miscarriage of social
justice. For Warner is against not just the sexual norms of the
moment but the very notion of sexual norms. That is not to say he
would decline to pass harsh judgment on a rapist. But where
consensual sex is concerned, he insists, society should just butt
out. Not only should the law stay out of the bedroom (a standard
libertarian position), so should norms, because all norms create
"hierarchies of respectability."
Warner opposes sexual norms for two reasons. The first is that
he is a radical egalitarian. He believes in the moral virtue of
diminishing differences - moral, economic, or political - between
people and groups. There is no arguing with a radical egalitarian
on that point, so I won't.
The second reason goes a little deeper. Warner makes a move
which ordinary classical liberalism rejects out of hand but which
has an undeniable kind of deep sense to it. In standard liberal
theory, coercion and force involve violence or the threat of
violence: "Your money or your life." Because, in modern
democracies, the state possesses a monopoly on legitimized
violence, a coercive policy will be, by definition, a state policy.
Nothing that private people or institutions do by way of criticism
or exclusion is coercive.
To Warner and others of his school, that view of coercion is
laughably narrow and naive. Norms use the clubs of stigma and shame
to punish deviants, nonconformists, and radicals. Many people would
much rather be jailed than humiliated or ostracized, which is one
reason American prisons are so crowded. In a psychological sense,
the denial of respectability can be just as coercive as the denial
of physical freedom. Nowhere in his book does Warner argue the
theoretical case for his extended notion of coercion, but it is
apparent on every page. He regards moralizing as a kind of
mandating, speaks of "the effect of coercion in the politics of
shame," and refers to the "deep coerciveness" of the sort of
thinking that privileges marriage. In his world, all social norms
are more or less coercive, which means that all of them are
oppressive when applied to consenting adults' sexual or social
lives.
Whatever its theoretical shortcomings, this sort of thinking
exerts a broad attraction in today's America. Lots of people view
Gary Bauer's or Jerry Falwell's strident condemnations of the
"homosexual lifestyle" as being every bit as oppressive and
intrusive as, say, sodomy laws. For that matter, lots of people
believe that moral criticism causes violence by fostering hate, or
that moral criticism actually is violence ("words that wound").
Many people in America - a majority, maybe - feel queasy talking
about "virtue" and "vice," because that sort of talk implies
judgmentalism, which implies a "hierarchy of respectability."
People prefer sanitized expressions like "values." I would be
curious to see what would happen if you visited a randomly selected
college campus and asked the students whether it is right to judge
other people's lifestyles. My guess is that most students would be
appalled at the notion.
What is useful about Warner is that, being both bright and
radical, he has no use for the mushy middle, where most ordinary
people are content to leave such ideas. He understands the
implications of his view of coercion and does not shrink from
embracing them. The sort of nightmare society that a Falwell or a
Bauer dreams up in order to scare donations out of church ladies is
precisely the sort of society Warner wants to create. To be
sexually free, we need to be able to explore all possible sexual
avenues with an open mind, and thus without fear of shame or
stigma. Keeping certain sexual behaviors hush-hush means that most
people never think about trying them, which amounts to "constraint
through ignorance." There should be no more closets of any sort.
Rather, says Warner, let "all the gerbils scamper free."
And so, in the end, it is not gay marriage Warner opposes: It is
marriage, and all the conventional notions of shame and
responsibility that go with marriage. He does not actually demand
that marriage be abolished, because, being a pragmatist, he would
rather undermine it by extending all its benefits to unmarried
partners - in fact, to everybody. He is likewise not foolish enough
to imagine that sexual norms could be eliminated anytime soon, but
he believes that the proper role of socially enlightened activism
is to favor de-norming at every turn.
Although Warner's view is extreme, it is more influential than
you might suppose. All three of the states and all but a handful of
the municipalities that offer domestic partner programs for their
workers include opposite-sex couples, who, of course, could
perfectly well get married if they wanted the benefits of marriage.
The large majority of corporate partnership programs also allow
heterosexuals to participate. Who is to say, after all, that
marriage is better than some other arrangement? Only recently, and
with great effort, was the national welfare debate retrieved from
the hands of nonjudgmentalists who argued that government's job was
to help the indigent, not to judge them.
I am not a soft communitarian because I think shame and stigma
are sweet and lovely things. They are not. A weakness of the
soft-communitarian position is its unwillingness to admit the truth
in much of what Warner says. In some respects, norms are oppressive
and shaming is coercive. Having admitted this, however, one can go
on to see what Warner, and other anti-communitarians, do not: that
soft communitarianism is less oppressive, usually much less so,
than the real-world alternatives. Shame and hypocrisy are not ideal
ways to deal with philanderers and small-time mashers, but they are
better than Paula Jones' litigators and Kenneth Starr's
prosecutors. Shame is valuable not because it is pleasant or fair
or good but because it is the least onerous of all means of social
regulation, and because social regulation is inevitable.
The implication of Warner's view is that the only just society
is one without any sexual norms regulating the conduct of
consenting adults. But, of course, a normless society is as
inconceivable, literally, as a beliefless individual. What would a
culture without shame or guilt or "hierarchies of respectability"
look like? How is a shameless society even imaginable, given the
unbudgeable fact that humans, like dogs and chimpanzees, look to
each other for guidance and approval and clues on how to
behave?
The fact is, there are going to be norms; the question is
always, What sort of norms? In Warner's world, the norm would be
one of extreme social permissiveness. People who expressed anything
but approval of sexual adventurism would be stigmatized: shamed for
engaging in the oppressive act of shaming. If you don't think this
can happen, ask any student or professor who has been on the
receiving end of a P.C. vilification campaign.
It is also a fact, I think, that shame is a core constituent of
a social animal's temperament. Human beings crave the admiration of
other human beings more than they crave anything else - even, in
many cases, life. Warner seems to view shaming as a political
sanction that, with enough effort, we can teach ourselves not to
use. But not to shame or be ashamed is like not loving, not
laughing, not eating or talking. So the Warnerian project is to
repeal not just shame but humanity. In that sense, Warner's utopia
is like the Marxist utopia, which repealed greed. My guess is that
Warner's normless sexual utopia would be about as successful, and
about as good for the downtrodden and marginalized, as Marx's
classless economic utopia turned out to be.
Oddly, the words child and children scarcely ever appear in
Warner's book. This is an astonishing blind spot in a work of
social criticism. Being a defender of gay marriage, I'm as tired as
the next fellow of people who use children as a cover for all sorts
of authoritarian arguments. Still, Warner seems to find the very
concept of parenting unfathomable. The thought that sexual
adventurers might be expected to keep certain of their activities
out of the sight of 10-year-old boys and girls, in exchange for
being left alone, does not seem to have occurred to him. ("No,
darling, that's not a game. Those two people are doing what we call
`fistfucking.'") If you believe, as seems plausible, that there is
a genuine clash of interests between parents and sexual
adventurers, then the old dictates of hidden law - "keep it out of
sight," for instance - seem to be a pretty ingenious way to strike
a balance.
Some especially conservative parents are indignant because
sexual adventuring is too visible, while some especially radical
adventurers are indignant because they are not allowed to copulate
in front of City Hall. Everyone else wishes the conservatives and
the radicals would stop pushing the envelope before the bargain
collapses altogether, leaving nothing but cops and politicians and
lawyers to tell us how to behave. In the end, the man who wants to
replace norms with nothing is the best friend of the man who wants
to replace norms with laws. Dr. Kevorkian no doubt thinks of
himself as a great champion of the right to die. In fact, as is
obvious to everybody but himself, he is a godsend to opponents of
assisted suicide. Michael Warner is the Jack Kevorkian of sexual
liberty.
The good news is that Warner will fail in his mission of
de-norming the world. He will be unable to persuade American
homosexuals to rise up and rebel against hidden law and its Main
Street codes of behavior. The tide is running against him, and he
knows it. Perhaps the most heartening aspect of Warner's book is
its rage and despair over what Warner regards indignantly as the
taming of homosexual politics and culture, the growing ascendancy
of "gay" over "queer." Homosexuals are moving toward embracing the
contract with hidden law. They want to follow the rules and be
respectable, and the heterosexual majority seems more and more
inclined to let them.
The further good news is that gradually, quietly, Americans are
becoming aware of the existence of hidden law. Slowly - OK,
sometimes very slowly, and with the legal establishment still
winning more battles than it loses - Americans are beginning to
rediscover the lost continent of convention that lies between law
and libertinism, between banning and condoning. They are, I like to
hope, beginning to see that the hidden constitution, with its
elaborate rules of etiquette and its byzantine architecture of
pretense and its elaborate hierarchies of respectability, is much
like the written constitution: It restricts us so we can be
free.