Quote:
Originally Posted by scottw
"And that’s what’s so terribly depressing about all of this. We live in a country where more and more people are terrified to work things out themselves in a conversation with someone they disagree with. That’s why I didn’t like S.B. 1062 — because people on the right found it necessary and because people on the left made it necessary."
http://www.nationalreview.com/node/372282/print |
Another incisive and artistically written essay. I don't know about these "conservative" writers. They seem to possess those qualities which some here think only "liberals" have. Maybe they're closet liberals. Or, maybe they're the real liberals. And those who profess to be politically "liberal" are really authoritarians who must impose their prescription of how we must act--sort of like Spence's imposing freedom.
Which leads to another Spencist maxim: "everything has to be evaluated on its merit." That would apply far more in Goldberg's hidden law than in prescribed law. Rational human beings who are free to observe, speculate, and decide on the basis of their individual experience are not totally bound by prescribed law. They can act in accordance to their perception of individual merit. A policeman can decide on his own to suggest that conflicting parties talk it out rather than strictly imposing the letter of the law.
But those who are caretakers of the prescribed law don't have as much latitude as a policeman on the beat. If a conflict rises to the level of criminal or civil charges to be decided in a court of law, judges and juries must decide on the merit of the case as it falls within the prescription of the law. Now, juries may nullify the law if they feel or believe it would be too harsh or unjust to apply to the "merit" of the case, but judges, though they have some latitude, are not allowed to nullify the law. They can only act within the bounds of law. To do otherwise would be to destroy the law and the concept of law.
The latitude is constricted even further as a case is appealed to higher courts where there is no jury, but only judges who decide. A supreme court is the final defender of the law more than a defender of individual merits, and if the members of that court decide outside the bounds of law, rather than being defenders of the law, they nullify the law permanently.
So the separation of prescribed law and hidden law is critically important. It's true, as Goldberg says, that we live the greater, greatest, part of our lives without constant attention to prescribed law. And that our lives are more comfortable and effective because of that. So, when prescribed law becomes too dominant, when it pervades our everyday existence to a degree where we must be minutely cognizant of it, people are more prone to be, as Goldberg says, "terrified to work things out themselves in a conversation with someone they disagree with."
Then, what is the necessity of prescribed law if hidden law is so effective when, as Spence says, "everything has to be evaluated on its merit"? That essentially asks the question "why have government?" Well, of course, government is in our "nature." Two people discussing and resolving differences is a form of government. Even a single person deciding the best course of action on its own "merit" is a form of government--self government. Families, cultures, societies, States all must, for cohesion, resolve differences, and the larger the entity, the less opportunity for everyone to discuss and resolve those differences. So hidden law cannot hold a large society together.
This seems like it should be obvious and not worthy of discussion. But the devil is in Spence's merits. The merits of different prescribed law--the law that glues the larger society together.
We are having a debate in our time on which type of law, which type of government, is the best. Is it better to have a law, a government, which allows its vast number of citizens to have local discussions on how to lead their lives on personal merit, while setting a limited prescription on its own duties in respect to protecting the rights of its citizens to so act. Or is it better to have a government which can prescribe laws that dictate to citizens how they must act.
The first type, what we call constitutional government, has the advantage of actually being more evolutionary, though it is perceived to be static. It allows change over time without abandoning its self-limited duties because those duties don't prescribe against individual merit. They actually give those merits encouragement to fulfill themselves. The other type, what we refer to as progressive, though it is perceived to be more evolutionary because it presumably changes, in practice, because it removes power from individuals and smaller units of society and translates that power to prescribed law and all-powerful government, in practice it limits the ability of self and local government, and dictates against the hidden law by which individuals on their own merit discuss and govern amongst themselves. As such, progressive government hinders the natural, organic change that evolves through the merit of individual perceptions of themselves and of their fellow citizens through free experience.
One small anecdotal experience may apply here--I recall a Mr. Duditch, a self-realizing man with a strict and sound moral code, but having a bigoted view of blacks. This was when Detroit was still predominantly white, but changing fast and blockbusting was being used to move blacks into white neighborhoods with the effect that whites would move out and leave the space and housing for blacks. The first black family moved into the neighborhood, and Mr. Duditch was very disturbed. It turns out that the black family was not the stereotype that Mr. Duditch expected. They kept their property immaculate, grew flowers (Mr. Duditch was an avid gardener), were polite, and just not what blacks were supposed to be. Mr. Duditch came to like them, have conversations with them, and wound up preferring them to some whites in the neighborhood. He didn't come to his new perception because he was ordered to by some prescribed law. Not by some government mandate that he must do such and such or be fined. He came to it as a free man who judged by his experience--by the hidden law of people discussing amongst themselves rather than by prescribed law. The change of heart did not take generations or require the 23d century to arrive.
So, as Reagan said years ago, it still remains a time for choosing. Do we want to be individually free, on our own merit, to live our lives as we choose and because of what we experience, or must we be forced to live them according to a prescribed law, one which constantly changes to suit the elusive merit of the moment, a merit decided by a few experts on how we must act and be.