Law | Blogstitution

Wow, I really wish I would have read a piece like this before going to lawschool. I never looked at the law as an intrusion into religious and personal reality before. Very interesting, albeit disturbing.

What is culture? Sometimes we use that word as the opposite of economics or law. Here I mean something very specific. Culture, as James Davison Hunter put it, is the power to name reality.

If you doubt that, think about divorce for a minute…

When the law actually endorsed unilateral divorce, it changed the terms of everybody’s marriage. Now the happily, romantically married may not notice this in practice. But not only the bad marriages, but the so-so marriages, the good-enough marriages were and are profoundly affected by the law — not only directly, but by the cultural changes in the public understanding of marriage that the law only partly caused and but certainly reinforced and institutionalized.

If you have a right to divorce at will, what you lose is the right to make an enduring marriage — at least if you live in consensual (shared) reality.

I can still hold the view that divorce is wrong — that I have no right to divorce because I made a vow to stay married. But with the advent of unilateral divorce, my views became a privatized view of marriage, not part of the shared reality defined by the law. We privatized this view of marriage precisely when the law privileged the progressive view of divorce.

Maybe you think this was a good change. I will not stop to argue the point now. What I’m trying to point to (for those geniuinely striving but challenged to understand my argument) is that the law mattered. And that the consequences of this legal change was not, in a simple sense, the expansion of liberty, but a change in power, driven in significant part by the cultural power of the law’s power to name reality…

So yes, if you follow the analogy to divorce, parents will still be able to teach their children their own views about what marriage is. But the law will be constantly repudiating that view in a number of public visible ways. Parents are having a very hard time fighting the progressive views of sexual culture, enshrined at law, in any number of ways. This will make it much harder.

When people say the “law is an educator,” that’s true, but it doesn’t go far enough. In this case, the law is an arbiter of reality: Who is really married? Who is really divorced? Who is having an out-of-wedlock child? Who, for that matter, is committing adultery?

The law’s power to name reality matters.

via The Amazing Power of The Culture (Part 3) – Maggie Gallagher – The Corner on National Review Online.

As a recent legal graduate and future attorney, I care deeply about not only what the law IS… but what the law should be. In fact, this blog is devoted (in theory) to debate and commentary about how the Constitution (hence blog-stitution) should be interpreted–although it often gets bogged down in petty politics.

Many of us (myself included) tend to look at the law and see nothing more than a series of issues on which a position is to be had. We look and see and hundreds of different solutions and changes that need to be made–and often find ourselves in a relentless, uphill battle. Philip Howard, in Today’s Wall Street Journal, challenges this piece-meal approach. Instead of focusing on the specifics, Howard asks us to take a step back and address the fundamentals–the most important of which is the need for what I would call “positive freedoms” (although this may not be the most appropriate term). I am very impressed by Howard’s ability to write… the jury is still out (so to speak) on the merit of his arguments.

Other countries shared, at least in part, our political freedoms, but America had something different — a belief in the power of each individual.

[But] Americans don’t feel free to reach inside themselves and make a difference. The growth of litigation and regulation has injected a paralyzing uncertainty into everyday choices…

The idea of freedom as personal power got pushed aside in recent decades by a new idea of freedom — where the focus is on the rights of whoever might disagree…

The flaw, and the cure, lie in our conception of freedom. We think of freedom as political freedom… [F]reedom should also include the power of personal conviction and the authority to use your common sense…

Modern law pulls the rug out from under all those human powers and substitutes instead a debilitating self-consciousness. Teachers lose their authority… doctors go through the day thinking about how they will defend themselves if a sick person sues…

When advancing the cause of freedom, law today is all proscription and no protection. There are no boundaries, just a moving mudbank comprised of accumulating bureaucracy and whatever claims people unilaterally choose to assert. People wade through law all day long. Any disagreement in the workplace, any accident, any incidental touching of a child, any sick person who gets sicker, any bad grade in school — you name it. Law has poured into daily life.

The solution is not just to start paring back all the law — that would take 10 lifetimes, like trying to prune the jungle. We need to abandon the idea that freedom is a legal maze, where each daily choice is like picking the right answer on a multiple-choice test. We need to set a new goal for law — to define an open area of free choice…

Reviving the can-do spirit that made America great requires a legal overhaul of historic dimension. We must scrape away decades of accumulated legal sediment and replace it with coherent legal goals and authority mechanisms, designed to affirmatively protect individual freedom in daily choices. “A little rebellion now and then is a good thing,” Thomas Jefferson wrote to James Madison, “and as necessary in the political world as storms are in the physical . . . .” The goal is not to change our public goals. The goal is make it possible for free citizens to achieve them.

I suggest you read the piece in its entirety.

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