The Social Law
My son and daughter are teenagers. The prospect brings back one recurring memory: my teenage years.
And it's more than a little disconcerting.
I wasn't a bad teenager, but I did things that would simply be unacceptable today. I'm referring primarily to my beer drinking. I was never a heavy drinker, but it wasn't unusual for me to drink, often to excess, by the time I was sixteen.
Thing is, my parents knew it. They didn't mind, just as long as I didn't drive while drinking or ride with a drunk, an imperfectly-kept commandment but one I normally respected because I thought it was awfully cool of them to allow me to drink at all.
Most of my good friends were allowed to drink, too. Not all of them, but quite a few: Andy, Jim, Pat, Phil, Tom. Our parents didn't encourage it, but they didn't severely discourage it, either. When the situation was tossed squarely in their face (like the time I was too hungover to go to work when I was 17 after drinking way too much at a neighbor's graduation party), they punished us for the excess (missing work because of it), not the drinking.
That was the 1980s.
It's twenty years later now, and things have changed.
The laws in my state have gotten tougher: zero-tolerance legislation for underage drinking; stiffer drunk driving penalties, especially for youth; clarification of social-host liability issues (which make an adult liable for any damages or personal injuries caused by an underage drinker who obtains alcohol from the adult). It's scary to trifle with those laws, but they are basically the same laws that were in effect twenty years ago, just heightened.
But added to those laws is another set of laws that drove the heightened laws in the first place, reinforces those laws by putting pressure on elected police officers, prosecutors, and judges to enforce them stringently, and adds to the forcefulness of those laws by increasing popular respect for those laws and increasing the public shame of those who violate them: what I call the "Social Law."
What is the Social Law? They are current notions of acceptable behavior. In one sense, it is merely public opinion: what the public thinks about certain things. But, although public opinion plays a large role in the formulation of the Social Law, the terms are not synonymous. For one, the Social Law is quieter, more difficult to gauge, than public opinion. It cannot be measured by public opinion polls. Indeed, as far as public opinion polls go, it might be the factor they miss and that causes their poll-driven predictions to go wrong.
The Social Law isn't just what people articulate or opine about because it encompasses more beliefs than what people themselves may realize. A myriad of factors go into every decision we make. Some factors are conscious, some semi-conscious, some unconscious. The Social Law is a jumble of emotion and reason, intuition and facts, current conditions and historical lessons, anecdotal evidence and scholarly studies, respect for the sensibilities of others and respect for Enacted Laws, which results in a firm, though perhaps amorphous, set of rules.
I can't honestly say I've seen any articulate the concept of Social Law. Perhaps the closest I've seen (and the man from whom I've borrowed for purposes of this essay) is the father of libertarianism, Albert Jay Nock. In his Memoirs of a Superfluous Man, he briefly mentions four courts: the court of law, of religion, of morals, and of taste and manners. That intriged me, and got me thinking about the concept of Social Law. Then, in a 1929 essay, I saw he wrote in some detail about the difference between statutes and law: We "have a mass of enactments . . . that somehow fail of being actual laws; they are not obeyed or enforced or even heard of, and they apparently have no power to rescue themselves from this extreme desuetude. Whichever way one looks at it, there seems a most important essential difference between a law and a statute." His point in the essay is, mere statutes, without the support of the people, aren't laws at all, as evidenced by the tendency not to enforce them.
It's from this type of thinking that I've concocted my notion of the Social Law. Social Law has force, just like any law. It's an axiom of classical jurisprudence that a law that is not or cannot be enforced, is no law at all. This is another way in which it differs from mere public opinion. Public opinion, by itself, cannot be enforced. The Social Law can be and is, often through Enacted Laws that reflect the Social Law, but also through other means as well: ostracism, social opprobrium, forfeited business opportunities.
How do Social Laws get enacted? It's hard to say (and I address the issue in more detail below). To my knowledge, Nock (probably wisely) never articulated a concrete set of rules for the Social Law, like I am (perhaps foolishly) trying to do here. There are a variety of factors that go into a Social Law and it impossible to identify all of them. Consider, for instance, the underage drinking problem.
In the 1960s, there was a sudden loosening of moral norms, with the result that the Social Laws tended to accept looser forms of behavior: sex and drugs and rock-n-roll. In the early 1970s, many states changed their Enacted Laws to lower the minimum age for drinking to eighteen, pushed in large part by a set of Social Laws that were more acceptable of looser behavior and also informed by a sense of the ludicrousness of sending eighteen-year-olds to Vietnam but telling them they're too young to buy a six-pack.
The trend lasted only a few years, though. Lawmakers were soon confronted with evidence (much of it hotly disputed) that raising the drinking age to twenty-one would prevent an appreciable number of traffic accidents and deaths. By the late 1970s, states were beginning to raise the drinking to twenty-one again. In 1984, Reagan signed into law a measure that would cut highway funds for states who refused to raise the drinking age, thus forcing states to do so. These Enacted Laws tended to push a less tolerant view of youth drinking.
At the same time, groups like MADD started (1980), mass marketing statistical, but far more anecdotal, evidence that underage drinking was a serious safety problem. Colleges and universities became increasingly concerned about the effects of drinking on safety and academic achievement. Coaches became concerned about alcohol's effect on performance. Parents started telling stories of underage drinking leading to depression in their kids and anti-social behavior (the exact things, ironically, that alcohol has historically battled against, it being the source of much merriment and sociability over the ages). The National Institute of Alcohol Abuse and Alcoholism presented a study in 1978 that there were 3.3 million alcoholics in the United States, ages fourteen to nineteen.
This tendency picked up steam into the 1990s, when zero-tolerance legislation became popular and dram shop laws (which prohibit sales to underage or inebriated individuals) were more stringently enforced. Kids killed by drunken peers; substance-abusing kids committing suicide or dropping out of school or getting violent. Such things heightened the Social Laws against youth drinking, at the same time that the Enacted Laws are heightened.
It was no one factor. Emotion is combined with reason. There's hard evidence to support these Social Laws against youth drinking. The evidence is hardly conclusive, but it's combined with an intuition that underage drinking is a troubling thing.
As evidenced by the campaign against underage drinking, the most important thing to recognize about Social Law is that it is neither more nor less important than Enacted Law, just as the engine is neither more nor less important than the tires. An Enacted Law without the support of Social Law, however, will eventually get repealed. To go back to Nock's 1929 essay, Whenever "a statute has been set up in opposition to [man's private judgment], the statute has always gone by the board."
This isn't surprising, because an Enacted Law, in order to have legitimacy, needs the Social Law in order to get enacted in the first place. All legislation is enacted to fix a problem or bring about a desired result, and the problem or desired result is almost always first discerned by pockets within the Social Law legislature (the people). If enough legislators of the Social Law recognize the problem, the legislators of Enacted Laws will at some point make the Social Law an Enacted Law.
It's not a perfect formula, to say the least. How many Social Law legislators need to acknowledge the problem or desired result? How is support among the Social Law legislators measured? How do disproportionately-recognized Social Law legislators (lobby groups) affect the need for widespread support?
I don't have answers to these questions. It's the arena of political scientists and sociologists.
I'm mostly concerned here with the origin and enactment of the Social Law. By understanding a thing's origin, we better understand its role.
Every student is drilled extensively on the mechanics of producing Enacted Laws, from the popular "I'm Just a Bill" cartoon on School House Rock to high school government classes to college core courses on political science. Little, if any attention, is given to the origin of Social Law, even though every campaign strategist and lobbyist (except perhaps the most ruthless) knows the battle must be won there first or at least simultaneously. A moment's reflection shows that lobbyists hit both spheres simultaneously, as MADD has done through its lobbying of legislators and its aggressive advertising campaign.
I suspect the neglect of the Social Law can be found in Thomas Aquinas's treatment of law in the Summa Theologica, where he explicitly ties together custom and human law. Quoting Aristotle, he says "laws derive very great force from custom." He also says that human laws must be framed with existing customs in mind for even if a law would push people to virtue or away from vice, if they are not ready for such a law, it will result in greater harm.
I mentioned previously that a jumble of factors go into the Social Laws. I didn't mention one of the bedrock factors: custom. Custom is a set of norms, beliefs, and behavior that often aren't articulated, just accepted. It is one of the most important factors comprising the Social Law. It is the "front end" factor, the one that is intuited and passed on throughout the generations, the one that informs us initially, before the propaganda and lobbyists and statistical studies start working on us.
Custom, when it constitutes the primary factor in a Social Law, becomes binding custom, which is the way I believe that Aquinas uses the term "custom" when he says "Custom has the force of a law, abolishes law, and is the interpreter of law." When custom attains that level of power, I'd say the two terms (Social Law and binding custom) are synonymous.
Custom, of course, is widely disparaged in our culture of raging individualism, and the idea of binding custom is practically an oxymoron. Because custom is a major factor in the development of Social Law (and can be, in certain forms, the exclusive or overwhelming factor), I think our highly-sensitive sense of individualism reduces respect for, and interest in, Social Laws.
But I suspect there's another, deeper, reason for our disinterest in Social Laws: They stumble awfully close to Natural Law, a form of jurisprudence that has been under attack since the sixteenth century and has been pushed to the jurisprudential background, invoked only rarely and when absolutely necessary to deal with a crux moral problem that can't be handled by any other school of jurisprudence (like its use at Nuremberg to convict Nazis of atrocities, even though the atrocities were legal in Germany at the time).
I mentioned earlier that Social Law is the effect of a jumble of causes. One of the primordial causes is Natural Law: the law instilled by God in the heart, which is developed and tacitly passed down throughout the generations, adapting its unchanging norms to changing circumstances. Natural Law is often reflected in custom, though not always (as Cicero points out in Laws, custom can often be wrongheaded and, indeed, downright evil).
In the underage drinking legal enactments, all the lobbying and advertising and statistical evidence boiled down to a handful of fundamental truths that don't need to be explained to anyone: the preciousness of life, the fragility yet foolhardiness of youth, the mother's tender affection for her child. Those are natural things, things everyone understands and acknowledges.
These natural things needed to be examined in light of the effects of alcohol and 65 mph speed zones and societal pressures that arguably make youths inclined to abuse alcohol than enjoy it. The natural law, after all, must be interpreted and applied to changing societal conditions, which is where the role of testimony, evidence, statistics, and other factors play in to form the Social Law, which, in my example, raised the drinking age to 21 and steadily increased societal pressures away from winking at underage drinking.
I'm not, incidentally, saying that the drinking age should be 21 (I'm inclined to think 19 is the proper age). I'm merely pointing out that all the hoopla and propaganda surrounding underage drinking is merely window covering for fundamental truths that are at the core of the Social Law. If these fundamental truths are acknowledged and applied, the positioning and evolution of Social Law becomes clearer. Application of the Social Law is still tricky, but the fundamental reference points are always there to consult.
So why am I writing all this? Because I don't think that the existence of a Social Law can be denied. I have spoken with many others who have noticed the same phenomenon at work.
And Social Law gets us removed one step from the positivistic notion of law, the one that says a law is legitimate if it's lawfully enacted, the one that focuses solely on procedural issues, rather than substantive questions. It also veers us away from a raging individualism that is often too aggressive and too dense to recognize the importance of custom.
Social Law is not human law and it's not natural law; it's not merely the whimsical public opinion of the people as influenced by current sentiment. It's the middle ground between those places. It's a ground that that can be good–when rooted in custom and common sense–or it's a ground that can be bad–when running half-cocked on a media frenzy and misinformation. But it's still a middle point. To regain a healthy notion and respect for the Social Law would, I believe, help us better to appreciate the human and natural and even divine processes and truths that go before the final form, human laws.
Put another way, the clearer the Social Law and the better we understand it, the better our Enacted Laws will be.
