Much of social life is explained and justified with cliches—those little capsules of folk wisdom that suggest some fact of life is normal or even morally just. It could not be otherwise. If we had to figure out from scratch what each situation in our life means, we would all go crazy. The fully reflected-upon life may be a philosopher’s ideal; for most of us it would be a prescription for madness. The effectiveness of a cliche generally depends on its not being reflected upon: some cliches may survive reflection—some folk wisdom is truly wise—but many cliches crumble as soon as one starts to think about them.
The cliches that proliferate in public life tend to legitimate existing political arrangements. A frequently reiterated cliche in Western democracies, particularly in the United States, is the statement that ours is “the rule of laws and not of men.” Commonly uttered with pride, the statement implies that we have a morally superior arrangement for the ordering of common life. Our sense of moral superiority is expressed not only in talk about domestic affairs, but also in discussions of foreign policy where it is supposed to define a moral mandate to spread the rule of law (by persuasion or more robust means) to benighted regions where it does not as yet prevail.
This “rule of law” cliche, however, does not withstand reflection very well. Even a moment’s thought leads to the recognition that there are some very bad laws, even in democratic countries, and that good men will be moved to disobey these laws if they are unable to change them. There will be the further observation that, as a general rule, laws will be good if they are made by good men. But matters become even more complicated as one continues to reflect.
Law, at least as it has developed in Western civilization, is abstract and impersonal. It seeks to avoid both the irritating complexity of concrete circumstances and the personal prejudices of those charged with the administration of justice. An alternative conception of law, far more common than ours in human cultures, is to trust in men (perhaps not in all men, but in those charged with being judges) and their capacity for moral discernment. In our legal system, typically the first question asked of any potential juror is whether he knows any of the defendants or litigants; a positive answer disqualifies the juror, just as the judge must recuse himself if he knows any of the disputing parties. An episode from British colonial history illustrates this dichotomy. Wherever possible, British colonial authorities continued to utilize indigenous law for the routine administration of justice. In Africa this generally meant that traditional chiefs continued to sit as judges in most civil cases. Usually, of course, they knew the litigants very well. In one African country (if memory serves, it was Nigeria), the British found that it was too expensive to pay every little chief for serving as judge in his tribal village; they chose some chiefs to travel over a wider territory and dispense justice beyond their traditional jurisdiction. One such chief, upon being given this assignment, exclaimed in dismay: “How can I judge these people? I do not know them.”
Formal law, as we know it, is the inevitable result of a decline in trust. One is tempted to say that it could not be otherwise in a complex modern society, but this too is open to doubt. Highly complex modern societies in East Asia function very well with much less formal law than we regard as indispensable. Japan, arguably the most modern society in the world, gets along with a breathtaking scarcity of law courts and lawyers. Overseas Chinese business culture, one of the most effective in the contemporary global economy, abhors contracts and relies on the word of trusted partners. Even in the United States the diamond trade, which involves many millions of dollars, operates on the basis of handshakes. Nonetheless, in Western countries and especially in the United States, it is very difficult to imagine a situation in which an expansion of trust could lead to a shrinkage of law—which is a far cry from the cliche’s implication of moral progress.
We have not only the rule of law but its ongoing expansion. In one area of life after another, this expansion marks a victory of procedure over moral judgment. Formal law expands as legislatures continue to grind out statutes and the courts pronounce more or less imaginative interpretations of these statutes. One may recall Mark Twain’s comment that no man’s property or liberty is safe while the legislature is sitting. The United States is the most litigation—prone society on earth. Lawyers proliferate and become participants in more and more transactions between individuals, despite their well-known unpopularity (witness all those lawyer jokes). But law—like procedures have expanded far beyond the official legal system. Every self-respecting profession must have its so-called code of ethics. Since no one knows any longer what, say, a physician should morally do, his professional association obligingly fills the gap by providing a code of behavior.
“Ethics” here is a procedural substitute for moral judgment: Follow the procedure, and no one will be able to blame you (or—not so incidentally—be encouraged to sue you). “Medical ethics,” “business ethics,” “military ethics,” and, for all I know, the “ethics” of podiatrists and temporary typists all supply procedural manuals that serve in the absence of moral convictions. (This is not a wild flight of fancy. The other day, in my university, I overheard a full-time secretary reproaching a part-time receptionist for “unprofessional conduct.”)
In the course of my own career in the academic world, procedures have multiplied astronomically. The reason for this is, quite simply, that no one is trusted any more to make an intelligent judgment (let alone a moral one) in cases of hiring, promotion, tenure, or even in grading an undergraduate examination. Decisions on promotion and tenure are routinely based on such procedural criteria as number of publications in peer-reviewed journals and scores of approval in student evaluations (and never mind that the reviewing “peers” are typically closed cliques of ideological or methodological sectarians, and that the evaluating students are barely one step beyond illiteracy). A great achievement of the feminist movement has been to introduce contractual thinking into the heart of private life, between lovers and spouses, parents and children.
Some of these excesses may yet be rolled back. Some particularly surreal laws may be revoked. Some lawyers may have to look for more productive employment and some professors may regain a measure of confidence. On the whole, however, we will have to resign ourselves to the rule of law. But let’s not pretend that this is moral progress.
Peter L. Berger is Senior Advisor to the Institute on Religion and Public Life and a member of the Editorial Board of First Things.
