Clever title, eh? Gets the brain churning, doesn’t it? “The unreasonable who?” “The unreasonable what?” “Porretto’s playing games again, isn’t he?”
(“Again,” you say? When did I stop?)
Well, it’s all in a day’s work here at the Fortress of Crankitude, Long Island’s premier shrine to self-indulgent snark over too many glasses of wine. I maintain this site and write these pieces to stimulate thought. One of the most effective stimulants to thought is the antinomy: two propositions both of which appear unquestionably correct, yet which fundamentally contradict one another. To resolve such an opposition can cost a lot of skull sweat.
Among the triumphs of the American Revolution was the promotion of human reason as the proper tool with which to address government and law. Of course, that was the late Eighteenth Century. If reason ever had a heyday, it was then. Yet a fair number of persons, many of them deemed highly intelligent and erudite, disliked the idea that reason should be the arbiter of what is legitimate in matters of law and government. They argued that tradition, and the structures it had bequeathed us, deserve respect and deference no matter what a reasoned analysis might say about them.
And even when they were wrong, they were right.
Tradition has been called “the democracy of the dead.” For us of Twenty-First Century America, where the votes of the dead decide a fair number of elections, that’s a characterization that causes heads to shake. “Why,” many of our contemporaries will say, “should this fetish of people who lived long ago hold sway over us? We know so much better today!”
There are a number of rejoinders to that sally, but the one I like best is “Do you really?”
Patience, Gentle Reader. This is the first morning in awhile that I’ve risen from my coffin feeling approximately human. Give me a few hundred words to “rev up.” And another pot of coffee.
There are elements of American law whose legitimacy rests on tradition: “This is the way it’s always been.” A reasoned analysis of the consequences of those laws, measured over the decades, suggests that they have not served society well. The uncritical analyst might say of such a law “Well, then repeal it!” And he’d have an argument. After all, that’s what a reasoned analysis is: an argument.
But he might be wrong no matter how rigorous his logic.
Perhaps “wrong” is too strong a word. Perhaps our use of it is part of our problem, the part that creates a seeming antinomy. Perhaps a test case would help us to decide. Let’s consider something that’s been a blight on society, especially our urban areas, for a long time: prostitution.
Laws against prostitution have done nothing to dampen it. The prostitute’s trade is practiced more widely today than ever before. (They call themselves “sex workers” now, but that’s beside the point.) The illegality of the trade has corrupted police departments and ended the careers of prominent politicians. An utterly bloodless approach to the subject would render an uncompromising verdict: “The law does more damage than good. Repeal it.”
But an all-or-nothing, pushbutton repeal would have some very unpleasant near-term consequences. Many people would suffer. Not all of them would be prostitutes. The traditionalist would point to those consequences and say “What did I tell you? There’s a reason our forebears outlawed this practice!”
He’d be wrong in this respect, at least: Our forebears outlawed prostitution largely out of religious conviction. But the consequences he condemned would still be there, making the apostles of pure reason wonder if they hadn’t missed something in their analysis.
The two great Thomases of reason – Aquinas and Jefferson – both called for stability in the law. Laws, they argued, must not change swiftly. Stability allows the individual to plan with a degree of confidence. If they must change, let it be by degrees, over a period that would permit the citizen to adjust without inducing convulsions in the greater society.
A swordstroke repeal of the law would destabilize the lives and fortunes of a significant number of people. If the change could be phased in – and I’ll admit that as regards some laws, that is not possible – the negative consequences could be dampened. Some might be eliminated entirely.
The traditionalist’s argument, while it might not address the analysis of the law in question, has more substance than the rational analyst might care to concede.
Many in the pro-freedom Right have called for Alexandrian solutions to social problems brought about by bad laws. Their motives are laudable. No one can look upon the damage done to our social order by some of our longstanding legal prohibitions and cheerfully say, “It has to be this way.” Even so, there’s always an argument for trying to minimize the damage that would follow from a pushbutton change.
“This is the way it’s always been” should cause us to think about the negative consequences of too swift and dramatic a change in the law. Perhaps they who erected a bad law didn’t think it through all the way, but as the law acquired longevity, it caused individuals to position themselves and arrange their affairs according to the shadow it casts. Should the light blaze in all at once, what consequences would there be then?
“There are no solutions, only trade-offs.” – Thomas Sowell