Ain't Nobody's Business If You Do

PART I: THE BASIC PREMISE

Separation of Society and State

All that is good
is not embodied in the law;
and all that is evil
is not proscribed by the law.
A well-disciplined society
needs few laws;
but it needs strong mores.

WILLIAM F. BUCKLEY, JR.

IN DEFENDING THE LAWS against consensual activities, some ask, "Shouldn't the laws of the state describe - or at least reflect - what is acceptable and not acceptable to a broad segment of society?"

Absolutely not.

The government - which makes and administers the laws - is there to keep physical violence from being inflicted on its citizens, whether that violence comes from foreign governments, groups of citizens, or individuals. A government that provides a level playing field for commerce and keeps everyone's person and property relatively safe from the physical harm of others is doing a good job. As Thomas Paine wrote in his 1776 pamphlet, Common Sense,

Society in every state is a blessing, but Government, even in its best state, is but a necessary evil; in its worst state, an intolerable one.

Society, on the other hand, determines acceptable and unacceptable social behavior. Many of society's rules are so thoroughly accepted we don't even think about them. That we speak primarily English in the United States is purely a matter of custom. That we eat certain animals and don't eat others (horse is very popular in France), sleep in a bed (the Japanese do not understand why we need a bedroom), bury our dead (cremation is the tradition in India), and so much more, are all purely matters of social custom. Although in this country one can speak Croatian, eat horse, sleep on a futon, and be cremated, the vast majority of people choose not to.

It is hard to fight an enemy
who has outposts
in your head.

SALLY KEMPTON

The reason? Our conditioning. "Society attacks early," B. F. Skinner pointed out, "when the individual is helpless." We do some things, don't do other things, and behave in certain ways because that's how we were trained. Much of the time we do what we do because (a) it's the only thing we know (are you fluent in any language other than English?), (b) it's what we're comfortable with (would you feel comfortable eating a horseburger?), or (c) we have to get along in society.

That last one - getting along in society - is what keeps us in place when cultural conditioning fails. Even as rebellious a rascal as George Bernard Shaw acknowledged the need for society - and its power:

Nobody can live in society without conventions. The reason why sensible people are as conventional as they can bear to be is that conventionality saves so much time and thought and trouble and social friction of one sort or another that it leaves them much more leisure time for freedom than unconventionality does.

The more we pull away from society's norms, the more society pulls away from us. We can, quite legally, be total renegades. The cost (or punishment, if you will) is that we become social outcasts. If we wore aluminum-foil clothing, never washed, communicated only with grunts and squeaks, walked backwards, and lived off live grasshoppers, we might occasionally find ourselves as a guest on daytime talk shows, but we would never be a guest at a dinner party, be rented an apartment, or offered much work (except, perhaps, for organic pest control during grasshopper infestations). If our behavior is sufficiently eccentric, society punishes without any help from the law.

Never speak disrespectfully
of Society, Algernon.
Only people who can't get into it
do that.

OSCAR WILDEThe Importance of Being Earnest

Prior to complete isolation, however, any number of punitive societal responses keep us in line - sometimes literally. It is not, for example, illegal to cut in front of someone at an automated teller machine. And yet, very few people take cuts. Some wait their turn because they believe in fair play; others because they're afraid of disapproval. (In Los Angeles, we wait because we're afraid someone else in line might be carrying a gun.) The reason there are no laws against taking cuts is that most people understand the fairness of lines and agree to cooperate. Most of those who don't believe in fairness do believe in avoiding barrages of negative comments. The very small minority who do take cuts do not cause enough of a problem to warrant legal regulation.

Most of us want to fit into society. A cartoon appearing in The Realist many years ago showed a line of sack-clothed bearded men - one looking just like another - holding identical signs reading, "We protest the rising tide of conformity." Even the rebels follow certain counter-social mores in order to be accepted in the counterculture society. To get (or keep) a job, living arrangement, or lover, we will conform to any number of standards - without a police officer or legislature in sight.

Society has the means to change itself without anyone changing a single governmental law. Thirty years ago, for example, an earring on a man would mean that he was (a) a transvestite, (b) a pirate, or (c) Mr. Clean. Today, earrings are de rigueur as proof of machismo among certain groups of men. No one had to write a law, enforce a law, or repeal a law regarding earrings on men. As Lewis Thomas explained,

We pass the word around; we ponder how the case is put by different people; we read the poetry; we meditate over the literature; we play the music; we change our minds; we reach an understanding. Society evolves this way, not by shouting each other down, but by the unique capacity of unique, individual human beings to comprehend each other.

Justice is: JUST US

RICHARD PRYOR

Is Justice JUST ICE?

JONI MITCHELL

Imagine if every rule we have in society required a law, law enforcement, court time, and jail space. Several laws, for example, have been proposed to make English the national language of the United States. These laws have been dismissed, for the most part, because they were unnecessary. Not only were they unnecessary; they were unenforceable. Although the proposals sparked interesting debates (one congressman said, "Jesus spoke English, and that's good enough for me"), people realized such laws were futile. Why don't people come to the same conclusion about consensual crimes?

Not only is the law's help inappropriate; society doesn't need the law's help - society does just fine on its own. In fact, society has far more power over the individual than law enforcement does. "Order is not pressure which is imposed on society from without," Jos Ortega y Gasset wrote in 1927, "but an equilibrium which is set up from within."

Society, in fact, does not mind that some people flout its regulations: some people must be outside society in order for those inside society to know they're inside. If everybody were "in," then nobody would be "in." The very fact that some people are "out" makes being "in" worthwhile. Only certain religions live under the misguided notion that everyone must or should be "good."

From the government's point of view, which drug one uses recreationally should make no more difference than, say, whether or not one wears an earring. Both are primarily a matter of fad and fashion that the government has no business becoming involved in. The government has far more important issues to consider than the prevailing currents on earrings or drug choices.

He who is unable to live in society,
or who has no need because
he is sufficient for himself,
must be either
a beast or a god.

ARISTOTLE

This means not just a separation of church and state, but a separation of society and state. (Whether there should be a separation between church and society is for church and society to work out between themselves. This is a book about government intervention in private lives.) The government has no more business being the enforcer of social policy than it has being the enforcer of religious belief.

Both the church and society have lasted longer than any government. The people need the government to keep forced intrusions of both religion and society out of their lives.

As usual, Thomas Jefferson said it best. At the age of seventy-seven, he wrote,

I know no safe depository of the ultimate powers of the society but the people themselves; and if we think them not enlightened enough to exercise their control with a wholesome discretion, the remedy is not to take it from them, but to inform their discretion.