I would rather live in an ethical society than a law-abiding society.
I think we’ve been missing the point. We talk about enforcing the rule of law, reestablishing the rule of law. Which rule of law are we talking about? I think we mean the rule of written law and what I want to talk about today is the rule of unwritten law.
I believe that what matters more to the health of a society than the rule of written law is the rule of unwritten law. It is the cultural norms and beliefs that help people interact with each other, leading to more cohesion, more business, and more wealth.
Written laws are merely a subset of the rules that we’re supposed to follow. It would be nearly impossible to codify all the rules we have for engaging with each other to the specificity where they would be enforceable. While in the US, we hold up the Constitution as a document of near god-like status, it still only represents a tiny fraction of how citizens in a functioning democracy should interact with each other.
Other than written laws, I believe we have two main types of unwritten laws, or what I would define as ethics: those imposed on us by others and those that emerge from us, whether from our internal morality or from a spiritual sense. Regarding the external unwritten laws, I believe those are our cultural norms. Sharing is caring. Say please. Say thank you. A lot of the things we teach our kids, frankly. However, it’s also much more. If in Michigan and referring to a sliding glass door, you call it a doorwall; in California and most other places, you call it a sliding glass door. From that somewhat mundane rule to deeper rules, like don’t cheat on your wife, don’t lie to your father, don’t kick someone when he’s down, we develop and share external unwritten laws.
Internal unwritten laws are more akin to following what your gut says, listening to your intuition, hearing the spirit move through you. With these rules, emotions seem to guide our behaviors. If I feel guilty, say sorry. If I feel grateful, say thank you. If I feel tired, sleep.
In the United States, I believe we have drifted further away from unwritten laws and more towards written laws and I believe that this represents the crumbling of our democracy. I believe a democracy is only as strong as its populace’s ability to follow unwritten laws, especially those emanating from themselves.
When I hear Trump say that he follows the law and wants to strengthen the rule of law, I think how he follows the written law and wants to strengthen the written law. He finds the tax loopholes and exploits them, therefore not breaking the written law. He wants to impose strict penalties on U.S. companies that transfer jobs overseas. However, I don’t believe that he wants to follow the unwritten laws or wants to strengthen the unwritten laws. In not paying taxes, what unwritten laws is he breaking? In imposing penalties for companies going overseas, what unwritten laws is he writing? What if the executive branch of the government were not just designed to enforce the written laws but the unwritten ones as well?
I believe the President of the United States should enforce the unwritten laws of civility as well as the written ones. I believe he should listen to his internal voice and follow his heart. When MLK Jr talked about opposing laws that he found to be unjust, I believe he was talking about opposing written laws that he found to be unjust based on following his internal unwritten laws.
As the US creates more written laws, I see that our unwritten laws are losing their strength. I would argue that many conservatives, especially libertarians, wish that there were a smaller government and hence, fewer written laws. I believe that for the majority of them, this is because they believe in the rule of unwritten laws, whether those morals come from their family, region, profession, religion, or elsewhere.
I worry about the US because I see it leaning more towards authoritarianism. I believe that the foundation of an authoritarian government is the degradation of unwritten laws with the increasing imposition of written laws, which become more and more complex, so that those in power have the money and knowledge to understand how to skirt the laws while the average citizen gets caught violating a law he didn’t even know existed.
Trump did not start this and nor is he fully responsible for it. Just think of Terms of Service for example. How many websites, apps, car rental companies, doctor’s offices, and others have lengthy and convoluted contracts that we need to sign before we engage with their services? How many of us have read them and understand everything in there? Or a more relevant example, how many of us fully understand the written tax code? When we submit our taxes, we sign our names to say that, at the risk of perjury, we have tried our best to follow the code. Why do we need so many written rules telling us how to behave?
I believe that the first step in changing this is awareness. Recognition that our society has been drifting towards the rule of written law more and more and that we are pulling further and further apart. I believe the foundation of democracy is in the strength and cohesion of its citizenry. We don’t need written laws telling us how to be nice to each other. We don’t need to resolve all of our disputes through a formalized court. We can listen to our hearts and treat others as we wish to be treated. We can apologize. We can forgive. We can bring our country back together, one unprescribed action at a time.