He is the enforcer of the law upon himself

From Laws and Manners by the Right Honorable Lord Moulton, The Atlantic Monthly, July 1924.

A prescient piece. Many of the episodes of anger and fitfulness in recent years has, I think, been grounded in the narcissism of small differences. The law reaches only so far and then cedes to custom and manners. The law depends on a general shared confidence in its appropriateness and its competence. When the law is seen to be bad, or unenforced, or enforced in a selective fashion, the whole exercise of governance is undermined.

And the bar is pretty low. For our most serious crime, murder, the clearance and conviction rates are shockingly low. Only 64% or murderers are identified in the first place. Down from 90% fifty years ago. And of those 64% where the murderer is identified, only 66% are convicted. So only 42% of all murders lead to a conviction. The clearance rates plunge from there (rape, assault, theft, etc.)

While we have a hard time identifying perpetrators and an even harder time convicting them, very fortunately, crime has been dropping over the past three decades, perhaps counteracting the concern about the law's effectiveness.

The point of Moulton's essay is that there is a real limit for government to enforce the law. And yet the law itself has a limited purview. It has not historically extended to things such as good manners.

My concern about social justice postmodernists is that they represent a very real threat to the integrity and viability of government. Certainly their first order threat is to our natural and constitutional rights such as free speech, freedom of assembly, and freedom of religion. Across the western world, governments are conceding to social justice advocates insisting that people should be convicted for their speech and for their religious beliefs.

It is very dangerous when government is seen to not be competent in enforcing the laws that everyone agrees to. It is worse when government is seen to be selectively enforcing laws. And it is worst when government is seen to be trying to enforce laws that are unconstitutional and undermining of human rights (speech).

By trying to force the law to reach into the field of manners, social justice postmodernists have been extremely effective in undermining the freedom of western civilization.

This gap between formal law and shared manners is the topic of Moulton's essay.

In order to explain this extraordinary title I must ask you to follow me in examining the three great domains of Human Action. First comes the domain of Positive Law, where our actions are prescribed by laws binding upon us which must be obeyed. Next comes the domain of Free Choice, which includes all those actions as to which we claim and enjoy complete freedom. But between these two there is a third large and important domain in which there rules neither Positive Law nor Absolute Freedom. In that domain there is no law which inexorably determines our course of action, and yet we feel that we are not free to choose as we would. The degree of this sense of a lack of complete freedom in this domain varies in every case. It grades from a consciousness of a Duty nearly as strong as Positive Law, to a feeling that the matter is all but a question of personal choice. Some might wish to parcel out this domain into separate countries, calling one, for instance, the domain of Duty, another the domain of Public Spirit, another the domain of Good Form; but I prefer to look at it as all one domain, for it has one and the same characteristic throughout — it is the domain of Obedience to the Unenforceable. The obedience is the obedience of a man to that which he cannot be forced to obey. He is the enforcer of the law upon himself.

[snip]

The infinite variety of circumstances surrounding the individual and rightly influencing his action make it impossible to subject him in all things to rules rigidly prescribed and duly enforced. Thus there was wisely left the intermediate domain which, so far as Positive Law is concerned, is a land of freedom of action, but in which the individual should feel that he was not wholly free. This country which lies between Law and Free Choice I always think of as the domain of Manners. To me, Manners in this broad sense signifies the doing that which you should do although you are not obliged to do it. I do not wish to call it Duty, for that is too narrow to describe it, nor would I call it Morals for the same reason. It might include both, but it extends beyond them. It covers all cases of right doing where there is no one to make you do it but yourself.

All these three domains are essential to the properly organized life of the individual, and one must be on one’s guard against thinking that any of them can safely be encroached upon. That Law must exist needs no argument. But, on the other hand, the domain of Free Choice should be dear to all. This is where spontaneity, originality, and energy are born. The great movements which make the history of a country start there. It covers a precious land where the actions of men are not only such as they choose, but have a right to claim freedom even from criticism. Men must keep safely guarded this right to follow the bent of their nature in proper cases and act as they would without anyone having the right to utter a word of dictation or command. This country forms the other frontier of the domain of Manners and delimits it on the side farthest away from that of Positive Law.

[snip]

In the changes that are taking place in the world around us, one of those which is fraught with grave peril is the discredit into which this idea of the middle land is falling.

[snip]

But in form the power of a Government has no restrictions. It has the power to do everything, and too often it forgets that this limitless power does not leave the scope of its legislation a matter of absolute choice on its part, but a choice fettered by a duty to act according to the trust reposed in it, and to abstain from legislating in matters where legislation is not truly within its province. And what is true as to the scope of legislation is also true to a great extent as to the nature of that legislation. But there is a widespread tendency to regard the fact that they can do a thing as meaning that they may do it. There can be no more fatal error than this. Between ‘can do’ and ‘may do’ ought to exist the whole realm which recognizes the sway of duty, fairness, sympathy, taste, and all the other things that make life beautiful and society possible. It is this confusion between ‘can do’ and ‘may do’ which makes me fear at times lest in the future the worst tyranny will be found in democracies.

[snip]

Now I can tell you why I chose the title ‘Law and Manners.’ It must be evident to you that Manners must include all things which a man should impose upon himself, from duty to good taste. I have borne in mind the great motto of William of Wykeham — Manners makyth Man. It is in this sense — loyalty to the rule of Obedience to the Unenforceable, throughout the whole realm of personal action — that we should use the word ‘Manners’ if we would truly say that ‘Manners makyth Man.’

With internet mobs and social media vigilantes, all seeking extrajudicial social justice, I fear postmodernists are advancing authoritarianism and totalitarianism by attempting to legislate good manners and thereby permanently unermining the authority of law.