Custom is the Conservative ethos for how to live while law intrudes on that in a revolutonary even if law becomes hedges to protect custom and avoid chaages in custom.
If Conservatives are thought of as a point of view which looks back to a better time, then how far back will they go to find a Utopia back then? It is often said that they want to return to the Fifties when women and Blacks knew their place and the United States was the King of the Walk and prosperity was busting out all over. But it is hard to be nostalgic, which means a degree of remembrance of a real event, for a time now seventy years old as the state of stability when in fact it was a time ever changing, rushing through McCarthyism and the deepening Cold War and Existential angst. And Conservatives now acknowledge by and large that the end of Jim Crow was a good thing.
Maybe the starting point, the right timr for the right way to live, was just before World War I, when people wore boaters and women wore long skirts and there was no income tax. Or an even more remote point generally cited which was before the French Revolution which unsettled the Ancien Regime and before the Industrial Revolution despite the fact that there was no democracy and people died early. Yes, the Eighteenth Century seems like a civilized place, what with Samuel Johnson and George III as sovereign.
Maybe it was a state of mind rather than a time before orring a political catastrophe which made a time ideal. We were all naive and hopeful before the Black Plague or 9/11. Idyllic was the opening of “Oklahoma” on Broadway in 1943 singing of a “surrey with a fringe on top” while in the midst of the worst war in human history. But pastorals never happened, even Virgil’s “Eclogues”, written by an urban cosmopolitan to other urban cosmopolitans, and we are trying to arrive at some real time.
Take another tack. Treat the agef the golden past as when a particular form of social control dominated society because that colors everything that happens in a society and yet is also clearly visible and understood. The most obvious candidate from a conservative perspective on what offers a society both natural and permanent is the appeal to violence that people are threatened if they don’t cooperate and so comply and society and its members are better off for that arrangement. That is a vulgar understanding of Hobbes: peo[le exchange obedience to those who will enforce their laws in exchange for social peace. In fact, JHobbes projects that social order is created by the threat of social violence so as to accomplish something much more important. Social peace, the suppression of and through violence allows unleashing the art and practice of contract and that allows a society to prosper with entrepreneurship, people proposing, making, amending and diso;ving contracts so as to take advantage of new opportunities or inventions for how to provide goods and services. The police power is well in the background if the society is once stabilized. Moreover, the Hobbesian view is not authoritarian because what he posits is an exchange, a social contract between the people and their sovereign rather than a one sided declaration and so a kind of agreement however much it is implicit rather than historical. Hobbes does not approve of democracy but Locke extends Hobbes’ ideas so that a society is flexible enough to allow the making and breaking and reconfiguration of not only individual contracts under the umbrella of the state but also of the state itself, violence replaced by argument and consensus about how to order the state, and that remains the current ambiance of society however much threatened bt Fascism and Communism and authoritarianism the latter simply meaning that the stage can interfere with contract whenever it cares to, both in individual contacts and in whatever social contract or constitution that has been created.
The vulgar reading of Hobbes might seem attractive to conservatives. De Maistre thought that the hangman was the guarantee of social order and apocalyptic fantasies imagine exotic Mad Max characters as dominating social life even if the later entrants to the series imagine a reborn organized neolithic civilization emerging out of violent anarchy. Some conservatives think society has to be harsh in order for people as a whole to thrive. But, in fact, conservatives do not think of violence as the ordinary way of providing social peace. Rather, the resort to violence is only a necessary outrage where it is inflicted only by excessive intrusions into social order and so crime has to be deterred and civil unrest controlled only because there is no other alternative. Conservatives are outraged against needing police violence rather than prideful of it because other forms of social controls have failed and so vio;ence is an appeal to a last resort, people outraged that it is necessary. What is a different form of control that conservatives prefer as the “natural” order of things?
Custom is the best candidate as the form of control that seems the most universal and most natural way of ordering society and is particularly favored by conservatives because it is the most long lasting, having been so back through the fog of time to whenever people could be considered to have societies and so a comfortable and reliable way for people to rest. A custom is a usual and obvious and what seems the easiest way to imagine how to conduct a social procedure and so is different from, let us say, scientific method, which has to be learned with difficulty and can result in views contrary to common sense and also contrary to religious faith or charisma which require rigorous attention so that it can be endorsed as other than hogwash or a natural tendency to be obedient. Examples of customs are courtship rituals, however agonizing it may be to learn about dating as opposed to just hooking up with a neighbor, engaging in a contract to buy a car or a bunch of bananas, knowing tata car dealer will be puzzled more than angry if offered two bananas for a Chevy, or making small talk when socializing, even the naive Eliza Doolittle figuring out how to make small talk with the swells.
Custom is to be distinguished from the idea of norm introduced by Emile Durkheim in what he believed to be a profound understanding of custom. A norm for its part is a usual activity that is coercive in that very fact in that people are offended and angry by violations of the usual, while customs are self enforcing because they are so obviously the right thing to do and other enforcement is required if people do not adhere to custom. They can be ostracized or chastised or shamed, but the response is not automatic,or self enforcing. Also, people can invent new customs, become innovators, without, as Robert Merton thought, becoming deviant. We applaud Thomas Edison and do not think all scientists or political activists are mad.
The point about custom that makes it so amenable to Conservatism is that customs seem familiar and therefore affirming that te social order is real as comforting and affirming that social life is an encompassing environment while the cold distances of the night sky are foreign and foreboding unless they are filled by the imagination with heavenly peoples. And the all but endless universe is conscribed into the world of the now or maybe at a stretch into a few adjacent eras, maybe back to Rome but not to cavemen and only with difficulty to ethnicities with other than current practices, and forward not so far that courtship rituals have not differed in Star Trek or Star Wars. So customs limit as well as fill the social universe, making ut the present time however much it may change next year with a new fad in music or a new nation to regard as an enemy. Custom therefore makes its time a permanent time til it changes.
Conservatives like customs because things don’t seem to change. Wars are customs and people show up at their draftboards except in extremis even though they might get killed. People hang out at bars to heist a few and women don’t go into men’s barber shops until there is a change to unisex barbers. Society seems seamless except that Liberals insist on innovations that change things supposedly for the better. CVonservatives werre leary of civil rights protests because that would alter customs having tyo do with public accommodations and the traditional rights or customs of private association even if theythought lynching peop;le was bad. Whatever is, is good, and innovations are bad. Technology may be an exception so that most Conservatives do not eschew cell phones but some do and in the past it was the conservatives that decried Galileo and evolution.
Conservatives have also not kept up with modern customs such as birth control and abortion even though those are technological because of another social control, which is ideology, which is the set of interlocking propositions about how social life works and offers how a society or organization is or could be organized. Ideology does not only intrude on society so as to make it better as is the case with Jeffersonian versions of the Enlightenment but can also brake change. Catholic religious ideology hinders adapting practices as when it insists that matrimony is unbreakable only excepting the expedient or ideological exception that a marriage was never truly made and so could be annulled. That is expensive and cumbersome but a workable way around an unalterable edict, just as is relatively harmless except to credibility in believing in the Trinity which can be understood, if at all, by theologians. Church members can slough it off by saying what the trinity means is to be left to experts even if the belief of it is asserted on a daily basis. More troublesome are Conservative doctrines concerning birth control and abortion, where the ideology rests on a distinction between what is natural and unnatural where the word natural includes whatever people devise, in that people devise sticks and cyclotrons, and a decision about when the foetus is a human being entitled to life when the biological process of giving offspring does not have a clear starting point, such as when the zygote implants in the womb or when the head emerges from the birth canal, all these steps arbitrary but settled on as a matter of life and death and with significant criminal and moral penalties attending.
Another ideology embedded and constructive of an institution is the legal system as that has been drawn up in constitutional and statute law. A recent six banc appeals court had to decide whether a $500 million fine levied on President Trump’s business infraction was excessive..Two judges said the fine was just fine. Two upheld the verdict only so as to allow a further appeal to the Supreme Court. The last said the fine was indeed excessive and should be overturned. The courts get tangled up and unable to act with regard to matters that should be clear and with ample precedent: what is excessive. This fumbling around surrounds many other issues such as states rights and civil liberties, there is always the need to redefine terms in a new way so as to match law with new customs or new impulses. In fact, the ideology says that excessive means to offend the conscience, which means the current custom and so begs the question which also happens with cruel and unusual punishments which also means no longer allowed, such as capital punishment, when fashions or customs change. The words have no weight of their own. A hundred years from now, long term incarceration may become regarded as cruel and unusual.
Moreover, the discussion of legal ideology is often metaphysical in the bad sense of being a matter of definition that is asserted rather than argued as when Justice Ginsburg found that men and women were by definition people and so treated equally even though the word men was treated as exclusive to the point that women were given special privileges, such as being spared execution because of their bellies or prohibited from dangerous work because they might become pregnant. Ideological distinctions rather than clarifying are just arbitrary however worthy as progressive or legitimating new customs.
Political ideology can intrude and disrupt custom and prior ideology even if it is not as byzantine as Catholic doctrine. An Old Bolshevik agrees to cooperate in a show trial of his alleged crimes because he is convinced or decides to say he was convinced that he was “objectively” guilty of being anti-Stalinist even though he was not :subjectively “ guilty”. The New Deal enacted a host of alphabet agencies such as the FDIC, the SEC, the NLRB and the TVA, to mention some, to counter the idea that government cannot intrude with doctrines having to do with laissez-faire, which meant that private enterprise could not be impeded. George W. H. Bush got in trouble for arguing that Reagen;s economic policies were “voodoo economics” until he recanted, saying that was then and this, meaning that he had become the vice-presidential nominee, was now. Trump dismantles the federal bureaucracy in the belief that the Deep State is nefarious. So ideologies arise and topple.
The most major intrusion into an orderly customary life, perhaps as revolutionary but not a matter of social control; when Gilgamesh discovers that dead people are really dead rather than transformed into another kind of life, was the introduction of the social control of law to counter custom as the way to do things. Law was an invention thought of in Oresteia as a way to counter elemental passions. It is more clearly adumbrated by Abraham who brought from Mesopotamia that the way to overcome time was to set contracts so that an exchange did not have to take place at the moment but as a promise to deliver goods at some other time, the past agreement holding fir the future. What Abraham did was expand the idea of law to cover all of social life, whether how roving bands should behave under preset rules when raiding one another and also, as in Sodom, how many good peop[le would redeem a bad population, under the assumption that there is a just measure and that even God obeys it and haggles about the fright redemption. Law is therefore independent of God in that God obeys it and is treated as coterminous with God because God is like law in being invisible and everywhere/. The association between religion and morality has remained ever since even to the extreme position by Dante that moral infractions are to result in eternal punishment or at least eons of suffering. God is today about being good rather than about the power of invisible people and remote places. Religion suggests that people cannot do without law however harsh it may be at least until people are transformed so that they don’t need it because they will all become of good will. Law creates obligation and all the intricacies of legal systems that make social life orderly and so is a counterweight of custom, rules outspoken rather than tacit, however many legal terms such as “excessive force” rely on custom rather than clear definitions of a situation as compelling or not.
But this is the fly in the ointment. Here is the great paradox about law, as was discussed by G. E. Moore in his “Ethics”, that always turns it into an ideological muddle. Every law states categories that are to be transposed from one moment to the next. But how is one to be sure that a given instance is an example of the general term or principle. The Decalogue says “Thou shalt not kill.” But mist people exempt killing done in warfare. So a distinction is made between murder and killing. What warrants the exception? That is a different principle from the general rule, perhaps justified that states can kill but individuals can, even though actual people engage in warfare and kill people. So it is always an independant matter to decide whether an example fits the rule or is an exception to it, te person having to decide when it applies, Moore thinking that it is your sense of things feels correct or not, as when a person decides a abortion in yourfamily is acceptable even if upholding abortion to be bad as a general principle, in which case the person is a hypocrite or accepts tier own criminality or else carves out a set of exceptions, such as rape and incest or a mother too immature to bearthe burdens of childrearing, which is demanding of adult well put together people. However, for all its stutters, its fits and starts, law remains as a way to proceed with an orderly and humane society and a bulwark against politics which can be decisive even if badly thought through or simply just frenetic.