Excerpt from Guarding Life’s Dark Secrets:

I describe, chiefly for the nineteenth century, a complicated network of doctrines that seemed to be designed to protect reputation and that operated chiefly for the benefit of respectable men and women. … I call this network of doctrines the Victorian compromise. … Some … legal institutions … act to protect the reputation of people who are not innocent —people who are the victims, not of lies, but of the bitter truth. …

Take, for example, the crime of blackmail. … Who is the victim here? It is a man who has committed a crime or who has done some scandalous or awful act, one that would blacken his reputation if the news got out. Yet the law defines him as a victim. …

Take the old law about breach of promise. If a man promises to marry a woman and then backs out, she can sue him for damages. In many cases her real complaint is that she had sexual intercourse on the strength of his promise. … Here too the woman, like the blackmail “victim,” is hardly innocent. She violated nineteenth-century norms. She was guilty of fornication, which in many states was actually a crime. But despite her sins and transgressions, the law gave her this remedy. …

The living law of prostitution is yet another example … Prostitutes themselves were mostly social pariahs. … Yet, curiously enough, prostitution itself for much of our history was not actually illegal. Prostitutes were jailed as vagrants, and brothel keepers could be prosecuted, but buying and selling sex itself was not clearly labeled a crime. What this meant is that customers of prostitutes were immune from prosecution. … A screen of silence, and even some aspects of the formal law, shielded the men and protected their privacy and their reputations. …

The Victorian compromise … put enormous emphasis on surface behavior. The official rules remained in place, sometimes expressed in quite general or absolute terms; meanwhile, the law in action was quite different. There is a kind of double standard. No real attempt is made to enforce the official rules with vigor. They remain slogans or a kind of facade; or they are enforced selectively, according to norms and rules that are never made explicit. …

The Victorian compromise should not be dismissed as mere hypocrisy. The living law had a curious double standard, but this had a purpose, at least implicitly. … The laws relating to prostitution were like laws against speeding today. Nobody really thinks speed limits are totally effective. Everybody violates them from time to time. Enforcement is a sometime thing. But the laws, at existing levels of enforcement, are not useless or hypocritical. Arguably, they keep the amount of speeding under control. If you took off the lid entirely, who knows how fast and how recklessly some drivers might drive on the roads. (more; HT Peter Twieg)

Hypocrisy is rarely “mere.” Yes hypocritical acts are usually integrated into a complex equilibrium of mutually adapted behaviors, so that changing any one act alone tends to make things worse. But that hardly justifies hypocrisy – other matching changes are usually possible. For example, I’m told that in Australia they enforce speed limit laws pretty strictly. Speed limits are higher, and it all works out. By comparison, hypocritical speed limits in the U.S. mainly give police more discretion in whom to harass. This might be on net a good thing, but that sure isn’t obvious.