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Tuesday, February 02, 2010
Respect For The Law
In a recent exchange of views about abortion, your Curmudgeon opined that even though all abortions are morally reprehensible, a law that bans all abortions would be a mistake, being unenforceable. He didn't trouble to explain why. He was immediately taken to task by a gibbering idiot -- if we can go by the volume of gibbering, there've been a lot of them around, lately -- who claimed that that was equivalent to saying that the law against murder should be repealed, being "unenforceable." Apparently, said idiot thinks a law is "unenforceable" if there's anyone who dares to violate it.
That's not what makes a law unenforceable.
In a polity that respects, or claims to respect, certain individual rights, a law is unenforceable if its enforcement requires the violation of those rights. For example, the Fourth Amendment to the Constitution:
The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.
...would forbid government to compel individuals to accept monitoring devices in their bodies, except for those who had been convicted of a crime for which such an intrusion is part of the prescribed penalty. Clearly, that would make it impossible to enforce a law against the earliest-term abortions: Who, other than the woman going for her "menstrual extraction," could know that an embryo is growing within her?
A law can be also be unenforceable because it simply isn't enforced. Laws against adultery, sodomy, and fornication are excellent examples, though they're also unenforceable because of Fourth Amendment considerations. If the organs of law enforcement refuse to dedicate the necessary resources to enforcing a particular law, it will fall into desuetude.
Finally, a law can be unenforceable because of Objection One. A sufficiently large number of persons willing to break the law and risk the legal penalty will produce a situation wherein, no matter how much enforcement power is brought to bear, selective enforcement will result. Selective enforcement is death for a polity that upholds the rule of law...which should give persons interested in America's prospects pause, when you think about it.
Quite a number of persons will nevertheless back an unenforceable law, for example the laws we collectively call the War on Drugs, because it "sends a message." But to create unenforceable laws to "send a message" is to subordinate the principal function of the law -- deterring predation by punishing predators -- to a desire to express disapproval of some practice. As pundits too numerous to mention have said, "If you want to send a message, call Western Union."
Every unenforceable law weakens respect for law in general. A sufficient number of such laws destroys law as a stabilizing force.
Rose Wilder Lane noted in her book The Discovery Of Freedom that it's not law that protects Americans' persons and property, but rather the near-to-unanimous respect for person and property that Americans feel. In that sense, laws against murder, theft, and so forth are merely codifications of a sentiment shared by all but a very few of us. Without the overwhelming concurrence in their rightness, they would be as impotent, and as widely disrespected, as the War on Drugs.
Note that about 90% of Americans "support" the War on Drugs. That is, they would enthusiastically concur in its rightness and cooperate in its enforcement...unless a family member, or a close friend, were accused. That degree of support is far from enough to make the drug laws enforceable. Comparable majorities supported alcohol Prohibition and military conscription, which came near to undoing the fabric of the Republic before they were repealed.
When several million persons are willing to violate a law despite the risks, the law is unenforceable. People come to understand that through experience and anecdote. They respond, subconsciously, by drawing lines: lines through the law, to divide those statutes that uphold their bedrock conceptions of right and wrong from those that, however wholesome of aspect, strike them as "nice, but not essential." Thus we get the dominance of the personal ethic over the dictates of formal law: a condition that guarantees that law as such will be relegated to "nice, but not essential" status.
Many persons would react to this by saying, "So what? If our personal ethics are consistent around basic principles of right and wrong, we'll be okay." This, to be gentle about it, is not the case. Formal law exists to stabilize society: to create conditions within which individuals can predict what consequences will flow from what decisions and actions. One aspect of that stability is the suppression of mob justice and the regulation of punishments. If one thief is punished merely by being shamed before his neighbors, but another is set swinging by the neck from the bough of a maple tree, deterrence has been disserved. Persons who might be tempted to steal will confront a confusing set of possibilities. Given criminals' characteristic optimism -- believe it or not, no criminal ever expects to be caught and punished -- the trend will be toward more theft, not less.
Perhaps the most important legal development in human history was the lex talionis, most commonly phrased as "An eye for an eye, a tooth for a tooth." Talionic justice is often castigated as unthinkably harsh; yet before the talionic principle was articulated, the retribution for a crime was dictated by the emotions of whoever undertook to punish it. Those emotions can run very high, even when the objective damage suffered by the violated party is small. In classical and pre-classical history, many a protracted, bloody tribal feud, and no few wars, were precipitated by the disproportionate punishment of deeds that all parties recognized as criminal.
Even though we no longer inflict corporal punishment on criminals, the talionic principle lurks beneath our penal codes. Crimes of a defined category have a statutorily defined range of applicable penalties. Death for capital murder; life imprisonment for second-degree murder; so many years in prison for armed robbery; so large a fine for this or that kind of fraud. At least, that's how it's supposed to be, though the discretion routinely accorded to trial judges and parole boards has undermined the concept.
When the penalty for a crime is fixed in advance and bears some relation to the damage done by the offense, the deterrent effect of the law is strongest.
Some persons would react by saying, "Well, if deterrence is the goal, why not fix the punishment for every sort of crime at death? Wouldn't that scare us all into behaving properly?" Fortunately, no: It would be far more likely to result in the non-enforcement of all law. Our innate recognition of a scale of justice -- that to treat widely varying offenses as all equally heinous is inherently unjust -- would recoil against it. Also, despite Mankind's supposed bloodthirstiness, we are extremely reluctant to pronounce the sentence of death. Otherwise, the battles over the acceptability of capital punishment would hardly rage as fiercely as they have these past fifty years. It's not just because too many liberals sit on the benches of appellate courts.
The above limitations on human lawmaking and law enforcement have been well established by experience. As the centuries have rolled past, we've learned, often with great reluctance, that we cannot preserve respect for the law without attending to the law's limits: what it must and must not address, and what lies within its power to enforce. Every dismissal of those limits has damaged both the general respect for the law and the well-being of the society that made it. The laws of nature, which no legislature can repeal nor modify, remain forever prior and superior to our notions of proper deportment:
This law writes the laws of cities and nations. It is in vain to build or plot or combine against it. Things refuse to be mismanaged long. Res nolunt diu male administrari. Though no checks to a new evil appear, the checks exist, and will appear. If the government is cruel, the governor's life is not safe. If you tax too high, the revenue will yield nothing. If you make the criminal code sanguinary, juries will not convict. If the law is too mild, private vengeance comes in. [Ralph Waldo Emerson, "Compensation"]
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