Not Only Are We All Breaking The Law–Often We Ought to Be


In the midst of making the usual (good, and worth repeating) points about how those who shrug at near universal surveillance with the belief that they are decent law-abiding citizens with nothing to hide have no idea at all how many laws there are and whether or not they are breaking them, Moxie Marlinspike at Wired makes a more inspired point about the dangers of law enforcement that is too knowledgeable and efficient:

Imagine if there were an alternate dystopian reality where law enforcement was 100% effective, such that any potential law offenders knew they would be immediately identified, apprehended, and jailed. If perfect law enforcement had been a reality in Minnesota, Colorado, and Washington since their founding in the 1850s, it seems quite unlikely that these recent changes [in marijuana and gay marriage law] would have ever come to pass. How could people have decided that marijuana should be legal, if nobody had ever used it? How could states decide that same sex marriage should be permitted, if nobody had ever seen or participated in a same sex relationship?

….living in an existing social structure creates a specific set of desires and motivations in a way that merely talking about other social structures never can. The world we live in influences not just what we think, but how we think, in a way that a discourse about other ideas isn't able to. Any teenager can tell you that life's most meaningful experiences aren't the ones you necessarily desired, but the ones that actually transformed your very sense of what you desire.

We can only desire based on what we know. It is our present experience of what we are and are not able to do that largely determines our sense for what is possible. This is why same sex relationships, in violation of sodomy laws, were a necessary precondition for the legalization of same sex marriage. This is also why those maintaining positions of power will always encourage the freedom to talk about ideas, but never to act.

As I wrote in my 2003 article about John Gilmore's failed attempt to travel anonymously, "We are all guilty, and we don't want to live in a world where there is no room to get away with being guilty."

NEXT: Foreign Ownership Makes Verizon and T-Mobile (a Bit) Resistant to NSA

Editor's Note: We invite comments and request that they be civil and on-topic. We do not moderate or assume any responsibility for comments, which are owned by the readers who post them. Comments do not represent the views of Reason.com or Reason Foundation. We reserve the right to delete any comment for any reason at any time. Report abuses.

  1. You know, I appreciate the gays want to marry and people want to smoke weed. I have gay friends and stoner friends, but no gay stoner friends to my knowledge.

    But there are way more freedoms and rights I’m concerned about than these oft-repeated two. WAY more.

    1. Soldiers being quartered in your poolhouse?

      1. More like wearing white after Labor Day.

    2. If you’re writing for a largely liberal audience who’s inclination is to blindly support the President, they are good examples.

  2. Marijuana and gay marriage are both controversial. As such they make very bad examples. You can’t claim everyone is breaking the law, and then point to pot and gay marriage as evidence, because NOT EVERYONE IS A GAY POTSMOKER!

    You need to show how even the most upright, square, church-going, law-n-order, conformist is unknowingly a habitual lawbreaker.

    Have you ever paid a neighbor kid to mow your lawn and not filed the proper forms with the IRS? Have you always done a complete background check for every gardener, nanny, and contractor you’ve hired? Every creep over the line at the intersection, even by accident? Every driven 56 miles an hour? Ever lent a prescription drug to a friend? Every copied/burned a CD to listen to in your car? Ever “borrowed” an open wifi connection while traveling? Ever forget to use your turn signal? Ever carry a fresh apple across state lines? Forget to put up that carbon monoxide detector this January like you were told?

    1. Better example: aiding runaway slaves. Of course I’m sure some people would contend that not all laws are as bad as those ones were, but it is enough to show that laws should not be obeyed simply because they are laws. There needs to be some underlying REASON why a law should BE a law, and subsequently be followed.

      1. But no one owns any slaves today, so no one will get the point.

        My mother used to all in favor of heavy handed thuggery against firms music “pirate”, until I informed her that she herself was breaking the law by copying her CDs onto tapes to play in the car.

    2. But that also misses a large reason why we have the 3 felonies a day phenomenon.

      It’s not just laws that affect everyone, because in fact, laws with serious punishment for things everyone participate in and have no support at all are untenable.

      It’s the laws that nominally affects a minority of people (but could interpreted to affect a larger number), BUT having a ton of those laws, such that there’s a law for everyone
      – law X affects 1% of the population
      – law Y affects a different 1% of the population
      – law Z affects a different 1% of the population
      .. and so on, such that you can reach into your criminal code grab bag, like a metaphorical raffle ticket, and find some law that someone breaks somewhere anytime.

      In other words, the accretion of bad laws and 3-felonies-a-day relies on “Hey, it doesn’t affect me, why should I worry”

      1. A for laws that do affect the “common man” it’s mostly on the edges, but with an ever expanding area. The very center of the bell curve for the area affected will be allowed–thus appeasing the majority, but deviations from that center is punished.

        Like with prescription drugs e.g. licensed provider, non person-to-person transfers, etc
        it’s out there on the edges of mainstream activity that most either won’t care, or actually DO approve of restrictions

        Or like what wired mentioned about lobsters:

        For instance, did you know that it is a federal crime to be in possession of a lobster under a certain size? It doesn’t matter if you bought it at a grocery store, if someone else gave it to you, if it’s dead or alive, if you found it after it died of natural causes, or even if you killed it while acting in self defense. You can go to jail because of a lobster.

        As long as people can get their lobster in approved ways i.e. center of the bell curve, they don’t care happens on the sides of the bell curve.

        Like what happened to McNab, who is now a felon and spent 8 years on prison, for something innocuous and perfectly legitimate from a libertarian perspective:

        Or horribly disproportionate response of facing 25 years prison, to what should have been a misdemeanor at worst, for stealing $350 worth lobsters:

        1. Don’t forget about going to prison for defending your child against a mountain lion. Such is not out of the range of possibility in many suburbs in California.

      2. I once defended myself in court for a traffic ticket. Doing my research I discovered not only was the police officer wrong in giving me a ticket, but that I had inadvertently broken three other traffic laws. My argument to the judge did not include those, of course.

        Cops can, and will pull you over for nothing at all, and a quick glance in your window will give them legal justification to search everything. The best defense is not to cite your rights to the cops, the best defense is to keep a low profile so you don’t get pulled over in the first place. And if you do get pulled over nine out of ten times they’re just telling you to fix your broken taillight, so don’t go antagonizing them right off the bat.

        Traffic violations are not felonies of course, most aren’t even midemeanors. But if you have even a marijuana seed underneath the seat, left by the former owner of the car, they can quickly escalate into felonies.

    3. I think he’s trying to use examples that involve laws that have changed or are likely to change in the near future.

      Only laws of that type fit the “lawbreaking caused people to realize the law itself was pointless” paradigm.

      Your examples fit more into the category of “laws people break all the time, but precisely because people break them, no one bothers to change them.”

      I think that’s a much more significant phenomenon, actually, and one Doherty ignores here.

      If perfect enforcement of the regulatory state at all levels sprang into existence instantly this morning, the system would collapse, precisely because the only way the law is bearable is because it’s not actually consistently enforced. That’s the paradox. Our bureaucracies function (poorly, and just barely, but they function) because expediters break the rules. Our law enforcement system functions because cops ignore most crime, when people of the right color and who live in the right neighborhood are committing it. Etc. If that “grease” in the machine went away, the engine of the regulatory state would stop. In its final moments it would actually look something like anarchy – every cop fighting every citizen, all movement through every bureaucracy at a standstill, courthouses that looked like hospital ERs during a Captain Trips outbreak, and Malcolm McDowell in a chimp mask running down the street carrying an M-16 as the city burned down around him.

      1. Aw, fuck. The poetry of the last sentence of that post is absolutely ruined by the fact that I committed an unpardonable error.

        Sorry, Roddy.

        1. And yet, even the alternative McDowell made an amusing picture.

        2. Malcolm worked for me. In my mental image, it was a ape/ droog hybrid.

          1. Yeah, that somehow makes the mental image even cooler.

            As if that was possible.

            Maybe it would get cooler if David Keith ran by, and you looked back up in the street in the direction he just came from, and a 9 year old Drew Barrymore was turning police APCs into fireballs with her mind.

        3. The idea of a chimp committing acts of horrorshow ultraviolence intrigues me, and I would like to subcribe to your newsletter.

    4. Ever make a cell phone call from your car? Drink a 24-ounce soda? Buy your kid a Happy Meal? They want to make us all lawbreakers.

  3. What? That’s a couple minutes of my life I’ll never get back.


  4. Ther eis a dude that seems to know what time it is, I liek that.


  5. if we don’t live in and experience a state with full surveillance, how can we know that it’s so bad, and know to criticize it?

    1. Others have experienced it, and they didn’t like it much.

    2. I wanted plenty of things when I was a kid that I hadn’t yet experienced.

  6. I’ve never smoked weed and have no desire to, yet I still support legalization. This is the case for many supporters of legalization. So he fails on his first example.

    AFAIK there is no activity forbidden by the lack of gay marriage, so he fails on the second example.

  7. Did you really think we want those laws observed?” said Dr. Ferris. “We want them to be broken. You’d better get it straight that it’s not a bunch of boy scouts you’re up against… We’re after power and we mean it… There’s no way to rule innocent men. The only power any government has is the power to crack down on criminals. Well, when there aren’t enough criminals one makes them. One declares so many things to be a crime that it becomes impossible for men to live without breaking laws. Who wants a nation of law-abiding citizens? What’s there in that for anyone? But just pass the kind of laws that can neither be observed nor enforced or objectively interpreted ? and you create a nation of law-breakers ? and then you cash in on guilt. Now that’s the system, Mr. Reardon, that’s the game, and once you understand it, you’ll be much easier to deal with.” Atlas Shrugged

Please to post comments

Comments are closed.