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Free Minds & Free Markets

There Ought Not Be a Law

The world is an imperfect place, but laws tend to make things worse, not better.

Treasury Secretary Steve Mnuchin wants limits on virtual currencies, like Bitcoin, that help people keep their financial lives private from folks like him. Senator Dianne Feinstein wants government regulation of political speech by foreign agents—or maybe just by people with whom she disagrees. Gun control activists want more restrictions with which to threaten peaceful gun owners so that violent predators who break laws will have more things to ignore.

If ever there was a "there oughta be a law moment," we're living in it. At least, we're living in one of all too many such moments. Because people are forever looking to the law as the solution to the ills they perceive in the world around them—often only to spackle over the failures of the previous round of laws. In the process, they're forever forgetting that laws are usually nothing more than codified prejudices, imposed against resistant populations, by sometimes incompetent and often corrupt enforcers.

"The Law is a huge blunt weapon that does not and will not make distinctions between what you find acceptable and what you don't," writer Neil Gaiman responded in 2008 to a question about his opposition to the U.S. federal prosecution of Christopher Handley over the possession of erotic cartoons. The writer had been challenged over free speech advocates' claims that it was difficult if not impossible to clearly differentiate between "acceptable" images and those bound to run afoul of the law. Gaiman noted that he was born the day D. H. Lawrence's Lady Chatterly's Lover became legal for publication and sale in the United Kingdom after years of bans under obscenity laws. Moreover, one of his publishers nearly went to prison over some of Gaiman's work "that contained a rape and murder, and this was held to have contravened a Swedish law depicting images of violence against women. The case was only won when the defense pointed out that the words were from the King James version of the bible, and that the images were a fair representation thereof."

What if the scene was drawn from a source other than the Bible? Would the publisher have still been insulated from prosecution? Maybe even the most careful efforts at applying the law are inherently dangerous.

"I always counsel my first-year students never to support a law they are not willing to kill to enforce," Yale Law School's Stephen L. Carter wrote in 2014. "Officials who fail to take into account the obvious fact that the laws they're so eager to pass will be enforced at the point of a gun cannot fairly be described as public servants."

Carter pointed out that there are now so many laws that there is no easy way of knowing if any given action is legal or illegal. And even the pettiest law, he emphasized in the wake of the killing of Eric Garner by police during a confrontation over the sale of loose cigarettes, requires violence and the risk of death to enforce.

"Don't ever fight to make something illegal unless you're willing to risk the lives of your fellow citizens to get your way," he wrote in closing.

Even that scenario assumes some degree of good faith on the part of prosecutors and enforcers—honest efforts to interpret and apply the law. But what of those police and prosecutors are people just like you and me, subject to all of the incentives, fair and foul, that drive our actions?

"Sending the proceeds of forfeiture to the state's General Fund would result in fewer busts of drug and stolen property rings," Brian McVeigh, president of the Alabama District Attorneys Association, and Dave Sutton, president of the Alabama Sheriffs Association, cautioned in an op-ed opposing legislative efforts to reform the use of civil asset forfeiture in their state. "What incentive would local police and sheriffs have to invest manpower, resources and time in these operations if they don't receive proceeds to cover their costs?"

The implication, apparently perfectly acceptable to the authors, is that police make arrests out of expectation of monetary gain. In fact, in a quarter of asset forfeiture cases in Alabama, no charges are ever filed against the people whose property is seized, making it clear that snagging valuables is more important to many officials than the laws they use to justify such theft.

What would such venality look like in the hands of enforcers empowered by our "there oughta be a law" moment—say, with regard to newly popular gun restrictions?

We might get a hint from the scandal that engulfed Baltimore's Gun Trace Task Force, which is specifically assigned to reduce the availability of weapons on that troubled city's streets. Even before two of the officers were convicted of robbery and racketeering, the Baltimore Sun's Dan Rodricks, who has seen earlier police corruption cases, wrote that "the crimes the GTTF officers are accused of are more brazen, more sinister and, in the midst of Baltimore's long surge of violence, more Gotterdammerung-ish than I imagined." Six other officers pled guilty in the case, department officials torpedoed their own careers through misconduct, and thousands of convictions linked to the task force are now under review.

But this is no surprise. Law is crude, at best. It's a weapon in the hands of politicians seeking to rouse up their base in support of themselves—and against their enemies. It's a tool that people envision as a shield against their fears, but which are then interpreted by enforcers in often unexpected ways, and sometimes for personal gain.

"Criminal law is a blunt instrument that should be used only as a last resort," Orin Kerr, now of the University of Southern California Gould School of Law, wrote in a 2008 article calling for legal restraint when dealing with cyberspace. "The state's power to deny individuals their freedom is an extraordinary power, and it should be reserved for harms that other mechanisms cannot remedy."

Orin Kerr and Neil Gaiman recommend legal restraint, and Stephen L. Carter counsels that "fewer laws would mean fewer opportunities for official violence to get out of hand."

In other words, this is a moment in which should consider the possibility that "there oughta be a lot fewer laws," not more.

Photo Credit: Top Photo Group/Newscom

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  • Scarecrow Repair & Chippering||

    My experience is that government is incompetent at almost everything it touches. I refrain from saying "everything" only because I don't know everything it does, and there may well be some small things which it does no worse than any private individual or organization would do. But I know of nothing that government does well, or even as well as any random person or company would do.

    This incompetence is not limited to government. Businesses and people also do a lot of incompetent things. But they have the market and competition to set things right and to hold them accountable for mistakes. Government has no such accountability, except for the extreme case of rebellion. Elections only hold politicians accountable for not being corrupt enough and/or not hiding their corruption well enough.

    Even their core competency, violence, is poorly handled. The Mafia does far better. You don't see the Mafia running around shooting dogs and throwing flash bangs into cribs.

  • FlameCCT||

    If government kept itself to the Constitutional limitations then it would probably function well however it doesn't. ;-)

  • Scarecrow Repair & Chippering||

    I don't think it would. It's an unaccountable bureaucracy, and still would be if ti followed the Constitution, because it has no competition, no market, and can never go bankrupt. It might not be as evil, but its incompetence would never be punished by the market.

  • IceTrey||

    Actually if the Constitution was followed the only legal tender would be gold and silver coins so if the government ran out of those they would go bankrupt.

  • Quixote||

    Government is indeed (and quite fortunately so) incompetent and most regulations are foolish, except for a single law that has allowed us to suppress inappropriately deadpan "parody" in New York. See the documentation of our nation's leading criminal "satire" case at:

    https://raphaelgolbtrial.wordpress.com/

  • Fist of Etiquette||

    Give Tuccille a break!

  • Scarecrow Repair & Chippering||

    A law break? Surely you .... well, maybe not.

  • Get To Da Chippah||

    One might say there naughta be a law.

  • Hank Phillips||

    Oooooo! Look at the change. At Amritsar in 1919 the Brits gunned down a thousand or so rightsless Sikhs and Hindus. In the 1920s it was routine for Brits, Frogs, Japanese soldiers and Gringos to mow down dozens of civilians in the streets without a why or a wherefore in China, Manchuria and Korea. Then, after National Socialism freed Germany and Soviet Socialism freed Russia and buffer states, it took actual machine guns to kill people as fast as the fascions of the time demanded. In all those cases the perps relied on Kristallnacht gun bans to make sure nobody got his hair mussed in the midst of some good-natured, rough-and-tumble enforcement activities.

  • Number 2||

    It's astounding how many people calling for new laws creating new crimes are the same people who are offended that employers take criminal histories into account when hiring job applicants, and claim that it is unfair for someone to pay for the "rest of his life for a mistake." It never seems to occur to them that there would be fewer people in this "unfair" circumstance if there were fewer criminal laws with which to convict them in the first place.

    The same people also complain about the racial disparity in conviction rates. Yet they happily pass new criminal laws without even giving a thought to the fact that this will only exacerbate the racial disparity in conviction rates, or that minorities will be disproportionately the ones punished.

  • FlameCCT||

    In the words of the great philosopher, Forrest Gump:
    Progressive is as Progressive does!

  • Quo Usque Tandem||

    Nice paraphrase.

  • Earth Skeptic||

    Yes, well, humans are human (meaning they tend to be irrational, biased, emotional, and at best logically inconsistent).

    So, why democracy?

  • Scarecrow Repair & Chippering||

    I think because it's about as far as the statists can let go; it gives the public the figment of control while ceding very little actual power. Tyranny of the majority is better than tyranny of a single dictator, but that's a pretty low bar.

  • Quo Usque Tandem||

    "If ever there was a 'there oughta be a law moment,' we're living in it. At least, we're living in one of all too many such moments. Because people are forever looking to the law as the solution to the ills they perceive in the world around them—often only to spackle over the failures of the previous round of laws. In the process, they're forever forgetting that laws are usually nothing more than codified prejudices, imposed against resistant populations, by sometimes incompetent and often corrupt enforcers."

    Could we inscribe this on a national monument somewhere? Or emblazon it on the cover of textbooks?

  • Curt||

    "Because people are forever looking to the law as the solution to the ills they perceive in the world around them..., they're forever forgetting that laws are usually nothing more than codified prejudices..."

    "Don't ever fight to make something illegal unless you're willing to risk the lives of your fellow citizens to get your way,"

    "It's a weapon in the hands of politicians seeking to rouse up their base in support of themselves—and against their enemies. It's a tool that people envision as a shield against their fears"

    I think that you give these people too much credit. Their fellow citizens whose lives are at risk, exist as their enemies. Maybe those enemies are called deplorables. Maybe illegals or commies. But, they view them as subhuman "others". I think that the risking of life during enforcement is seen as a feature, not a bug.

  • I am the 0.000000013%||

    There oughta be a t-shirt

    "Laws are usually nothing more than codified prejudices, imposed against resistant populations, by sometimes incompetent and often corrupt enforcers."

  • CE||

    Law is often but the tyrant's will, and always so when it violates the right of an individual -- some 18th century slaveholder.

  • Hank Phillips||

    You misspelled collaborationist...

  • CE||

    L. Neil Smith had the best plan I've seen for reducing legislative bloat: a 100 year moratorium on new laws and regulations. Let the economy adapt and grow without new and changing barriers to progress in meeting human wants.

    I would add that existing laws could be repealed without violating the moratorium.

  • UnrepentantCurmudgeon||

    Marcus Aurelius said it best, though context was slightly different. He pointed out that a leader should not direct his followers overly much, because once you take charge of a situation you must keep charge of it, which means that your control must always expand.

    Laws are like that. Each law requires enforcement, which means increasing the number of enforcement agencies and their officers. Also, more detention and incarceration facilities and the constant push for harsher sentencing.

    And are we any better off? I'd say not. We have so many laws that nobody even knows, day to day, in the course of seemingly ordinary activities, whether he or she is acting within the law. I read somewhere that each of us commits about three state or federal felonies a day. Don't know if it's true but it doesn't sound outlandish.

    Even a complex society can live by simple laws. The only problem is that assumes good faith on the part of society and the population toward each other. Animals in their packs and herds seem to have accomplished that for the most part. We humans lag far behind.

  • Hank Phillips||

    Damn good opening paragraph!

  • IceTrey||

    There's nothing wrong with laws as long as they follow the NAP. The problem is the government initiating force. The solution is to limit government authority to the retaliatory use of force.

  • phenryinohio||

    The best government is the government that governs the least.

    I never realized how many people can disagree with such a basic concept.

  • dickt-c-s||

    No, there oughtn't be a law. And politicians shouldn't - just stand there. (And leave us alone.)

  • dickt-c-s||

    Oops, I meant "Politicians shouldn't just do something, they should stand there."

  • RA Landbeck||

    The necessity of ever more laws is only a reflection of the moral deficit in understanding responsibility and integrity which evolution has left our species. Thus any further human progress will have to come about not via written laws but through insight that speaks to a deeper, unrealized potential and reality within the human condition.

    What constrains the highest of human aspirations is rarely imagined. Unfortunately the world has usually preferred the soft, the easy and more convenient ways of intellectual vanity, political correctness and spiritual confectionery and self deception than the honesty and courage to confront human nature itself! http://www.energon.org.uk

  • Rath||

    Re Garner:

    The loose cigarettes thing was a lie concocted after the fact.

  • Mark22||

    In the process, they're forever forgetting that laws are usually nothing more than codified prejudices, imposed against resistant populations, by sometimes incompetent and often corrupt enforcers.

    Which is why libertarians (remember those?) prefer codified prejudices imposed against a willing population. We call those things "contracts".

    The point is: libertarianism probably doesn't result in fewer prejudices being codified, nor does it result in fewer constraints on what people can do, but it does let people vote with their feet.

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