There Are Too Damn Many Laws

Recently I wrote:

Have we reached the point where we want to forbid the police to use force, when necessary, to make arrests? Approach this idea with caution, for to grant a monopoly of physical force to the State, except in cases of immediate self-defense, is the very bedrock of the social contract that makes civilization possible. All of our laws, no matter how trivial, ultimately rest upon this foundation. Did you get a parking ticket? You will pay it, or be expected to appear in court to explain why. You don’t show up? A warrant will be issued for your arrest. Men with guns will come to your home to take you into custody. You won’t go? Then you will be physically compelled to go, with escalating force. At the end of that stepwise continuum of force is lethal force, and it will be used if necessary.

In response to this, one commenter asked if I was “for real”. Another, our (formerly) resident “progressive” gadfly, had this to say:

The notion that the police have the right to use lethal force every time a suspect resists arrest is preposterous. Your suggestion that summary capital punishment is the appropriate response for selling cigarettes, and then resisting arrest, is too bizarre to even consider.

All of this is mere sputtering, without any whiff of an actual argument. The underlying premise remains undisturbed: that, absent voluntary compliance (which will always be below 100%), the armed power of the police is all that supports the rule of law — and that, therefore, the more laws there are, the more arrests there will be, and the greater the likelihood of arrests going badly.

Here, writing at Bloomberg, is Yale law professor Stephen L. Carter:

On the opening day of law school, I always counsel my first-year students never to support a law they are not willing to kill to enforce. Usually they greet this advice with something between skepticism and puzzlement, until I remind them that the police go armed to enforce the will of the state, and if you resist, they might kill you.

…It’s not just cigarette tax laws that can lead to the death of those the police seek to arrest. It’s every law. Libertarians argue that we have far too many laws, and the Garner case offers evidence that they’re right. I often tell my students that there will never be a perfect technology of law enforcement, and therefore it is unavoidable that there will be situations where police err on the side of too much violence rather than too little. Better training won’t lead to perfection. But fewer laws would mean fewer opportunities for official violence to get out of hand.

…The criticism is of a political system that takes such bizarre delight in creating new crimes for the cops to enforce. It’s unlikely that the New York legislature, in creating the crime of selling untaxed cigarettes, imagined that anyone would die for violating it. But a wise legislator would give the matter some thought before creating a crime. 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.

George Will, in an item published yesterday on the “plague of overcriminalization”, referred to Professor Carter’s article. He also had this to say:

Garner lived in part by illegally selling single cigarettes untaxed by New York jurisdictions. He lived in a progressive state and city that, being ravenous for revenues and determined to save smokers from themselves, have raised to $5.85 the combined taxes on a pack of cigarettes. To the surprise of no sentient being, this has created a black market in cigarettes that are bought in states that tax them much less. Garner died in a state that has a Cigarette Strike Force.

One problem is that good, law-abiding people — like our commenters — simply have not considered the full implications of the rule of law. To the extent that they have thought about it at all, they suppose that small laws will be enforced in gentle ways. So docile are these good people, and so fully committed to the implicit “social contract”, that it is hard for them even to imagine what adversarial enforcement may actually entail. To them, the idea that some who break these small laws might suddenly, and occasionally suicidally, invoke the physical power of the police to enforce them — which is, I will say again, the only thing that gives the rule of law its power to prevail against chaos — is “unreal”, or “bizarre”.

In mute testimony to their naiveté, Eric Garner lies dead.

Winston Churchill once said: “If you have ten thousand regulations you destroy all respect for the law.’ As of 2010 the Code of Federal Regulations listed over a million of them. New ones are added at a dismaying rate.

31 Comments

  1. Asher says

    I have had numerous conversations with leftists who dispute that law is predicated on force. In fact, I was banned from the philosophy blog run by philosophy profs for making that argument.

    Posted December 11, 2014 at 9:18 pm | Permalink
  2. Malcolm says

    Idiots. Did any of them tell you on what foundation, then, it is secured?

    Posted December 11, 2014 at 9:20 pm | Permalink
  3. Asher says

    *philosophy blog Crooked Timber*

    Posted December 11, 2014 at 9:21 pm | Permalink
  4. Asher says

    Fairness. They are big fans of John Rawls. One of them was named John Quiggins who is a pretty prominent professor of philosophy in Australia specializing in moral and political philosophy.

    Most progressives I have encountered categorically deny that law is predicated on force.

    Posted December 11, 2014 at 9:24 pm | Permalink
  5. Malcolm says

    You should make the acquaintance of our friend Bill Vallicella, the Maverick Philosopher (who also, I’ve just noticed, made note of George Will’s piece today). I think you will find him rather more sensible.

    Posted December 11, 2014 at 9:24 pm | Permalink
  6. Malcolm says

    “Fairness”? That is a basis for designing a system of law. But in the absence of force, what does the law do when some people simply ignore it?

    The problem, you see, is that in a world made up entirely of of Rawlsian professors of philosophy, compliance with the law will be almost universal — especially, of course, when it is they who have written it.

    A ride-along with the Detroit police some hot weekend night might be broadening.

    Posted December 11, 2014 at 9:25 pm | Permalink
  7. Asher says

    It seems quite obvious that the sine qua non of law and politics is social order. Progressives seem to take social order as a permanent given, basically begging the first question of human society.

    Posted December 11, 2014 at 9:26 pm | Permalink
  8. Asher says

    Look, I was working on a phd in philosophy so I’m quite aware of the field but I have found that progressives seem to think that social order is just a given that always happens, as if by magic. Suggest to them that chaos and anarchy is a completely real possibility and they will just mock you.

    It’s quite weird.

    Posted December 11, 2014 at 9:28 pm | Permalink
  9. Malcolm says

    Asher, your last two comments are exactly right. Peace and order are the air these people have breathed since birth. They cannot imagine what lies beyond the small circle of light.

    I wrote something about this after the Virginia Tech shootings.

    Posted December 11, 2014 at 9:30 pm | Permalink
  10. Asher says

    A ride-along with the Detroit police some hot weekend night might be broadening.

    No. Because. Racism.

    Posted December 11, 2014 at 9:31 pm | Permalink
  11. Asher says

    Personally, I have found the best tack to take with progressives is to categorically deny that their favorite slurs, like “racism”, mean anything. I teach every non-prog to do that.

    Posted December 11, 2014 at 9:33 pm | Permalink
  12. Malcolm says

    I’ve been doing the same myself.

    Posted December 11, 2014 at 9:35 pm | Permalink
  13. Asher says

    yeah, near as I can tell the only way to shake their torpid slumber is very real social breakdown

    Posted December 11, 2014 at 9:35 pm | Permalink
  14. Malcolm says

    I believe a “very real social breakdown” is already underway, and will reach a crisis before very much longer.

    Posted December 11, 2014 at 9:36 pm | Permalink
  15. Asher says

    There should be a comprehensive list of words favorited by progressives that non-progressives should contest as being meaningless and the rhetorical tactics to deal with them taught.

    Posted December 11, 2014 at 9:37 pm | Permalink
  16. Malcolm says

    Sounds like a best-seller. Proceed!

    Posted December 11, 2014 at 9:40 pm | Permalink
  17. Asher says

    There’s a problem. I suspect that most of the current intellectual errors will remain and will plague what rises from the ashes

    Posted December 11, 2014 at 9:41 pm | Permalink
  18. Malcolm says

    Faint heart ne’er won fair lady, my friend. And sufficient unto the day is the evil thereof.

    Posted December 11, 2014 at 9:43 pm | Permalink
  19. Asher says

    Hell, I see so much intellectual rot in so-called conservatives

    Posted December 11, 2014 at 9:44 pm | Permalink
  20. I’ve quoted it before, but the Tao Te Ching, Chapter 57, is worth re-quoting here:

    The more rules and regulations,
    The more thieves and robbers.

    Posted December 11, 2014 at 10:49 pm | Permalink
  21. Malcolm says

    What we have now would have been almost literally unimaginable in those days.

    Posted December 11, 2014 at 10:50 pm | Permalink
  22. Asher says

    Frankly, moral philosophy is dead. Consider the following practical question: how do you break the welfare state?

    Obviously, you overload it.

    How can we, sitting commenting on the internet, work to break the welfare state?

    Posted December 11, 2014 at 11:21 pm | Permalink
  23. “One problem is that good, law-abiding people – like our commenters – simply have not considered the full implications of the rule of law. To the extent that they have thought about it at all, they suppose that small laws will be enforced in gentle ways.”

    You’d think they’d get a hint from the root word in “enforce.”

    Posted December 11, 2014 at 11:41 pm | Permalink
  24. Asher says

    You’d think they’d get a hint from the root word in “enforce.”

    I have pointed this out and have been told to stop playing semantics. The rot runs unbelievably deep.

    Posted December 12, 2014 at 12:12 am | Permalink
  25. “As of 2010 the Code of Federal Regulations listed over a million of them.”

    With that many regulations on the “books”, it is almost certain that everyone can be successfully prosecuted for some violation.

    Is it not possible that this has been accomplished intentionally so that anyone whose profile rises above some threshold and who pisses off the powers that be can be persuaded to change his tune? Just askin’ …

    BTW, Malcolm, what do you mean by “(formerly) resident”? Has he become a transient?

    Posted December 12, 2014 at 1:06 am | Permalink
  26. Malcolm says

    After years of wholly unproductive argument in comment-threads that run to thousands of wasted words, he comments much less frequently.

    Posted December 12, 2014 at 12:43 pm | Permalink
  27. Malcolm,

    I empathize with your feeling of, seemingly, wasted time and energy, of which you have expended inordinate amounts, IMHO. I do urge you, as a friend and admirer, to redirect some of those efforts toward more personally rewarding ambitions.

    But if it’s any consolation, your words have not been wasted, from my own point of view.

    Posted December 12, 2014 at 2:07 pm | Permalink
  28. JK says

    With that many regulations on the “books”, it is almost certain that everyone can be successfully prosecuted for some violation.

    Quite so Henry.

    Back a couple of years ago I had occasion to find myself *arguing* the merits of an Arkansas Statute as it was written, comparing it to the UCMJ Article 134 (sometimes referred to as The General Order) which, since it is known a military simply cannot function under such a thing as the US Constitution, each member of the US military learns early on …

    Anyway, Arkansas has enshrined in its Disorderly Conduct law the phrase, “any person who annoys another person shall be guilty of Disorderly Conduct.”

    I offered, rhetorically of course, “Would not passing gas in church then make a person subject to arrest?”

    The Judge after some pause nodded simply indicating what I took to be

    “Affirmative.”

    Posted December 12, 2014 at 6:15 pm | Permalink
  29. “The horror! The horror!”

    Posted December 12, 2014 at 6:45 pm | Permalink
  30. On the topic at hand, yes, agree completely about too many laws. #Eric Garner, not enough background research into previous police contacts with Eric Garner, benign, loose cigarette seller to understand why police acted with force. This website GotNews reported Mr. Garner had 8 domestic reports filed against him and also a possession of narcotics pick-up. Along with that, he had connections with organized crime in regards to his cigarette “business”. If true, this “history” might shed light on how the police handled Mr. Garner……. victim.

    http://gotnews.com/breaking-ericgarner-least-8-domestic-incident-reports-filed/

    Posted December 13, 2014 at 12:51 pm | Permalink
  31. “After years of wholly unproductive argument in comment-threads that run to thousands of wasted words, …”

    Just for grins:

    [img]http://dilbert.com/dyn/str_strip/000000000/00000000/0000000/200000/30000/2000/200/232293/232293.strip.sunday.gif[/img]

    Posted December 14, 2014 at 1:52 pm | Permalink

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