promethea.incorporated

molibdenita:

socialjusticemunchkin:

rendakuenthusiast:

funereal-disease:

guerrillamamamedicine:

Law professors and lawyers instinctively shy away from considering the problem of law’s violence.  Every law is violent.  We try not to think about this, but we should.  On the first day of law school, I tell my Contracts students never to argue for invoking the power of law except in a cause for which they are willing to kill. They are suitably astonished, and often annoyed. But I point out that even a breach of contract requires a judicial remedy; and if the breacher will not pay damages, the sheriff will sequester his house and goods; and if he resists the forced sale of his property, the sheriff might have to shoot him.

This is by no means an argument against having laws.

It is an argument for a degree of humility as we choose which of the many things we may not like to make illegal. Behind every exercise of law stands the sheriff – or the SWAT team – or if necessary the National Guard. Is this an exaggeration? Ask the family of Eric Garner, who died as a result of a decision to crack down on the sale of untaxed cigarettes. That’s the crime for which he was being arrested. Yes, yes, the police were the proximate cause of his death, but the crackdown was a political decree.

The statute or regulation we like best carries the same risk that some violator will die at the hands of a law enforcement officer who will go too far. And whether that officer acts out of overzealousness, recklessness, or simply the need to make a fast choice to do the job right, the violence inherent in law will be on display. This seems to me the fundamental problem that none of us who do law for a living want to face.  

But all of us should.

It is an argument for a degree of humility as we choose which of the many things we may not like to make illegal.

I’m a fan of Conor Friedersdorf’s brand of libertarianism.

Are any readers persuaded by the notion that some laws they would otherwise support are better repealed, or never passed, because the benefits do not justify the violence that is likely to be triggered, sooner or later, by attempts at enforcement?

Some laws? Maybe. All laws? Well, I wouldn’t want to beat Bernie Madoff to death, but I still think he should be in jail – so, I guess not?

And if we’re going to invoke unintended consequences, I might as well mention that a weak rule of law can lead to unethical business practices (e.g., breaking your debtors’ legs), vigilante mobs and even civil war – so, is not enforcing the law also inherently violent?

I don’t want Madoff to be in jail, I want him to pay back the stuff he scammed and to work for a sufficient fraction of the rest of his life in the most profitable job he can while losing almost all of that money to those he hurt. Him rotting in jail helps nobody, and only hurts both him and innocent people who are forced to pay for keeping him there.

And ultimately everything is inherently violent. It’s violence all the way down; the only question is how to minimize it so that as much non-violence as possible can be built on top. And when it comes to that, handing the democratic mob a ready and simple tool to do violence to those who do things the mob doesn’t like.

@cassisscared: “No, at least to OP, because in most cases of application of a law violence is never involved; in most cases it is no-one dies. Deciding whether to use a tool based on one of the worst-case outcomes of that tool is just bad decision-making.”

I think this is kind of non-relevant; most of the time people submit to laws because they know that violence will ensue if they don’t. If it wasn’t about violence people could be just asked to not/do things.

One could construct a similar argument that the mafia collecting protection payments is mostly non-violent as in most cases nobody gets hurt.

And I don’t think it’s just about the worst-case outcomes; it’s (at least my version is) more about the fact that it adds violence to the universe and ends up doing coercion, which is bad because it forces people to do things against their will which is Obviously Terrible . Coercion is hard to minimize if it’s widely accepted that people may impose arbitrary coercion just because they like/don’t like something. There’s an empirical claim that more generally reducing people’s ability to make certain kinds of laws might end up making the world better even if it causes some harmful effects (because you can never have a perfect utopia). Strong constitutions, limited government in both scope and intrusiveness, etc. would make it harder to make many kinds of laws but if they are calibrated to mostly affect the kinds of laws the making of which is a predictably bad idea they would quite likely be a good thing.