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MattDavisRatner-SecondPaper 7 - 10 May 2008 - Main.EbenMoglen
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Allowing Laws to be Broken: A Restriction on Freedom | | | 3) Are the issues different for state and federal governments? State rules affect a population with more similar concerns, but we still remain one nation with supposedly the similar goals.
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- The proposition that full enforcement is the best approach to a bad law is really an example of making both the best and worst the enemy of the good. First, full enforcement is not the same as enforcement when a policeman is primary witness to the infraction: that's infinitesimal enforcement. Rudolph Giuliani increased enforcement for simple marijuana possession (against which he had a strong personal prejudice) by 4800%, with no noticeable effect on public resistance or infraction. If the magnitudes of increase necessary to provoke organized dissent are much larger than that, the degree of enforcement necessary would not only be more than economically tenable, it would create more substantial injustice than mere relief against the law could provide.
- Second, resistance to laws and resistance to law are not perfectly segregable, such that a government can reasonably court substantial public resistance to one unjust law through full enforcement without deteriorating spontaneous obedience overall. Both the historical lesson taught by Prohibition and the theoretical literature concur in warning against deliberately creating resentment against law enforcement.
- Third, resource allocation decisions in the enforcement system are made by politically responsible actors, who in addition to their own judgments about the wisdom of fighting Pyrrhic wars will be held responsible by voters for decisions about enforcement of laws they cannot change. Asking elected District Attorneys to infuriate voters through expensive and oppressive enforcement of laws they don't want enforced but the DA is powerless to change makes no sense whatever, either from the perspective of democratic theory--which is the sole motivating conception launching us on this charade--or from a realistic view of the politically possible.
- The premise itself might also be questioned. If, as one expects, a complex modern society contains more law than any one person could know, no matter how expert, regardless of the degree of enforcement, what is the fetish for full enforcement about, from a democratic theory point of view? Has the public no entitlement to substantive expectations democratically chosen, including temperate moderation in the pursuit of law enforcement? A view of democracy that prohibits my electing prosecutors and municipal officials with the expectation that they will appropriately rather than mindlessly execute the legislature's will seems to me neither true to the "separation of powers" conception we claim motivates our science of government, nor responsive to the reality that legislation and governing are separate and mutually dependent activities.
- I think you can spend a little less effort on initial exposition, and I think some of these questions need answers.
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