Allowing Laws to be Broken: A Restriction on Freedom

At its core, each law represents at least a slight infringement of our rights. We give power to our government to provide certain social benefits, which we deem necessary, through the enactment of these laws. Very few citizens read the laws and only a fraction of those, or the rest of the population for that matter, can understand the convoluted jargon constituting a law. The population can only evaluate the acceptability of a law through the real-world experiment of common experience. Enforcing a law sparsely, or sometimes not at all, deprives society of its only practical test of that law. The government has made a statement of power by enacting a law that the population may or may not find acceptable, taken away the populace's ability to judge the law, and maintained it as an official policy held over the head of the nation with the omnipresent threat of enforcement.

Simple Real World Example

A small penalty law is helpful as an example and illustrates the same principles underlying laws that are more restrictive. Most states have open container laws prohibiting the possession of an open container of alcohol in a public space. However, due to a combination of the desires of the population and the police, a compromise arose. Place the open container in a brown-bag and no violation ensues in the majority of jurisdictions. While the immediate result is operative, it creates a dangerous mindset: follow the rules you like and not the ones you dislike. If the goal of law is to establish a desirable system to live within, this is not a sustainable creed. Laws lose their meaning if they can be ignored. Citizens lose interest when new laws are enacted, always believing there will be a loophole somewhere, and are therefore not paying enough attention when the government actually decides to restrict a fundamental liberty.

Possible Solution

Enforce all of our laws. The primary objective is to bring the repercussions of each law into the home of the average citizen. An informed populace is a necessary step to provide the balance of power a democracy ought to have. If the citizenry agrees with the purpose and the effect (in all likelihood only the effect will ultimately matter), then there is no need for civil unrest regarding that issue. Conversely, if there is public dissent, then it is incumbent upon the people to pressure the government into a change of policy. A democracy depends upon the consent of its citizens, and the government ought to deserve the consent with open policy rather than assume the consent from a relatively silent apathetic populace.

Practicability

When applying the above solution, opponents will indubitably argue impracticability. Conceding that perfect enforcement is impracticable - although with the advances in privacy infringing technology (e.g. cameras, satellites, etc.) it is an ever-approaching reality - there is no argument that increasing enforcement is impossible. For example, every time a law is broken in front of an officer of the law, it can and ought to be enforced. Violations of the law, especially ones like the low-penalty example above, occur all of the time. Only through actual enforcement will the full power of the government's restrictions and ability to restrict register with the ordinary citizen.

Separation of Powers Violation?

Compelled enforcement has a more serious obstacle to overcome in the doctrine of separation of powers. The legislature is responsible for making laws. It is the duty of the executive branch to enforce those laws. This division allows the executive to check the power of the legislature by choosing which laws to enforce and with what level of rigor. If we force the executive branch’s hand, we not only eliminate its discretionary abilities, but also remove an important restriction on the legislature’s power.

Removing some of the power vested in the executive is a definite problem with this solution. However, the end effect may still be positive for the population because it transfers the responsibility of checking the legislature from the executive branch to the people. When the rule makers are directly responsible for enforcement, the people will hold the legislature accountable for unacceptable laws because there is no intermediary.

Dangers of Creating Social Upheaval

Increasing law enforcement will undoubtedly upset the population. If this instigates an increase in disobedience to the laws of society by a disinterested public rather than a demand for more just laws, then the solution will be an inexcusable failure. However, it is not clear that this disobedient mindset is any more dangerous than what a “lenient” government creates by allowing its laws to be broken.

Allowing the population to disobey small laws may possibly satiate the “rebellious” nature within the grand majority of us. If this is the case, then such leniency may actually inspire more obedience to the larger, more serious, laws for the average law-abiding citizen. On the other hand, leniency in one area may trigger an individual’s belief in his/her ability to get away with more law breaking. This result triggers the same disobedience feared above from increased law enforcement.

Further behavioral and psychological research into this area will prove invaluable to promoting a better government. We must look at not only the social effects of different levels of enforcement, but also to the individual and neurological effects to have a consummative perspective from which we can begin to weigh the pros and cons of such policies.

Conclusion

Allowing laws to be broken is a subtle mechanism for a government to further restrict the liberties of its citizens. In order for the citizenry to constrain this power, it must have knowledge of the government's policies. The population can properly voice its agreement or dissent only with a practical understanding of the laws and their effects. While compulsive law enforcement may not be the perfect solution, it will create a better-informed populace, which is a significant step towards an improved form of government.

-- MattDavisRatner - 27 Mar 2008

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This paper seems to be bringing up more questions for me than I can do justice to, and I have therefore left many out of the discussion. In the end, I am not convinced that any one of these questions would not have been a more fruitful central issue, but it seemed worth a try.

Questions: 1) Does leniency in enforcement serve a beneficial role in helping the citizens connect with the executive branch of government? If the legislature is making the rule, but we see the police acting in a lenient way we support, does this create an us against them with only part of the government constituting the 'them'? Is this better than us against the entire government? 2) Are the mediums for public upheaval effective? Will protest/rebellion work? Should it be more of a referendum style? Populace should not be worried that complaint will cause the government to enforce it more stringently if it is already enforcing it to the fullest extent practicable, but this still begs the question of whether the dissent is effective. 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.