An Undiscussed Legal Rule

     We’ve talked about “the rule of law” here on several occasions. I’ve taken pains to point out implications of that principle that others – some deliberately – tend to miss. But there’s an aspect of it that I don’t think I’ve covered, though it could hardly be more significant.

     A law that cannot be enforced, as I’ve written on other occasions, weakens respect for the law in general. This is a badly neglected bit of wisdom. The law books of our nation are heavy with unenforceable laws. Many were passed by legislators who were fully aware that they could not be enforced – or worse, that their enforcement would require the enforcers to break even higher laws (e.g., provisions of the Constitution). Yet there they are. Seldom has any politician admitted those laws’ destructive character.

     But two questions arise here:

  1. What does it mean for “respect for the law in general” to diminish?
  2. What makes a law unenforceable?

     The first of those questions pertains to the effect called moral hazard. An unenforceable law, especially one attached to criminal penalties, creates an opportunity for persons to profit from their willingness to risk detection and capture. This is especially important in discussing laws that outlaw widely disapproved behavior, such as recreational drug use and prostitution. When a law makes it profitable to provide outlawed goods or services, that possibility immediately appears, as do persons willing to gamble on not being caught. Organized crime has grown fat on such opportunities.

     When the law-abiding see lawbreakers grow rich from their lawbreaking, the disincentives for the law-abiding:

  1. To remain within the law;
  2. To teach respect for the law to their progeny;

     …rises in proportion to the perceived advantages that accrue to the lawbreakers. While many succeed in resisting those pressures, significant numbers of persons do not. Some of those who succumb will be law enforcers, with all that implies. Their example will corrupt some fraction of their colleagues. Meanwhile, the merchants of the disapproved will continue to “rake it in.” Few will face the penalties the law has established.

     What ultimately suffers is the concept of the law as an organizing and civilizing mechanism, a necessary one that deserves respect and adherence.

     The second question has more than one answer. As I suggested above, a law whose enforcement requires the violation of higher laws, such as the protections for individuals’ rights enshrined in the Constitution, is unenforceable for that reason. It endangers the whole structure of law. But a law can appear to conform with those protections and still be unenforceable.

     The key is the detectability of offenses.

     What cannot be detected cannot be outlawed. That can include an offense alleged by others, for under the rules of evidence, testimony about something someone else has done does not preclude reasonable doubt. There could be many reasons for Smith to lie about what he has seen Jones do, or not do. Were such testimony to be accepted uncritically, Clarence Thomas and Brett Kavanaugh would not have attained their seats on the Supreme Court.

     This goes to the heart of one of the most painful questions we in the Right face today: whether it is possible to outlaw abortion at all phases of gestation without incurring still worse consequences.

     Many pro-life campaigners would argue that outlawing abortion at all phases would be worth doing even if it were to prove unenforceable. It would “send a message.” But the consequences for respect for the law, plus the implications for the privacy of the doctor-patient relationship, would be grave. During the earliest weeks of pregnancy, only the woman is aware of the embryo inside her. Moreover, she can request services nominally pertinent to abortion for reasons other than pregnancy. The “D&C” – dilation and curettage – is performed not solely to abort an earliest-stage pregnancy but also to remedy certain menstrual problems.

     How is such an abortion to be detected? Wouldn’t it require a violation of the woman’s and doctor’s Fourth and Fifth Amendment rights? Would accusations and testimony by third parties be admissible in such cases? If so, what would happen to the presumption of innocence?

     Earliest-stage abortion isn’t the only case of this kind. Consider an allegation that Smith murdered Jones by “pissing him off:” angering him into a fatal heart attack. Consider an allegation that Jones trespassed upon Davis’s land without leaving any trace of his passage. Consider an allegation that Davis replaced Green’s heirloom with an identical copy, thus depriving Green of its collectible, historical, or sentimental value. There are others, but those will do for a start.

     Legislators prefer not to consider such questions. They tend to concentrate on maximizing the “mob appeal” of their proposals while deflecting questions about enforceability. But enough damage to respect for the law, and enough money and power have flowed to the willingly criminal, to make such considerations imperative. A legislator or candidate willing to confront questions about enforceability and answer them candidly is worthy of note.


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    • johnson j on April 19, 2022 at 8:35 AM

    The phrase “rule of law” has always struck me as odd because what country doesn’t have laws?  But it seems they use it in the context of foreign policy. “Rule of law” means allowing the US to invade your country and change your laws to be globohomo.  It has nothing to do with actual law.  During the Ukraine thing, whatever it is, they have talen to referring to countries on the US’s side as “rule of law countries.” So “rule of law” just means globohomom

    1. In point of fact, there is no country that obeys the rule of law as it was conceived: i.e., that the law binds all persons, regardless of their identities, attainments, or heritages. America was once greatly different. No longer.

    • avraham on April 19, 2022 at 10:37 AM

    “Rule of law” I think is shorthand for England where there is this long standing tradition of listening to pieces of paper [or parchment] like the Magna Carta and the Provisions of Oxford.  I mean to say that countries that derive from England tend to take the law as written very seriously.  In most other countries without English influence, the laws are laws as long as they are convenient.

    • Daniel K Day on April 19, 2022 at 12:53 PM

    “Their example will corrupt some fraction of their colleagues.”
    Your sentence was discussing corruption of the law-enforcers, but it reminded me of a valuable point made IIRC by Mark Steyn. He was describing the deterioration of commonly held concepts of morality in terms of providing welfare to a woman with a child whose father has abandoned it and its mother. Most of the acquaintances of the woman may well be determined to avoid the indignity of her situation, but a few will be tempted to varying degrees by the availability of “free money”, especially if discouragement from doing so is decried as arrogant and “judgemental”. If one of them succumbs to the temptation, this puts more pressure on the others. Thus, corruption does not happen to everyone at once, it creeps in from the edges.

    1. Yes, that’s a clear case of moral hazard produced by a well-meaning law. That law creates perverse incentives of at least two kinds. In fact, it’s been cited as a participating influence in the dissolution of a number of marriages.

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