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.
Thus said Yale Law professor Stephen L. Carter. He is pictured above.
Does this mean there shouldn’t be laws? No. And Carter realizes that.
He goes on to say:
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.
I thought of this when reading co-blogger Bryan Caplan’s recent post titled “Escalation and Obedience.” Carter was making essentially the same point.
Here’s what I take from Professor Carter’s thinking. Think about all the laws and regulations you want. Then think about whether you want the government to be willing to kill people if those who disobey escalate their disobedience. (Bryan discussed government escalation and he’s right; but to put yourself at great risk of being killed by the government, you typically, although not always, have to be willing to escalate your disobedience.) Then ask yourself if that affects your thinking about any of the laws that you previously said you wanted. Laws that make gasoline cans almost useless? Laws that say you can’t have more than a certain volume of water per minute coming out of your shower head? Laws against using marijuana? Laws against growing marijuana?
READER COMMENTS
Rob Rawlings
Jan 5 2022 at 8:44pm
I think what is wrong with the laws you list at the end is not that they don’t justify the potential killing of violators who chose to escalate but that they shouldn’t be laws at all.
I can think of laws covering trivial seeming things that are justified – for example laws aimed at dog owners who fail to pick up their pet’s waste from the street. The fact that some set of extreme circumstances might lead to law enforcement killing a violator of this law does not prevent me from supporting it.
If a law protects a non-trivial property right or addresses a non-trivial negative externality it can be justified and if does neither it should not be a law at all. The implicit reality that any law that is to be enforced carries a potential deadly outcome for violators seems irrelevant to me as a factor as to deciding what laws should exist.
steve
Jan 5 2022 at 9:15pm
As a practical matter it seems like there are some laws that we have decided we wont commit violence to enforce. I have torn a lot of tags off my pillows, like a lot of other people, and am unaware of any police action using violence to enforce against doing that. OTOH, violence to enforce marijuana laws doesnt seem to require any escalation sometimes. I think this is a combination of which laws enforcers are willing to resort to violence but there is also the personality of the law enforcer. We have seen those people resort to violence over the enforcement of trivial laws when they have their authority challenged. I think that it is in trying to avoid the latter that you best make the case that we should minimize laws.
Steve
Andre
Jan 5 2022 at 11:22pm
It is not illegal for you to take a tag off a pillow you have bought. Shouldn’t this be something you automatically question? Why have you accepted this myth?
BC
Jan 6 2022 at 5:05am
I thought of this point when Eric Garner was killed in NYC for selling loose cigarettes. Of course, he was not sentenced to death as punishment for selling loose cigarettes. Rather, in the course of police officers trying to enforce the law, they killed him. So, even if one is not willing to (intentionally) kill to enforce a law, there is always some non-negligible risk that attempts to enforce the law will result in death or serious injury, as we have seen from the many publicized cases in recent years. We have also seen that attempts by non-law enforcement such as restaurant workers and flight attendants to enforce mask rules can lead to violent confrontation, endangering both the perpetrator and enforcer.
So, it would indeed seem to follow that outlawing an activity requires accepting the associated risk of death or serious injury, to both perpetrators and enforcers, as well as any other enforcement costs, including the risk of wrongful convictions. For some reason though, most people are like Carter’s students: psychologically uncomfortable with acknowledging this straightforward truth.
When thinking about whether government ought to do something, people often implicitly assume that government is run by omniscient and benevolent god(s) rather than by actual humans that operate with imperfect information, make mistakes, and pursue their own interests. Assuming perfect, risk free, and cost free law enforcement would seem to be another example of that fallacy.
AMT
Jan 6 2022 at 8:09am
There is an obvious difference between enforcing laws via sanctions and a “willingness to kill.” It hinges on this absurd hyperbole of what will happen “if he resists.” Law enforcement officers will not and cannot (legally) use lethal force on anyone who is not threatening their lives (or others). No one has, and ever will be killed solely for littering. If they are killed because they subsequently threaten the lives of law enforcement officers during an arrest, that is a separate and serious criminal act, for which police officers (and everyone), obviously may defend themselves. If an offender is not threatening the lives of police officers, then if they are killed, it is again, by a separate and criminal act of the police officers.
The question never has been and never will be about being “willing to kill” to enforce literally every law.
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