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
Mark Z
Jan 5 2022 at 6:35pm
One thing I gleaned from Bryan’s post and the comments is that one can reduce the likelihood of violent conflict with the law – and add a facade of voluntariness – to a law by outsourcing enforcement to private businesses. Make businesses fire unvaccinated workers or kick out unmasked customers, and people may be less likely to resist to the point where they get shot than if you actually have mask/vaccine police patrolling everywhere.
This sounds good, and perhaps is in some circumstances, but it probably increases the range of coercion that is available to the state. It’d be politically easier, I think, to pass a law requiring social media and telecommunications companies to censor people than it would be to censor them directly, in part because fewer people would be dogged enough to resist enough steps along the way to where they could actually clash with armed authorities than if there were actual speech police knocking on their doors to directly enforce violations of speech law. This may be good for people prone to such resistance, as they’d be less likely to end up losing their lives in defiance, but maybe bad for society, since people’s willingness to lose their lives in defiance of unjust laws is part of the cost politicians face for imposing them.
David Henderson
Jan 6 2022 at 10:30am
Good point. So then the “getting shot” thing doesn’t apply to the employee but to the employer.
Mark Z
Jan 6 2022 at 11:49am
Right, and I suspect fewer employers will be less likely to get themselves shot. I also think the more steps there are between violation and violent resistance, the less likely it is to occur (e.g., if you break the law, you pay a fine; if you don’t pay the fine, you pay a bigger fine, and so on until after the 10th fine do armed police show up at your door, one is much more likely to give up and just pay the fine at some point rather than risk confrontation than one is if the police immediately show up after you violate the original law).
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.
Jens
Jan 6 2022 at 1:10am
Correct. The idea behind law is that they can be enforced. But there is a clear, predictable, iterative path of escalation. It’s not arbitrary. (That escalation can come more quickly if a participant takes a faster, unpredictable path of escalation or behaves like a monkey does not contradict this.)
A second important point is the material content of law and its proportionality. Law means facts and legal consequence.
Whether one believes it is right that the amount of water in one’s shower should be limited or that one is responsible for the excrement of one’s pets, if there were a legal norm that directly attached the death penalty to a violation of these norms, most would consider that legal norm to be disproportionate (at least as long as one does not live on Arrakis) and therefore inherently invalid. But that is a different problem.
And, of course, what always applies is that the right must be created and, if necessary, abolished again in a publicly recognized, constitutionally justified procedure. But that, too, is another problem.
The fascinating thing about law is that you can theoretically make something like the amount of water in the shower or the responsibility for the excrement of the pet a general, enforceable norm. That’s a feature, not a bug.
Mark Z
Jan 6 2022 at 12:11pm
Thinking through the path of resistance that leads to dire consequences might, though, help elucidate whether a law is good, because it crystallizes the morality of defiance of the law. Consider, for example, a black person who uses a whites only public facility during the Jim Crow era or a Jew who refuses to nominally convert to Catholicism in the face of Spain’s auto de fe; they refuse all polite demands to comply with the law, or to pay the fines, and eventually get violently arrested or shot.
On the other hand, consider a person who persistently refuses to pick up his dog poop on someone else’s property, ending in violent confrontation. One certainly could say, “all of these situations are basically similar; sure, the laws weren’t equally unjust, but the burdens they imposed were all minor, and the violators were similarly irresponsibly to escalate.” But I don’t think that’s the obviously right interpretation. I think many would view the first two examples as heroes, and the last one as just irresponsible. The morality of the escalation, in short, does seem to reflect something about the underlying justice of the laws, even laws with fairly minor stakes, according to common moral intuition (admittedly, one can probably think of laws that everyone thinks are unjust, but no one would sympathize with someone who defies them to the point of being arrest; I may have just cherry-picked examples that carry a lot of emotional significance to people).
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?
Gene
Jan 6 2022 at 11:30am
Yes, I believe what’s illegal is for a retailer to tear the tags off of the furniture before selling it.
Andre
Jan 7 2022 at 9:10am
“Yes, I believe what’s illegal is for a retailer to tear the tags off of the furniture before selling it.”
Correct.
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.
David Henderson
Jan 6 2022 at 10:32am
Stephen Carter explicitly made the link to the Eric Garner situation in the passage I quoted. I left it out because I wanted to focus more generally.
Jens
Jan 6 2022 at 10:56am
Of course, when enforcing rules, consideration should be given to individuals who are frightened or insecure. Sometimes rules are simply not understood correctly. Imagine someone risking his life to defend his right to remove the tags from his pillows. Sometime enforcement is not qualified or professional.
But an intensive risk assessment with regard to the will to disobey would ultimately lead to a situation where groups that signal and announce resistance and extremely risky behavior with regard to certain rules can take unpopular proposals off the table just by doing so.
To some extent, this is currently seen in Corona protests in Europe, where protest groups tour through small towns, usually with the same bus tour operators, simulating broad resistance that does not exist at all, but which is conjured up. In this case, it seems that the violators have not been made aware enough of *their* risk of violating the rules.
Craig
Jan 8 2022 at 8:08pm
Just a point of clarification here, Garner wasn’t actually selling ‘loose’ cigarettes (the term loose suggests to me he was selling individual cigarettes) he was selling cigarettes not taxed by NY. At one point in time cigarettes sold in SC did not carry a stamp of any sort. Its believed that SC did this to even encourage interstate sales of cigarettes sold in SC to be resold elsewhere where the tax was much higher. It was well known for people to buy cigarettes in bulk in SC and bring them up to NY where they would be sold typically by the pack out of backpacks. Garner’s actions of physically selling cigarettes wasn’t in and of itself illegal (though its possible to sell cigarettes in NY one might need a license), but selling them without paying the stamp tax? Yes, that was unlawful tax evasion.
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.
Jon Murphy
Jan 6 2022 at 9:47am
They will and do legally all the time. That’s the issue with Qualified Immunity
AMT
Jan 6 2022 at 6:39pm
Qualified immunity only applies to civil suits, not criminal. And the fact that officers are frequently not prosecuted for crimes they commit because of other corrupt officers and prosecutors does not mean they are acting lawfully.
Jon Murphy
Jan 6 2022 at 8:26pm
True. Irrelevant.
Indeed. Thus my objection to your comment: “Law enforcement officers will not…”
As you just said, they will. That’s the part of the point.
But, on a larger scale, the whole discussion of whether or not a killing is justified is wholly irrelevant to the point Carter is making. The point is: killings will happen (even by accident). Thus, when passing legislation, we must be sure that it is something we are willing to allow people to die for.
AMT
Jan 7 2022 at 8:17pm
Lol, funny you decide to bring up irrelevant points! Obviously we can see you had no idea, since you said they were acting “legally.” If you commit a crime, you are not acting “legally.”
Yes. And the point I made was that these types of killings for trivial laws are exceptionally rare (so it is an absurd hyperbole). Further, if we would simply enforce our own laws consistently and deter police criminality, we could probably round down to zero the number of people who are killed for tiny things like littering or jaywalking. So when we get to the crux of the issue: “ask yourself if that affects your thinking about any of the laws that you previously said you wanted,” it becomes completely irrelevant to consider. Can you name any trivial laws you don’t think we should have, because too many people will violently attack the police and be killed? I say there are zero. I’m not saying all laws are optimal, but the idea that we are “willing to kill” to enforce every single law (“Behind every exercise of law”) (which necessarily includes the trivial ones, which is why I’m focusing on them) is incredibly statistically ignorant. And no, zero police officers have ever had their hand slip off the pen while writing a traffic ticket, down onto their holstered gun, unhooked it and brought it up, then pulled the trigger while aiming at someone.
Jon Murphy
Jan 8 2022 at 9:14am
It’s not clear to me what you’re trying to say here, so I am just going to ignore all this and move on.
You started by saying the number is 0, and now you’re just saying it’s low. That’s good; you’re moving in the right direction. The point I have been making, that Carter and others are making, is that the number is not 0. When legislation is passed, it is supported by the enforcement mechanisms, which include violence against the individual. Consequently, we must be careful about legislation passed and people will die for it.
Yes. If we assume away all the evidence against your argument, then your argument holds. But if men were angels, we wouldn’t need police.
Off the top of my head (and in no particular order): most drug legislation, most alcohol sales regulation, most gambling regulation, most COVID regulation, most customs regulations, plastic bag bans, menthol cigarette bans. There are more.
Fat tails are a thing. People will take lots of actions to prevent relatively small suboptimal outcomes. Indeed, there’s a whole industry that’s sprung up around this: insurance.
In any stats course, one will learn the concept of “expected results.” Basically, you take the probability of an event occurring and multiply it by the results to determine the expected results of the action. To take a common example, a lottery: There is a lottery where the grand prize is $100. The lottery is constructed in such a way so that there is a 10% chance of winning. The expected winnings for the lottery are thus 100*.1, or $10. Thus, one would be willing to spend up to $10 on a ticket.
If we scale those numbers up, the willingness-to-spend to get the winnings (or, in the case of insurance, avoid the losses) increase. Consequently, even relatively rare events can cause an individual to pay (in absolute terms) high dollars to avoid.
The tl;dr version: what you call “statistically ignorant” is actually what folks learn in most statistics and economics courses.
AMT
Jan 8 2022 at 9:28am
Now just cite your sources for the number of people killed by police because of these laws. Except ignore drug legislation, because I asked for trivial laws.
robc
Jan 8 2022 at 3:33pm
Your definition of trivial is circular. Drug use should be trivial, the problem is it isnt.
AMT
Jan 8 2022 at 6:48pm
Rob, trivial punishments like a small fine. Many drug charges are felonies with the potential for significant jail time. Those are not at all trivial. We won’t be too surprised when someone facing 20 years in prison violently resists police to try to escape punishment, which is completely different from a 20 dollar fine for littering.
I am quite exciting to hear about these plastic bag martyrs.
nobody.really
Jan 6 2022 at 12:05pm
1: Last month we had a discussion about whether pirate contracts contained their own enforcement mechanisms. I averred that they did not: Enforcement would derive not from a contract, but from application of force by someone interpreting the contract. This post seems to affirm my perspective.
2: Libertarianism relies on contract between willing parties–but, as clarified here, contract ultimately depends upon enforcement against no-longer-willing parties. I try to bear this in mind when discussing the distinctions between libertarianism and other political theories.
David Seltzer
Jan 6 2022 at 6:45pm
I think there is a trade-off element to this. At what point does one decide it’s better to comply than having a SWAT team enforce a court order? Courts can avoid using police force by garnishing wages, liens and imposing levies on the non-cooperating person’s assets.
Scott Sumner
Jan 7 2022 at 2:14pm
I prefer a different approach. How would you feel if a family member were caught up in this law? I have no trouble with a family member paying a fine for a parking violation or going to jail for robbing a bank. I would not want a family member to have to pay a fine for not wearing a mask, or go to jail for selling pot or engaging in prostitution.
David Seltzer
Jan 7 2022 at 4:54pm
“I would not want a family member to have to pay a fine for not wearing a mask, or go to jail for selling pot or engaging in prostitution” Nor would I. Anthony de Jasay tells us that the state, hence it’s laws, is whoever runs it. I suspect a more libertarian administration than the current one would would not fine or jail people for selling pot or engaging in sex work. de Jasay thinks the state is unnecessary and laws that protect liberty can exist in the absence of the state. How do we achieve any semblance of that ideal? As of June 2021, weed is legal in 18 states but not in federal precincts. Sex workers are employed in Nevada. Why not everywhere?
nobody.really
Jan 10 2022 at 12:09pm
I strongly suspect they are–or, pretty close to everywhere.
Peter Gerdes
Jan 8 2022 at 2:05am
While I agree with the general sentiment when one is talking about laws which govern essentially private behavior I don’t think it works when you start talking about masks on airplane flights or other regulations of behavior with public consequences.
I mean, if you don’t have a law which decides the issue one way or another the fact that not wearing a mask impacts others means that absent the a rule you’ll likely have individuals attempting to use social pressure or even physical threats to protect themselves from what they see as an unreasonable imposition of risk and those conflicts can easily escalate to violence as well.
So while this violence consideration may weight against laws about private drug use when it comes to defining the appropriate norm for public behavior that impacts others it’s not so clear.
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