When everyone breaks the law, the law is broken

G — November 26, 2011

Reflecting recently on the polygamy case decision, it startles me how many laws are actually out there that don’t go enforced.  If a given act truly is a ‘crime’, shouldn’t then all acts of that type be prosecuted across the board?  In the recent polygamy ruling, this will likely not be the case.  People in polygamous relationships will likely not be affected at all by this ruling except for those in Bountiful, for which this ruling is specifically targeted.  I can say this with confidence because if harm to women or children were truly the issue, then those involved in harming women or children would be prosecuted now, without the need for this trial.  I am not advocating enforcement of violent laws, of course, but I am saying that if the crimes on the books were truly enforced consistently across the board based on the rationale and guise for which they are created, people would quickly see how authoritarian our laws have become and how selective and punitive they were in the past (aka ‘prosecutor discretion’).

Either it is a crime across the board based on the rationale for which it is created, or it is not.

To have a weapon for which to pick and choose a crime to fit those you wish to attack, that is not justice, that is totalitarianism.


Jeremy M says

Perhaps agents of the State just want to make each and every one of us lawbreakers…

Why is the speed limit 80 km/h on the Pat Bay highway when virtually everyone drives between 90 and 110? Chances are the government won’t pull you over for driving to the ferry at 85 km/h, but power-hungry police officers love to know that they can!

When agents of the State have a massive body of law at their disposal, and discretion as to when and how it is enforced, we end up with arbitrary force; the rule of one man over another, rather than the rule of principles of natural justice that apply equally to all.

— November 26, 2011

G. says

I am of another opinion with your speed limit example. Rather, an ‘is’ does not make an ‘ought’. Perhaps a better question would be – why is there a uniform speed limit at all? Why not find out the supposed rationale behind the law, in this case, unsafe driving and reduction of accident risk, and go after that specifically. Then you might have a case where dependent on weather, car type, car tire type, driver history, etc., you have a very specific indicator of what is safe driving speed and what is not a safe driving speed – with insurance as a mechanism to manage risk.

— November 26, 2011

Jeremy M says

Good point, and I certainly wouldn’t say that a universal speed limit is a principle of natural justice. :-) There are lots of other factors (aside from speed) which contribute or detract from safe driving, and any rule or regulation that exists should take into account all of these factors in an objective, predictable, and above all *reasonable* manner.

The key to natural justice is the ability to rationally justify why somebody is charged with an offence, compare it with similar cases, and demonstrate some reasonable framework for what is and is not an offence. This should, in theory, allow citizens to know whether or not their behaviour is acceptable *before* the fact.

Proprietorial discretion removes this requirement, as justice is left to the whim of another human actor, who is unpredictable, and whose motives are no less suspect than the offender himself.

This kind of power tends to attract unpredictable people with suspect motives, and police and prosecutors charge who they want to charge, based on their own subjective ideas as to what is right and wrong.

This is why the rule of one person’s will over another is always arbitrary and unethical. The rule of a universal principle over all people will only work insofar as that principle is consistent and rational.

— November 26, 2011

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