Everything Is Now Illegal
Stossel writes at reason that complex societies call for simple laws:
"If you have 10,000 regulations," Winston Churchill said, "you destroy all respect for law."He was right. But Churchill never imagined a government that would add 10,000 year after year. That's what we have in America. We have 160,000 pages of rules from the feds alone. States and localities have probably doubled that. We have so many rules that legal specialists can't keep up. Criminal lawyers call the rules "incomprehensible." They are. They are also "uncountable." Congress has created so many criminal offenses that the American Bar Association says it would be futile to even attempt to estimate the total.
So what do the politicians and bureaucrats of the permanent government do? They pass more rules.
That's not good. It paralyzes life.
...When so much is illegal, common sense dies. Out of fear of breaking rules, people stop innovating, trying, helping.
Think I exaggerate? Consider what happened in Britain, a country even more rule-bound than America. A man had an epileptic seizure and fell into a shallow pond. Rescue workers might have saved him, but they wouldn't enter the 3-foot-deep pond. Why? Because "safety" rules passed after rescuers drowned in a river now prohibited "emergency workers" from entering water above their ankles. Only 30 minutes later, when rescue workers with "stage 2 training" arrived, did they enter the water, discover that the man was dead and carry him to the approved inflatable medical tent. Twenty other cops, firemen and "rescuers" stood next to the pond and watched.
The ancient Chinese philosopher Lao Tzu, sometimes called the first libertarian thinker, said, "The more artificial taboos and restrictions there are in the world, the more the people are impoverished....The more that laws and regulations are given prominence, the more thieves and robbers there will be."
And the more of them there will be in government.
See also Three Felonies a Day, by Harvey Silverglate, the story of how citizens from all walks of life—doctors, accountants, businessmen, political activists, and others—have found themselves the targets of federal prosecutions, despite sensibly believing that they did nothing wrong, broke no laws, and harmed not a single person. From the perspective of both a legal practitioner who has represented the wrongfully-accused, and of a legal observer who has written about these trends for the past four decades, Three Felonies a Day brings home how individual liberty is threatened by zealous crusades from the Department of Justice. Even the most intelligent and informed citizen (including lawyers and judges, for that matter) cannot predict with any reasonable assurance whether a wide range of seemingly ordinary activities might be regarded by federal prosecutors as felonies.
jerry at March 16, 2012 12:20 AM
Congress has created so many criminal offenses that the American Bar Association says it would be futile to even attempt to estimate the total.
Before we allow these charlie foxtrots to pass another criminal statute, they should first enumerate the current number of criminal offenses. Same for the state and local legislative bodies.
If ignorance of the law is not a valid defense, then the laws should be simple enough to be known and understood by those not lawyers. If any given law does not meet that criteria, it should be ditched.
Why yes, I am in favor of jury nullification. what gave it way?
I R A Darth Aggie at March 16, 2012 8:27 AM
All government policies are "zero tolerance". The rules are created and everyone must follow them. This comes from the fallacy that there is a perfect written rule in the universe for all administrative situations. It is only a matter of adding to the rules, including more situations and exceptions, over a long time, until the 1,000 page rule covers everything.
If you let people use their judgment, then what have you got? Something, but not a Government of the Social Welfare.
In the meantime many cases will be handled badly, even horribly. Oh, well. A few eggs have to be broken when you are making an omelette out of the millions. (sarcasm)
Classificationism
=== ===
[edited] But we have a system now dominated by legislation, by statutory law. The Roman law was codified legislatively by Napoleon and others, resulting at first in elegant civil codes enacted by legislation and backed by the force of the state. This enshrined legislation as the supreme source of legal positivism. These are the continental legal systems, the so-called civil law.
In the meantime even the relatively elegant civil codes have been swamped by a deluge of inelegant, artificial, and special interest legislation. The English common law has also been gradually submerged in a flood of state and federal statutes.
In any particular case at common law, what is the true rule? It is the rule most in accord with justice and sound policy. The search is for that rule. The appeal is squarely made to the highest considerations of morality and justice. These are the rallying points of the struggle, which is ennobling and beneficial to the advocates, to the judges, to the parties, to the auditors, and so indirectly to the whole community. The decision then made records another step in the advance of human reason towards that perfection after which it forever aspires.
But, when the law is conceded to be written down in a statute, the only question is what the statute means. This search is unspeakably inferior to common law. The dispute is about words. The question of what is right or wrong, just or unjust, is irrelevant and out of place. The only question is what has been written. What a wretched substitue for the manly search for the right principle!
=== ===
Andrew_M_Garland at March 16, 2012 9:56 AM
This is why I have become a supporter of Jury Nullification. The concept is basically that juries can refuse to convict somebody regardless of what the law says. If I am on a jury I will no longer participate in the conviction of a person that is being prosecuted for violating an unconstitutional law. Which most federal criminal statutes are.
The other problem with this mass of crimes is disproportionality in sentences politically incorrect crimes result in more severe sentences than crimes of violence.
Another problem that has been mentioned before is the increasing number of crimes which require no criminal intent. Originally our criminal justice system punished the criminal intent, not the act. For example the sentence for intending to steal a car would theoretically be the same as actually stealing the car. Because proving criminal intent beyond a reasonable doubt can be difficult we see more statutes where the act is all that has to be proven. For example, if it is a crime to kill a bald eagle the simple act of unwittingly running over a bald eagle can be prosecuted as if you really intended to kill it.
Like so much of our govt this is out of control.
Bill O Rights at March 16, 2012 1:13 PM
Leave a comment