When it comes to the Law, the old saying, “Be careful what you wish for. You may receive it.”, should be given the greatest possible credence. All too frequently I hear people make the comment “that should be illegal” and every time I cringe. Yes, often it is said purely in jest, but way too frequently it is said in earnest, and even when said in jest, it betrays a sad truth about us as humans: as a general rule, we have a basic misunderstanding of the full implications of the law. So let me state my belief about this up front as clearly and concisely as I possibly can. Immoral should not equal illegal. In fact, for the most part, moral beliefs based upon religious doctrine should have little, if any, influence on the actual legal code. My reason for holding this opinion is simple. Outlawing something should be an extreme action only taken to control activities that have extreme consequences to society. My reasons for feeling this way are legion, but for the sake of brevity, I will focus on only the most important.
First, it is important to establish a few basic facts about law. Law is intended to be the means by which societies establish the boundaries within which all citizens of that society are expected to operate. In this country, but not in all, law is, in theory, viewed as a means for establishing boundaries meant to ensure “fair treatment” by all citizens, both in interactions with other citizens and interactions with the state. Pursuant to this goal, the law is divided into two magisteria: civil and criminal.
Civil law, for the most part, deals with contracts. In short, the basic principle upon which civil law is founded is the principle of “tell the truth” when dealing with other people. The consequences of violating a civil law are financial, rather than physical, so you can’t “go to jail” for breaking a contract. In civil court, there are always two parties representing each side of a dispute. The state generally is not directly involved in either side of civil cases.
Criminal law, on the other hand, deals with behavior deemed deleterious to society. As such, the state always takes an active role in “prosecuting” the accused perpetrator and the consequences can range from financial, in the form of a fine, to incarceration, to death. The upshot of this is that criminal law is a very serious matter. Any time you give the state the right to use physical force in dealing with persons, citizen or not, you run the risk of society itself sanctioning the state to irrevocably violate the liberty and even life of anyone unfortunate enough to be wrongly convicted. In recent years, this right of the state has even been extended to allow forcible seizure of property of persons that have been convicted of absolutely nothing. (Our founding fathers would be aghast that we would ever even consider allowing such folly.)
The bottom line is that the authority of the state in criminal matters is enforced by the barrel of a gun. This is not wrong. It is necessary, but it does have some serious implications. Any time force comes into play, the stakes go up for every citizen. The consequences to innocent citizens of mistakes made by law enforcement officers in attempting to enforce criminal law range anywhere from frightening encounters all the way to death. Griven the well documented propensity for mistaken enforcement and conviction, the opportunity for grievous error is fairly high. Those are some pretty high stakes indeed.
I point this out, not to imply that criminal law should be abolished. No indeed. Criminal law is absolutely necessary. I point this out simply to make it clear that coding criminal law should not be approached lightly. Unfortunately, most “modern” criminal law is based upon notions formed long before the advent of modern democracy and is often founded more upon notions of morality than legality, and therein lies the problem.
For much of human history, societies based their laws upon moral codes tied more to the predominant religion than to the needs of the state. Consequently, many things coded into our criminal law were never really debated from the perspective of there being a compelling case from the point of view of the state.
A good example of this in the United States is the whole concept of state enforced monogamy / monandry. A strong case can be made that the state not only has no vested interest in this matter, but that it would actually be advantageous for the state to avoid intervening in this issue. France, for instance, does not recognize “marriage” in its legal code at all. They, instead, recognize “civil unions” of which marriage is just one such example. There are several advantages to the state in taking this stance, not the least of which is that it moves the whole question of civil union law out of the criminal court and into the civil court where it belongs. Additionally, this would avoid the whole issue of the state “defining” marriage, thus removing any conflict with religious teaching on this topic.
We claim to have separation of church and state in our country, but in actuality, we are far from it. This puts us, as a society, in the role of “religious police”. Another way of looking at this is that our state is willing to kill you if you dare follow the marriage rules of any religion other than mainline Christianity.
I know what some of you are thinking about that statement. You are indignantly scoffing about how inaccurate that statement is. After all, we don’t allow the death penalty for bigamy. Granted, the penal code does not specify death for that offense, but just you try and stand up for your right to practice marriage according to your own religious beliefs (or lack thereof). If you resist hard enough, you will most certainly end up dead.
Another example of laws based more on arbitrary rules of morality than on a compelling need of the state is our “war on drugs.” Before you start cursing me as some druggie trying to justify myself, know that I have never, not even one time in my entire life, used any illegal substance. (Well, okay, technically my sip of a wine at a wedding while under-aged would qualify as using an illegal substance, but it was with my parent’s consent, so sue me.) Further, I absolutely abhor narcotics. I have seen the toll they take on those that fall prey to addiction and it is my most fervent prayer that we can somehow find a way to convince every human being of the need to remain free from such a doom.
That stated, the “war on drugs” waged by this country is one of the biggest boondoggles ever to come down the pike. This has to rank as one of the greatest money wasting endeavors ever devised by humankind. Study after study has shown that our efforts at stopping drug traffic has had no effect whatsoever on the rate of drug usage by our citizens. What’s worse is that criminalizing narcotics may have actually hampered efforts to treat addiction since many that are addicted avoid treatment out of fear that they will be prosecuted. The only people who benefit from drug prohibition are those that grow and distribute the drugs. It has made them rich beyond reason. And don’t get me started on the toll this drug war has had on countless legions of innocent that have been caught in the crossfire of the drug lords. (It drives me insane that most Americans care so little about the lives lost in other countries to our idiotic “war” simply because “they aren’t Americans.” Ugh!)
For those of you that believe the party line that decriminalizing “illegal drugs” will condone their usage and lead to a massive spike in drug abuse, I refer you to the experience of Portugal, which decriminalized drugs years ago. All the fear mongers were dead wrong. There was no epidemic of disaster sweeping through the impressionable youth as they swarmed to addict themselves.
But not in the good ol’ U.S. of A. No sir! We’ll keep spending over $15 billion+ per year on a program that has no positive results and a whole boatload of negative ones. After all, it’s much easier to get votes by playing to fears than it is to take the risk of attempting to take the lead on such an emotionally charged issue. Besides, without the convenience of drug laws, how are we to rid our streets of “undesirables”. It’s so much easier to invent a reason to throw people away than it is to find ways to help them. Never mind that the cost of warehousing almost 1.2 million drug offenders in prison is a staggering $24 billion+ per year on top of the above stated costs. So as you can clearly see, the “war on drugs” is definitely not based upon the best interests of the state.
I could provide numerous other examples of laws based upon factors that actually work against the interests of the state, but I hope by now you can see that law is a double-edged sword that can both defend and offend. Unfortunately, politicians make their living by manipulating voters into believing that their lives, the lives of their families, and the very life of the nation hinge upon granting ever greater power to the government which, of course, means passing new laws.
We are like the proverbial frog, being slowly, but surely, boiled by the very politicians that claim to represent us. You might wonder how this could be. After all, why would those wonderful, patriotic servants of the people choose to steadily strip us of our liberties?
That’s a very good question. I’ll give you a hint so you can think it over. In the movie “All the President’s Men” the character of Deep Throat, played by Hal Holbrook, famously advised Bob Woodward, played by Robert Redford, to “follow the money” in order to decipher the players in the Watergate scandal. That’s very good advice for us all. Bear in mind another phrase as well: “money is power”. If you want to know why we are in such a mess, follow the money – follow the power.
In the mean time, think twice before wishing for any new laws. After all, you just might get your wish.