Awful truth #15: A society cannot criminalize or otherwise regulate everything under the sun.
“Laws are spider webs through which the big flies pass and the little ones get caught.”
Honoré de Balzac
“The purpose of laws is to define the lowest form of acceptable behavior between people, but ethics are the higher standard…”
Harry Markopolos
“The more laws, the more offenders.”
Thomas Fuller
Yes, we need laws—but let’s not go crazy about it
Boy, do we have lots of laws in the United States. Jurisdictions of every type and size pass them, from the leviathan-sized federal government down to small irrigation districts. Rarely do they rescind them. There are far too many laws, and far too many of these are written obtusely. No person on Earth could possibly know them all. In fact, lawyers typically specialize in a specific field of law, such as solid waste regulations. Yes, that indeed is a specialty, though I don’t envision a television legal drama based on it.
A law is by its nature a restriction of one’s personal freedom. This restriction is implemented in order to protect people and their property from the actions (or inactions) of others. I can’t kill someone—at least without a compelling reason. I can’t take someone’s else’s possessions, no matter how much I might want too. I can’t traipse onto private property if the owner doesn’t want me there. I can’t own a slave. I can’t prepare food in a restaurant unless I keep my hands clean. I can’t silence someone just because I don’t like what the person says.
These examples involve restrictions on acts a decent person would not commit, even if he or she were given impunity to do so. A decent person returns a found wallet. A thief picks the wallet out of his victim’s pocket. A decent person does not enter private property uninvited. A trespasser enters where he is neither invited nor wanted. A decent person realizes freedom of speech includes offensive speech. Alas, we are plagued with childish tyrants who want to silence those they disagree with. We certainly have restrictions or requirements decent people find silly or abhorrent—I doubt handwashing requirements is one of these.
How did we find ourselves awash in laws? It is reasonable to hypothesize that long ago, as mankind first organized itself into clans or tribes, people recognized we must cede some of our individual freedom for what we believe is the greater good. This concept has carried forward into modern times, though along the way the concept of “greater good” has been nefariously misused to justify every manner of oppression and atrocity. Stalin, Hitler, Mao, and Pol Pot are examples of those who excused their evil on it being for the greater good. In their twisted minds, their actions weren’t evil.
Don’t be fooled into believing these infamous evildoers are historical relics of “less enlightened times.” We have our modern evildoers behaving terribly in furtherance of what they claim is the greater good. We see this in today’s version of the Inquisition, those insufferable “greater-gooders” who are obsessed with crushing heretical words and thoughts for the purpose, they claim, of ensuring all our salvations, believer and nonbeliever alike. Evildoers always insist they are not, well, evildoers…and are thrilled to swiftly punish you if you insist otherwise. Today’s evildoers are smug and gleeful when meting out enforced silence to those who dare challenge the ascendent narrative around Covid, transgender ideology, or global warming. What they foolishly fail to see is that an opinion different from one’s own is not necessarily evil, but silencing a different opinion is always evil. Always.
It is a most delicate balancing act, this trade-off between individual freedom and a collective greater good—and making certain that the “greater good” is indeed good. Without significant individual freedom, we cannot live our best lives or have lives worth living. Not perfect lives. Perfection is the goal of madmen and tyrants. Yet without some degree of collectivism in the form of infrastructure and limits on personal behavior, our society cannot function, be that group effort a public sewer system or freeway speed limits. A functioning society needs laws, particularly those that protect life, property, and basic human rights. These laws must be well-written and understandable. These laws must be fair and practical. These laws must be enforced. These laws must be enforced equally, regardless of a person’s wealth or status.
But there are limits. Oh yes, there are indeed limits to how far we should go with our lawmaking, with our restrictions on individual freedoms, with our collectivism. Paracelsus, the father of toxicology, recognized that the dose is what makes something a poison. A vitamin essential for health can become toxic at an excessive dose. Too much “for the greater good” is indeed bad if taken too far. We can have too many laws and of the wrong sort: laws that are micromanagey overreach or unnecessarily intrusive; laws that are enacted in furtherance of harmful ideologies or which contravene basic human rights; laws that selectively benefit our betters at the expense of the hoi polloi.
Totalitarianism is the result of too many laws and of the wrong sort. We may at first find ourselves subjected to a pipsqueak totalitarianism that inconveniences and infantilizes its citizens. Perhaps we shrug our shoulders in quiet exasperation at the inanity of it. We ask ourselves if it’s worth “fighting city hall” over a ban on plastic straws or that we have to show identification to purchase certain over-the-counter medications (in which case, OTC is an oxymoron). Decent, law-abiding citizens go to work and raise families. They make the world function and are too busy, too tired to make a ruckus against pipsqueak tyranny and its fascism-by-a-thousand-inanities. Laws targeting decent people are easy to implement because such people are law-abiding and, hence, often victims of their own decency.
The ability to overly regulate is a powerful drug for the regulators, especially if we elect lawmakers who are sanctimonious fools. It’s a drug which requires stronger and stronger doses in order to achieve the same high. Petty regulations are often a gateway drug leading to a more deleterious addiction. Therefore, we eventually face the very real risk of full-blown oppression that impoverishes, strangles innovation and enterprise, and crushes dissent and spirit. In other words, if we are to avoid tyranny, we must accept that we have laws for some things but not for everything, that we have a tolerable level of imperfection in both ourselves and larger society rather than the tyrant’s vision of utopia; otherwise, the number of laws enacted grows precipitously (always in a supposed quest for utopia), passes the point of diminishing—if not outright harmful—returns, and then totalitarianism results. Always results.
At its essence, the purpose of a law is to prohibit or compel. We are prohibited from committing murder. We are compelled to pay taxes. Not obeying a law can result in punishment, and because of this a wise society includes sufficient due process in order to protect the rights of both the victim and the accused. Punishment may include incarceration, which deprives someone of his or her liberty, perhaps for life. Though incarceration may be deemed necessary and an appropriate punishment for a crime, we must understand that depriving a person of liberty cannot be taken lightly, thus the need for due process…but not undue due process.
Due process in a modern society isn’t cheap. Neither is punishment for criminal acts. In the United States, we spend huge amounts of money each year on our criminal justice systems at the local, state, and federal levels—this is in addition to the large amount of spending done to adjudicate civil matters. This massive criminal and civil justice infrastructure requires a lot of lawyers (well over one million!), many of whom could be better utilized elsewhere in our economy—if only we had fewer crimes and lawsuits.
I sympathize with folks who argue we perhaps have too many people in prison, including for crimes that should be decriminalized. Of course, many of these same folks who aver a wish to lower the prison population would then fill our empty prison cells with their sort of criminals (e.g., accurate-genderers, mean tweeters, climate realists), thereby proving it’s not that the prisons are too crowded, it’s that these are not populated by those who commit the acts they want criminalized. This is not hyperbole. There are indeed among us maniacal fascists who would gladly jail the pronoun rebel and other infidels.
Perhaps the desire to lord over others is innate and immutable, as is the desire to mete out punishment. An empty jail cell is a vacuum, and like any other vacuum it is filled, regardless of who is in power. There is an incarceration-industrial complex dependent upon it. There is also a sanctimony-industrial complex hellbent on punishment for trivialities they’ve elevated to matters of state. Madmen are currently ascendent in many jurisdictions, and they unduly influence many of our societal institutions, including the lawmaking apparatuses therein. Therefore, we add to the soup these madmen’s fascist obsession to lord over others in micromanagey ways and punish heretics who don’t think like they want them to think, and you can see that shrinking our prison population faces serious headwinds. A category 5 hurricane’s worth.
I also sympathize with folks who believe there are criminals roaming the streets and causing harm who should be in jail. These are criminals who commit crimes which decent people overwhelming agree should be punished (e.g., assault, shoplifting, open drug use, rioting, looting, public urination, vagrancy). I include vagrancy among these examples but only if the vagrant does not suffer from mental illness or is not a person who sincerely wants to work but is merely down on his or her luck. An able-bodied homeless person, of reasonably sound mind, who refuses homeless services should be subject to vagrancy laws—or, at the very least, to other laws if broken. Society is not obligated to indulge the hobo lifestyle for those who can work but refuse to do so. The most important of a society’s collective efforts is that adults of working age be gainfully employed, whether this be the result of central planning or via the miracle of a free market economy.
Though many criminals are in jail, there are scoundrels who aren’t imprisoned. The reason many jail-worthy criminals are not in jail is because of district attorneys and other elected officials whose pro-criminal agenda has created dystopian cityscapes in which are trapped millions of good people who cry out for law and order. These cries go largely ignored. These malignant officials are hellbent on proving to those who want a reasonable level of law and order that these wishes are unenlightened, bigoted even. C’mon, man, looting is one thing, excused as the understandable culmination of centuries of systemic racism, but the audacity of using a plastic straw is quite something else, altogether. That looting is clearly harmful, while the use of a plastic straw is a matter of the utmost nothingness, is irrelevant to the mad ideologues who’ve gained ascendancy over us. Yes, they really are that demented.
These malfeasant district attorneys have yet to fully achieve their goals. Millions of our fellows are incarcerated. Perhaps we have so many people in jail because America is cursed with more wrongdoers than other countries, both on a proportional and absolute basis. We reportedly have more people in prison in absolute numbers than does China, a country with approximately four times our population. Unlike China, we are a nonhomogeneous, free-wheeling society—at least for a while longer—and this provides more opportunity for conflict and misdeeds. There are those fascist killjoys among us who intend to forcibly implement stultifying homogeneity on the populace (in word, thought, and deed) and fully crush the free-wheeling aspect of our American culture. And yet, I envision the prison population shall expand, not shrink.
When sin becomes law
A law is essentially a secular sin. A sin codified and bureaucratized into modern formality. A sin subject to secular punishment (incarceration or monetary penalties). A law and sin may overlap; the government’s lawyers converting the word of God into obtuse legalese. The prohibition against murder is the classic example. We also have laws which no sane god would cotton, mandates of comically unjustified self-importance. I’m not aware of any holy text in which a deity decreed: “Thou shall not use plastic grocery bags.”
As humans formed groups of clan size or larger, it is easy to imagine they readily understood that certain personal misbehaviors were highly disruptive and threatened a group’s survival. Murder is an obvious disrupter. So is adultery, especially if committed among a small group who are dependent on each other for sustenance and protection. How to prevent harmful behaviors became an imperative.
These nascent aggregations of people also developed religion. Religion was a convenient platform in which to formalize prohibitions against harmful behaviors they called sins. The concept of right and wrong was born, and this is literally the bedrock on which human civilization rests. We don’t know if the desire to prevent misbehavior led to the creation of religion as a means of enforcement or if a religion recognized the disruptive threats to a tribe’s cohesiveness, and, therefore, included the concept of sin among its broader theology. Regardless of which came first, sin or religion, religions established expected behaviors—and consequences for noncompliance.
Thus, sin and illegal activity are cousins; sometimes distant cousins, sometimes kissing cousins, sometimes more closely related. A sin that morphs into a secular law is best tolerated by a society if it is a law that both a believer and nonbeliever agree is warranted and are willing to obey. A rational person realizes that without laws, reasonable ones and in reasonable amounts, you cannot establish or maintain a civilization. Laws provide the social infrastructure, along with customs and basic good manners, which allows complete strangers to interact with each other with what is hoped is an acceptable degree of predictability, safety, and due process. Good laws, which are obeyed by most people, are necessary if we are to get along with each other tolerably well and hopefully prosper as a result. Absent this, chaos results. And it ain’t a good chaos.
Laws are often based on what are specific religious tenets regarding personal behavior. The Judeo-Christian religions gave rise to many of the laws found in Western countries. The Ten Commandments in the Bible were foundational in this regard: Thou shall not kill…Thou shall not steal…Thou shall not commit adultery…Thou shall remember the Sabbath day and keep it holy…etc.
A religion’s tenets proscribe certain behaviors and mandate others. The Holy Bible actually contains more than ten commandments, the total number depending on various interpretations and the resultant prevailing mores. Some (seemingly) clearly stated sins are more nuanced depending on the context in which the “sin” occurs. Thou shalt not kill seems definitive…except when a society argues other principles contained in its holy texts allow for some wiggle room. For example, the faithful may believe the Christian scripture authorizes the death penalty based on the principle of “an eye for an eye.” Exemptions are also carved out for killing someone in self-defense or killing an enemy during a time of war. The jawbone of an ass was, after all, wielded by Samson to murderous effect. David’s sling killed Goliath. (Ecclesiastes 3:1-8 is useful for justifying tons of wiggle room!)
A failure to comply with a religion’s code of conduct is typically considered a transgression deserving of punishment or, at the very least, requisite shame and atonement. The threat of a deity’s wrath is a useful, albeit imperfect, deterrent. Though judgment and subsequent punishment may as yet be meted out by one’s god, here on Earth or in the afterlife, governments eventually took on the responsibility regarding laws, that of enactor, adjudicator, and punisher for noncompliance, whether these are laws divinely or secularly derived.
Over time, both sins and laws became memorialized: written down in holy texts, books of regulations, on stone tablets. Were stone tablets still used to record our laws, we’d have long ago stripped the world’s quarries of all their etchable material. Such is progress, or so we think. Eventually, as our standard of living improved—and fewer people were necessary for farming and other basic needs—we graduated from laws adjudicated by priests or a council of tribal elders, and punishments that might include banishment or a recitation of Hail Marys, to the “luxury” of huge bureaucracies of law enforcement, courts, and prisons (and lots of laws and lawyers!).
A religion may deem certain acts or omissions to be sins, and these failings may prevent a person from reaching its version of paradise or perhaps result in eternal damnation in an unpleasant place. Other behaviors may result in less dire consequences but still run afoul of religious doctrine. The key societal transition occurred when the prohibition against committing an act deemed by a religion to be a sin became formalized as a secular law and enforced for believers and nonbelievers alike, and the responsibility for enforcement rested with the government rather than a religious body.
Typically, the dominant religion of a society determined which of its sins were promulgated as secular laws. In many cases a nonbeliever agrees with the necessity of these laws because the harmful effect of a particular crime is easily recognized. A rational atheist concurs that murder and theft are crimes worthy of prohibition and punishment. In other cases, a nonbeliever might think a law is silly. The intrepid non-Muslims living in Saudi Arabia are not allowed to import pork and a Christian Bible can only be brought in for personal use. The nitpicky Saudi authorities serve as a cautionary tale, one surely ignored by our own mirthless Puritans: Striving for perfection results in oppression. Forcibly saving another person’s soul results in the loss of one’s own. Always.
When considering a religious sin as a candidate for a law, it is a wise secular society which embraces the following principle: Just because an error or omission is deemed a sin by a religion doesn’t mean society as a whole should make it a law to be applied universally and enforced using the government’s (our collective) resources. This is particularly true if a legal prohibition against the sin would conflict with human rights—or seem silly, intrusive, or oppressive to nonbelievers. Jews who follow their religion’s dietary laws don’t eat lobster. To my knowledge, the Jews have never asked lawmakers to pass a secular law banning the consumption of this delicacy.
There is certainly a huge challenge in following this principle, particularly when religious fanaticism is involved. Fanaticism in this case is a pernicious condition where the fanatic is far more concerned with forcibly changing the behavior of nonbelievers than he is with setting an example by his own personal conduct. In fact, it’s the forcing part he loves so much. What is silliness to a nonbeliever may be taken seriously as hell by the fanatic. Especially a Woke or Muslim fanatic.
Fanatical religions don’t like other people bad-mouthing their beliefs (i.e., blasphemy). Theocratic or theocratic-leaning countries have explicit laws against sacrilege—some Western countries have capitulated to this nonsense, as well. It is easy to identify an oppressive religion which pays homage to an irrationally wrathful god: Its adherents want blasphemy ruthlessly punished (e.g., Muslims, transfascists, global warmists, Branch Covidians). A free society does not criminalize speech or thought. The basic human right of freedom of speech means that when making laws we disregard any religious tenets against blasphemy. In a truly free society, the right to blaspheme is an inviolate imperative. The existence of a blasphemer is the “canary in the coal mine” who proves we are free to speak and think as we wish. Protect this canary with your very life!
I love free speech—and so should everyone who values his or her own freedom. I also love pork. I don’t want pork banned on religious grounds, though the vegan zealots would gladly do so (radical veganism is another fanatical cult/religion). I think it’s weird for a man to wear a dress, but I wouldn’t in most circumstances want this made illegal, particularly if the person—weirdness notwithstanding—is an honest and productive member of society who allows other folks their eccentricities. But the basic human right of freedom of speech and expression allows me to think it’s weird or disapprove of it—and say so without repercussion; therefore, no law should be made to silence me—or silence you, whether you agree or disagree with me.
Here is a list of things that religions may consider a sin or otherwise frown upon:
- Murder
- Theft
- Lying
- Adultery
- Premarital sex
- Birth control
- Masturbation
- Alcohol
- Gambling
- Usury
- Heresy
- Blasphemy
- Apostasy
- Miscegenation (interracial marriage)
- Smoking
- Caffeine
- Abortion
- Blood transfusions or other medical care
- Eating pork
- Eating meat
- Gluttony
- Envy
- Lust
- Immodesty
- Homosexuality
- Graven images
- Using the Lord’s name in vain
- Not keeping the Sabbath holy
There is a basic question to ask ourselves when looking over this list, either as a believer or nonbeliever, and considering whether we want to make any of these into a secular law: Do we really want to put someone in jail for noncompliance—even if we believe it a sin or otherwise undesirable behavior? Do not ask this question lightly. Give it real thought before committing to criminalizing any error or omission.
Formal prohibitions in the form of laws against some of these sins exist today (e.g., murder). For some of these sins, we once had laws, perhaps unenforced, but eventually these laws were rescinded or overturned by the courts (e.g., homosexuality, adultery). I’m not aware of any person in history who was arrested for masturbation done in private, but we do not allow it to occur in public (indecent exposure), though I suspect a soft-on-crime district attorney is unlikely to prosecute this carnal exhibitionism.
Not all sins are formally illegal. Not everything formally illegal is a sin. The law in California requires a landfill keep daily records of the amount of waste received. I doubt God would prevent an otherwise pious landfill operator from Paradise merely because of noncompliant record-keeping, unless the “give unto Caesar what is Caesar’s” passage in the Bible were taken damn seriously.
A society—or some members of it—may frown upon errors or omissions that are not illegal, and it’s okay for people to have such an opinion. Differing opinions keep the world an interesting place. Insisting on uniformity regarding opinions is fascism. Though we may today scoff at the concept of criminalizing adultery, thousands of years ago it was recognized that such a “sin” was highly disruptive to small tribes. Modern sensibilities may no longer criminalize adultery, but infidelity is a betrayal and deserving of disapproval. We’ve decided it would be an overreach to put philanderers in jail—and incur the cost of doing so. Likewise, it would be silly to jail someone for worshiping an idol or working on the Sabbath day. The Taliban take the graven image prohibition to an extreme level of fanaticism: they prohibit store mannequins (boy, that Allah is a persnickety cuss). There are jurisdictions in America which still have “blue laws” on the books that require stores to close on Sundays.
There are religions that consider homosexuality a sin. In some countries laws against it are indeed on the books and ruthlessly enforced, as was once the case in Western countries. It is okay if a person disapproves of homosexuality for religious or other reasons, just as it’s okay to disapprove of other things which may be legal in some jurisdictions, such as gambling, alcohol, or usury. Disapproval does not necessarily mean the sin must transform into a law. Disapproval does not mean a law must be implemented to punish the disapprover for disapproving. The goal regarding speech and thought is not to insist on a miserable sameness.
There is a generally accepted (by sane people) rule of thumb as to the degree of invasiveness a law should have; namely, what consenting adults do in private is their own business and does not require government intervention. It is particularly important to embrace this concept because in the age of ubiquitous cameras, social media, and seemingly unlimited digital storage capacity, our sins are readily found out, and we are currently plagued by a host of shrill Puritans (i.e., the Woke) who are eager to drag sinners to the stake and burn transgressions from impure souls. Among these sanctimonious fools, there is no sin too silly to warrant the sinner’s personal destruction. These modern-day Puritans are a joyless amalgam of the Inquisition, Salem Witch Trials, and 1950s Red Scare. They are just as evil as their ideological forebears. Yes, evil.
Keyhole laws are ill-advised. These only serve the prurience of busybodies and gossips. Public drunkenness is a crime, while private drunkenness is the sot’s own business. The couple married to others who meet in a motel for their tryst should be of no concern to the government, though it’s certainly okay if you want to condemn it—and you should be able to do so without repercussions. If this same couple decide to recklessly engage in open fornication in a public park, that’s another matter—they’re then making it everyone else’s business. Premarital sex among consenting adults likewise does not require formal prohibitions, though some religions certainly disapprove of it. Amazingly, the modern Puritans agree that adultery and premarital sex are not matters of concern for the government—unless the fornicator “misgenders” someone, and then they want the power of the state used to destroy the miscreant.
The government’s involvement in sexual matters, regardless of whether these matters occur in private, is reasonably limited to include the establishment and enforcement of an age of consent and consent in general. This is intended to protect children and vulnerable adults. The age of consent should be reasonable (e.g., not less than sixteen, nor more than eighteen years of age). An absence of consent should also include complicating factors such as a person with diminished mental capacity, regardless of the person’s age. Sex by force, deception, or coercion is not consensual. These are factors to consider when investigating accusations of rape or statutory rape.
We must be forever vigilant if we want to remain a secular society. Theocracies are never pleasant places in which to live one’s life. I suspect this is even true for a theocracy’s most fanatical adherents. Our modern-day Puritans practice their own perverted version of Wahhabism—with the same degree of mirthlessness as does an unsmiling imam standing next to a pile of stones.
Our society once considered free speech a valuable right. Not anymore. These Puritans want to supplant secular democracies with their brutal theocracy. They consider heresy, blasphemy, and apostacy to be serious crimes—and want the perpetrators pitilessly punished. They want sinners demonetized, deplatformed, fired from their jobs, expelled from schools. They want therapists prohibited from helping gender-confused minors accept their actual gender (in some states, this is now legally prohibited). They want misgendering—which is accurate-gendering—punished with fines and jail time. They want to extirpate what they consider misinformation, as well as any debate of what they deem “settled-science.” Today’s technology affords them powerful weapons for surveillance and retribution. And they intend to surveil and retribute like hell. Do not let them.
Today’s obsession with censorship is poisonous snake oil sold as enlightenment and compassion. Do not fall for this lie. It’s censorship on behalf of an evil cult. Censorship is always intended to hide truth and exercise control. Censorship is always evil. Do not allow the codification of censorship. Also do not give into the temptation of uncodified punishments in lieu of formal censorship.
Modern sins as decreed by elected gods
Our elected leaders love to pass laws. This is their self-metric for determining “success,” whether the law is necessary, wanted by the citizenry, or actually enforced. See, we’re doing something! We passed a law! Unfortunately, there is little follow-up to determine if the laws are enforced or if these end up making the world a better place. Of course, we must be cautious because their idea of a “better place” might differ markedly from that of a sane person.
A better metric by which to measure our politicians is to consider good managers a worthy lot, including those who evaluate a situation and determine no new law is necessary or an existing law needs to be rescinded or modified. A good use of their time would be to go through all existing laws, one by one, and see if we need these. Such a cleanup is long overdue.
Some laws are noncontroversial in the sense that there is general agreement as to their need. A law against carjacking is one example. Some laws are begrudgingly accepted. We complain about taxes—and are likely to continue to do so—but not many of us would cotton a complete elimination of taxes when the consequences of doing so are soberly considered. The issue concerning taxes, and which is by no means a simple or noncontentious one, is the tax rates to implement and to what spending, earnings, existing wealth, or increases in wealth these are applied. There is also the fact that our government spends far more than it collects in revenue, so an adult budgeting has yet to be seen and won’t be seen until it’s too late. We’d experience a life-altering shock if taxes were commensurate with our spending, including our unfunded liabilities.
Some laws are an overreach that unfairly inconveniences decent citizens rather than those wrongdoers who commit crimes worthy of punishment. An example of this is banning plastic straws because these might end up in a sea turtle’s nose or contribute to global warming (yes, both these assertions were made by the law’s proponents). This law fails a critical test for validity: Most people think it’s insane to jail someone for not complying with a plastic straw ban; were this not true, stop reading now because we as a society are D-O-N-E. Instead of a straw ban, we should punish those who litter or otherwise improperly dispose of straws. That is where the focus should be.
There are also laws with widespread opposition, and it only through the arrogance of our elected leaders that these exist—the purported reason that these unwanted laws are “for our own good” rings hollow because the government exists to serve its people, not the other way around. Such arrogance infantilizes us. But one could argue that if the voters keep electing people imbued with such arrogance, it’s ultimately our fault, and we deserve these leaders despite our subsequent protestations. Many Californians, perhaps a majority, do not support a ban on gas cars, gas water heaters, gas stoves, and other modern conveniences. Yet, our elected and unelected folks are hellbent on giving us these bans—good and hard (as H.L. Mencken might say).
Considerations when creating or repealing laws
When thinking about whether a new law should be enacted or an existing one modified or repealed, there are important considerations to keep in mind. Here’s my two cents on what these are:
(1) Be wary of criminalizing acts or omissions that do not cause direct harm to another person or society at large, either physical harm or a loss of property. The unlawful error or omission should result in direct and demonstrable harm to others. By “harm” I mean in the corporeal sense to a person or property, not to feelings. By “direct and demonstrable” I mean the act or omission is incontrovertibly the cause.
There is the danger of overreach when we drift from regulating acts that clearly result in direct harm (e.g., murder, theft) to acts that pose a risk of harm. The risk may be real, overblown, or nonexistent. A real risk may be far less than one hundred percent but deemed an unacceptable one by society, while a risk far more likely to cause harm may be ignored. This doesn’t mean you ignore the risk or don’t implement reasonable laws in regard to it, but we must accept that not every risk should be addressed via a criminal or civil statute. In a free society there are risks for which there are no prohibitions. A completely risk-free society is not paradise, it is the ultimate prison.
Some risks are obvious, and if addressed in a sensible manner, do not violate basic human rights. A driver who causes a car accident which results in harm should be held accountable, the punishment commensurate with the resultant degree of harm. The cause of the accident may be recklessness (e.g., excessive speed) or impairment by drugs or alcohol. Society may reasonably attempt to mitigate these causative factors.
Laws against speeding and driving drunk are generally accepted. Not every speeder causes an accident, but the risk of an accident is increased. We establish speed limits and these are enforced. Not every drunk driver gets into a car wreck. In fact, most drunk drivers somehow make it home safely—at least that time. Yet it is obvious that driving under the influence of alcohol impairs one’s ability to drive safely and thus poses a risk to other drivers. Related to this are laws which set maximum blood alcohol limit (BAL) for drivers. Exceed this limit and the driver is deemed to have committed a crime by posing an unacceptable risk to others.
As a practical matter the BAL is not set for individual drivers based on their personal tolerances to alcohol. The same BAL applies to all drivers, hopefully with a margin of safety built into the standard. A margin of safety in any law or standard is ultimately an arbitrary quantity. If the heaviest truck that crosses a bridge weighs 100,000 pounds, it is not advisable that the bridge collapse if one weighting 100,001 pounds happens to cross it. The bridge is wisely designed to handle a much higher load, and this load includes an additional margin of safety. Similarly, if the lowest BAL found to impair driving is a certain value, a margin of safety is warranted, and the legal standard set slightly lower than this.
A foodservice worker not washing his or hands poses a risk of disease transmission. Even if no disease is transferred, dirty hands transmit filth to the food, and that is something diners find unacceptable, regardless of whether it makes them ill. It would be amazing—and not in a good way—to hear a person contend he has a human right to prepare someone else’s food with dirty hands. It can also be argued that food prepared under unsanitary conditions is a consumer fraud issue, since this is contradictory to what the customer believes he is paying for (i.e., food prepared in a sanitary manner). Consumer fraud is a direct harm.
The key to regulations is that these be reasonable and implementable. Prohibiting all travel by private motor vehicles in order to prevent drunk driving would contravene the basic human right to travel freely. Cutting off the hands of foodservice workers in order to eliminate the risk of unclean hands is likewise an insane overreach. Though I fear neither approach is beyond the lunatics we have making laws nowadays.
(2) There is a preference for prohibiting acts that harm others rather than oneself. We often say, “If a person wants to do something stupid which only hurts himself, that’s his business,” though we don’t always mean it.
There is, though, a rub: When people harm themselves there is typically a financial cost borne by the rest of us. For example, we pay increased taxes or healthcare premiums because of the fools among us. Nevertheless, in a free society adults are given tremendous leeway to do stupid things which result in harm to themselves. This leeway is not absolute. There are harmful things we’ve either made illegal or subjected to regulations to prevent or mitigate potential harm. Certain food additives are illegal. It is illegal for a bodybuilder to use steroids. Steroids are heavily regulated and can only be used under the care of a doctor and for specific medical purposes. We prohibit helmet-less motorcycle riding and require the use of seatbelts in cars. Should we require people driving cars to wear both seatbelts and crash helmets?
In some cases, we must ask ourselves the following question: At what point do we as a society surrender on regulating an error omission which we believe directly harms a person, but the choice to engage in the behavior is made by a consenting adult thusly harmed? We’ve fought a long and fabulously expensive “war on drugs.” We lost this war. The abuse of illegal and legal drugs is widespread.
As with any war, if there is to be a lasting peace, the vanquished must accept their defeat and move on from it. Therefore, it is long overdue that we consider a decriminalization of drug use. This doesn’t mean we as a society condone it. It merely means we don’t put someone in jail solely for drug use or possession. Do I think drug use is dumb and ill-advised? Yes. Does it cause harm to the drug abuser? Yes. Might an addiction lead someone to commit criminal behavior? Yes. But I suggest that a drug user should only go to jail if a direct crime is committed against someone else or society at large (e.g., public drug use, stealing to support a habit).
(3) Be wary of criminalizing behavior one or more “degrees” removed from what a reasonable person would consider a punishable act. A law should be tied to a specific deleterious act and not somehow linked to something several degrees removed from it.
The farther removed we drift from a directly harmful error or omission, the more problematic the effort at regulation. Consider the choices of punishing someone whose reckless driving results in an accident vs. banning driving drunk which might result in an accident vs. banning a movie that glorifies drinking because it might lead to excessive drinking and, hence, could result in drunk driving (e.g., one of my favorite movies: Animal House) vs. banning all movies in order to eliminate the risk that one of these which encourages drinking might be produced. Is that enough, you ask? Heck, in the pre-digital age, the manufacture of movie film could’ve been banned, just to make sure.
Alcohol is heavily regulated due to the long history of societal problems related to abuse. But society must decide how far we travel upstream with our regulatory efforts. Many states prohibit bartenders from serving obviously intoxicated patrons. Public intoxication is a crime. Sales of alcohol to minors is unlawful. The legal drinking age in most states is twenty-one years old. These restrictions seem tolerable to most of us.
But…should we require that bartenders administer a breathalyzer test to every patron prior to serving every drink? No. Should we prohibit private intoxication? No. Should we raise the legal drinking age to forty years old? No. There is only so much we can do. And banning the movie Animal House would violate the human right to free speech, an action that would result in severe negative consequences far beyond any concerns regarding drunkenness. Yes, free speech is that important…seriously.
That rap music or violent video games might influence youth into criminal behavior is irrelevant. Criminalizing rap music as a preventative measure punishes those who are not unduly influenced—and violates freedom of speech, as well. If a rap music fan commits an actual crime, this is where society’s focus should be, not upstream at alleged contributory factors.
Keep in mind that going after alleged contributory factors is an excuse that fascists weaponize for use against their enemies. Everything as they see fit is deemed a contributory factor, no matter how ludicrous and contrived the linkage. These overreaches lead to absurdities, such the claim that speech in the form of indecorous words or undesirable opinions is considered “violence” by overly delicate fools. Don’t fall into the trap of passively giving up your freedoms under the ruse it’s for your own good or might result in harm. Don’t allow our leaders to infantilize adults. Don’t’ criminalize the exercising of your constitutional rights. I know this is hard to accept, but we too often take an approach toward crime as depicted in the movie Minority Report, i.e., convicting people of “precrimes” because of what might happen.
(4) Do not unreasonably inconvenience honest people, especially if it’s because of the lack of political will to go after actual lawbreakers. Another way to put it: Don’t make criminals of decent people.
A law should not punish or inconvenience law-abiding citizens because of the actions of a few bad apples. Our elected leaders love to pass laws that criminals won’t obey, and which instead inconveniences honest people or deprives them of their rights. The person using plastic straws and who properly throws them away should not be made a criminal by the prohibition of plastic straws because our so-called leaders are unwilling to punish litterers. If our leaders won’t punish a direct act, they shouldn’t punish an indirect one they believe is related to it.
(5) A law must not violate basic human rights regardless of possible harm that might be prevented. There are costs to human rights. Both to obtain the rights in the first place, and then to preserve them. Some of these costs are significant, e.g., the right to democratically elect our leaders poses the risk of electing morons to office.
Two important human rights are the right to protect oneself and speak one’s mind. Gun are dangerous things and can cause grievous harm if misused. Words can hurt feelings, sometimes deeply. Yet we must recognize and accept that the two most powerful weapons against tyranny, and which we presently possess in America, are the right to bear arms and freedom of speech. An armed citizenry that is free to speak its mind is unconquerable.
Both these rights are under relentless assault. There are fascists among us who want us disarmed and silenced—for our own good, they smugly insist. Once this is accomplished you shall lose your other rights, as well. Scoff at this notion at your own risk. Our betters have big plans for us peasants, and you aren’t going to like it if these come to pass. They want absolute, technologically facilitated control over us. They think they know better than we do how to live our lives. They want fewer of us—far fewer. These odious goals can only lead to a most terrible dystopia, and it is to this dystopia that we are currently headed.
The best way to fight our betters is to be a responsible gun owner and defend the freedom of speech of those you disagree with. Insist someone who uses a gun in the commission of a crime be severely punished. And absolutely do not give up the right to protect yourself and speak your mind, no matter the cost of doing so.
Another human right is the right to privacy. Related to this is another war we’ve lost: the one waged against the world’s oldest profession. Many men give in to their sexual urges and seek professional solace in prostitutes—and shall continue to do so. This doesn’t mean we as a society condone it. Though it may be an affront to our sensibilities, we should consider if it’s really in society’s best interest to put someone in jail solely for prostitution which occurs in private. Do I wish a prostitute would find a more honorable means of employment? Yes. Would I want my daughter to work as a prostitute? No. Would I engage the services of a prostitute under certain circumstances? No comment.
I suggest that prostitution only be punished if a direct crime is committed against someone else or society at large (e.g., robbing a john). A john should only go to jail if, for example, he hires a minor for sex. When two people are in the privacy of a hotel room and having sex, it is not our collective business to care whether it’s for the exchange of money or the result of a nice dinner and a movie—if they’re both consenting adults. On the other hand, coerced prostitution should be a crime and whoever is doing the coercion severely punished.
A credible public health argument can be made that prostitution poses a risk of disease transmission. But the same risk applies to non-monetary based couplings among the promiscuous amateurs, and yet we’ve long given up on criminalizing premarital sex between consenting adults. We do not have to fully disregard the sexually transmitted disease concerns. Though the practicality of implementation is questionable, make it unlawful for a prostitute, john, or other person to engage in unprotected sex if he or she is currently infectious with an STD.
(6) Make sure the resources exist to enforce the law.
The best law in the world is meaningless if we don’t have the money to enforce it. Don’t enact laws, no matter how desirable these may be, if the resources don’t exist to enforce it. I retired from a local environmental health program. We struggled to fulfill our extensive regulatory duties (e.g., restaurant inspections), and yet new programs were regularly added with little consideration as to how these could be implemented based on realistic staffing levels. (We were given the embarrassing duty of enforcing the ban on plastic straws, among other similarly insane statutes. Admittedly, the law is more nuanced than I’ve described here, but is still a dumb law. See California Assembly Bill 1884 for details.)
(7) A law must be enforced.
Enforcement means investigation, arrest, prosecution, and punishment. Laws come with penalties for noncompliance (the punishment)—otherwise, these are not enforceable. The penalties are typically incarceration or monetary fines. Even if the penalties are only monetary, there must be a mechanism to collect the money or punish a person for nonpayment, and this may escalate to the point where jail time is imposed.
Yeah, enforcing a law is an adult undertaking when taken seriously. Thus, it’s important for adults to be in charge of our institutions, including the lawmaking and criminal justice systems. Too often, adults are missing-in- action. In some jurisdictions shoplifters know they can steal with impunity. Pity the victimized stores and citizens who live with the results.
(8) Apply the reasonable person test.
We certainly have laws decent people find silly or abhorrent. Do not elevate trivial matters to a matter of government intervention. Do not manufacture or overstate a risk of harm in order to do so. Ask yourself, “Would a reasonable person think this law is a good idea?” Many laws in California fail this test, and yet we get more of these laws each legislative season.
(9) We may frown upon it or consider it a sin, but that doesn’t mean we should make it illegal.
Just because a religion considers it a sin doesn’t mean the larger society must enact a law.
(10) Do not criminalize thought or abstractions—this means no hate crime statutes.
The government does not belong in our heads or hearts. Do not enact laws against supposed speechcrimes or thoughtcrimes. Period. So-called “hateful” utterances or writings are only relevant in the context of premeditation, in cases where premeditation is a consideration in relation to guilt or sentencing for a corporeal crime.
As an example, disturbing the peace by screaming in a public place is a punishable crime regardless of what is being said. The content of what is being said is irrelevant unless it’s a credible threat of direct violence. The content must not elevate the seriousness of the crime just because it’s speech that someone (or perhaps most people) doesn’t like. Another way to think about it: Decibel level is what matters, not content.
(11) A law may require a disregard of cultural or religious sensibilities.
Some cultural practices are odious and shock the sensibilities of good people—many folks in that same culture are probably shocked, but they’re too afraid to speak out against it. This includes female genital mutilation and child marriage. Good people want laws prohibiting these practices, cultural differences be damned.
(12) Science is not the be-all-end-all determining factor.
Scientific evidence is one of many factors that may be involved when considering a law. It may or may not be the deciding factor. Do not blindly accept something as correct or good just because such a claim is made by a scientist. Scientists are not necessarily free of bias, political agendas, or incompetence. If a scientist somehow proved that slavery is the best labor system or that human sacrifices prevented global warming, a moral society would still reject these notions as public policy (I hope).
Be wary of claims of “settled-science” or “public health emergencies.” These terms have been weaponized by fascists to instill fear in the populace in order to implement bad laws. It’s easy to spot a fascist scientist: He’s the one who wants to silence dissent and control the hell out of others.
A true scientist does not shy away from debate. Ongoing debate is what advances science. So-called “science” that doesn’t cotton dissent is no longer science; it is instead a dogmatic religion. One that intends a brutal Inquisition
(13) If the enactors of a law themselves fail to adhere to it, then everyone else is no longer required to abide by it.
Oh, our insufferable betters love to pass laws that crush us, but they themselves do not follow. Our betters are global warming hypocrites as evident by their private jets and mega-yachts. They are Covid hypocrites as evident by their having been regularly found in violation of their own public health orders during the Covid panic. Members of Congress are not subject to the same insider trading laws which would result in jail time for anyone else.
Such galling hypocrisy when found out, should result in an immediate repudiation of the law—and throwing out of office the offending scoundrel.
(14) Sleep on it before enacting a law.
Lastly, if you’ve found an error or omission you believe is worthy of criminalization, sleep on it, and the next morning ask again yourself the following question before proceeding: Do I really want to fine or incarcerate someone for this? Bottom line: If you’re not willing to jail someone for the error or omission (i.e., stand in front of a jail cell and see the person behind bars), then don’t criminalize said error or omission. (Remember that failing to pay a fine may also result in jail time if the fine isn’t paid.). Better yet, make that “someone” in jail a friend or loved one, and ask yourself the same question.
Final thoughts
So, where does this leave us?
We expect our government to protect us and our property. Laws are necessary to do this. The laws are the “software” by which our criminal justice system’s “hardware” operates. The hardware is comprised of law enforcement agencies, courts, and prisons. Seems simple, but it isn’t. We must take a step back, and as good citizens give the matter a heavy dose of sober thought. We decide what laws we want and then commit ourselves to enforce these. But sensible people realize there must are limits to how far we should go.
We must accept that we can’t codify everything under the sun, nor should we try. It is a fool’s errand to think we can make everything we don’t like illegal or require everything we want done actually get done. We must accept a large degree of imperfection in ourselves and larger society. It is wiser to have fewer laws but better ones; demonstrably impactful laws rather than picky-ass ones; an acceptance of risks, some quite serious, rather than attempt the folly of a risk-free society by fiat.
Basic human rights dictate the existence of some laws and prohibit the implementation of others. Regarding the latter: Fight to the bitter end against those who would criminalize thought and speech. Do not cotton the notion of thoughtcrime or speechcrime and that these are transgressions to be punished.
Do not allow lawmakers to infantilize us for the greater good. Banning plastic grocery bags to prevent global warming (yes, that was one reason given) is dumb. If you actually care about reducing man-made carbon dioxide, without destroying the world’s economy and impoverishing billions of people, you’d demand nuclear power plants be built. Lots of them. Nuclear power is an adult thing. Banning plastic bags is the work of children.
Be honest regarding penalties. Stop the kabuki theater of life without parole unless it’s actually life without parole. If the intent is to truly keep someone in prison for life, then that person should not have parole hearings. Parole hearings under such circumstances keep the crime forever tormenting the victim’s families, who every few years must fight against the prisoner’s release. When a person sentenced to life without parole becomes old or infirm, the prison must be prepared to house and humanely care for him or her accordingly. The fact the prisoner might pose no further harm due to age or infirmity is irrelevant.
Once someone has served his or her sentence, clear the slate and restore all rights and responsibilities. There should be no post-release conditions or monitoring. For example, no restrictions on voting, gun ownership, or career choices. If the person’s crime is such that he can never be trusted again in polite society (e.g., child molesters), then the penalty for that crime should be life without parole. I’m not arguing a molester should work at a daycare center. I’m saying if there is a risk of a molester reoffending, the person should never be released.
Stop the race-baiting nonsense. If there is a racial component to a crime statistic, that doesn’t necessarily mean racism is involved. Black communities don’t want criminals left in their midst just because the perpetrator “looks like them.” The White Woke who love to ceaselessly play the race card don’t have to face the consequences of their moronic pro-criminal ideology that puts non-White folks disproportionately at risk. Dear White Woke morons: People of all races want criminals in jail.
Finally, just because it’s legal doesn’t make it moral. Just because it’s illegal doesn’t make it a sin. Be a good person whether or not it’s required by law. Leave some sins for God to sort out at the Pearly Gates. The fewer people in jail the better, as long as they aren’t causing direct harm to people or property and are productive members of society.
Be First to Comment