Enforceable and Unenforceable

There are two kinds of laws: the enforceable and the unenforceable.

The first kind encompasses most noncontroversial crimes such as murder, rape, theft, and so forth. These laws were designed to be enforced to the maximum degree reasonably possible. In a perfect world, all murderers would go to jail. Of course, this is an unrealistic goal, but few of us would disagree that the hypothetical imprisonment of all murderers would be a good thing.

Then there are those laws which could never be enforced consistently.

Take the drinking age: if the police were somehow able to arrest the millions of young people under the age of 21 who have consumed alcohol, many of whom are otherwise perfectly decent and law-abiding citizens, it would be an unmitigated disaster. There would be mass outrage and the law would be repealed immediately. Its very existence is contingent on its inconsistent enforcement.

Right now, in the coronavirus lockdowns, an entirely new layer of unenforceable law has been implemented all across America. Although stay-at-home orders are now being relaxed in many places, at their peak, most states banned leaving the house for all non-essential purposes. How many of us can say that we followed these rules to the letter, and never breached them, even once? How many Americans have been cast by these orders into the category of lawbreaker?

The orders had no hope of being enforced consistently. To do so would require a police state of unthinkable power. Instead, they have been enforced inconsistently and at times arbitrarily, with the police arresting some barbers, restaurant owners, and beachgoers while turning a blind eye to many others.

Unfortunately, the effect of all this is to cast a pall of illicitness over activities which would have been perfectly normal a few months ago, and which are in fact necessary to sustain our society. Those who engage in these activities do so under the shadow of transgression; people arrange for black market haircuts like teenagers arranging drug deals. This will do nothing but erode public respect for the law — the very institution which holds society together. If we are all criminals, then none of us are.

This is by no means a merely hypothetical concern. Right now, cities across the country, including Louisville and Minneapolis, are dissolving into anarchy. Protesters have been shot; stores and even police stations have been looted and burned. The direct impetus for these protests were the killings by police of George Lloyd and Breonna Taylor, among others. And yet in the protests, we are seeing something even more sinister: the end result of a system of legal enforcement that has become so arbitrary as to be effectively meaningless, combined with the collective frustration of a populace which has been asked to spend the past several months confined to their homes.

The fiery Hobbesian chaos erupting on the streets of America right now is the very scenario that the rule of law is designed to protect us from. It is precisely because we live in a system with strong legal institutions, and because most citizens accept its legitimacy, that we can go outdoors every day and reasonably expect to arrive home safely. This is contingent, however, on the law serving an instrument that generally protects, rather than brutalizes, its citizens.

In an ideal society, we would all be rightfully aghast at the sight of a police precinct burning. But when police have spent the past three months enforcing social distancing orders which have deprived Americans of their basic freedom, they have squandered much of the good will that they could ordinarily expect from the public. Many former “Blue Lives Matter” conservatives will not be rushing to stick out their necks for police officers who have enforced the fiats of Gavin Newsom and Gretchen Whitmer.

If the state is, as Weber said, the institution which holds a monopoly on the legitimized use of physical force within a given territory, then it must use this force properly and sparingly in order to maintain its legitimacy. It has not done so of late. If it continues to fail, the ensuing conflagration will consume us all.

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Jason Garshfield

Jason Garshfield

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