Fundamentals of Law

For starters, you have the problem that whenever you write a law, you are assuming that the person doing the writing many years in the past (usually) knows better than the individual on the spot what is good behaviour, and what is bad behaviour.

Often laws are writen not to stop the writer doing something that they don't trust themselves not to do, but to stop their neighbour from doing something that is none of the writers business, and which the writer wouldn't even consider doing in the first place. (prohibition of <substance> or <behaviour> is a good example of this).

You have the problem of cultural bias, which results in lots of black english prisoners being sent to psychiatric wards for talking to their god, when it is the cultural norm for some parts of black culture to talk to god, and they would be looked at strangely in their own culture if they didn't talk to him.

You also have the problem that if you give governments the power to tax and make laws, they always add to the legal and tax burden that you have to deal with, never reduce it. This is down to the inability of most political systems to elect any people to the job of legislators/politicians who will actually trust the public to control their own destiny, and make at least as good a job of it as the governments who are trying to do it for them.

You then have the problem of creeping stupidity, due to case law being binding on future circumstances. What starts out as a fairly harmless idea, or a minor protection for the innocent rapidly gets exploited by the guilty as a protection from justice.

One thing that's sort of related to the creeping stupidity point is the law of unintended consequences. Laws are often written or changed for excellent reasons. If they worked as they were written they'd be wonderful. When they're put into practice, they don't work quite right because there's a subtle problem with the law, or people's reactions to the law.

One example with which I am unfortunalty familiar is the DUI (Driving Under the Influence) laws in the US. MADD (Mothers Against Drunk Driving) and other traffic safety organizations pushed for harsher punishements. Now there are brief mandatory jail sentances, license suspensions (called bans in the UK), hefty fines, and probation.

Professional licensing organizations like the FAA are starting to revoke licenses for DUI.

That's all fine and good, but it's also created one of the most specialized and overpriced area of the law, DUI defense. The really good ones start at about $5000 not to mention the cost of a trial.

It's also lead to some of the most tightly contested areas of the law. Since it's fairly easy to tell if someone is drunk, the attorneys have created a maze that prosecutors have to jump through to prove a case.

So now, if a person is represented by a half way decent attorney (which costs a bit less than the $5000). Prosecutors will often allow someone to plead to recklass driving rather than go through the trouble of a trial.

The law of unintended consequences has made it more difficult to actually prosecute DUI's.

I think that the prime law of law-making should be: legislate only when there is no just and practical alternative. If this was so, I believe it would answer most of the problems. Sadly, it isn't necessarily the case, and the Real World contains too many examples of bad laws, or good laws deliberately misinterpreted and abused.

link back to site index

last modified 02:41 2003/08/14