14 Jul 2018

“There Oughta Be a Law!”


The Atlantic quotes Professor Stephen L. Carter warning that those who favor the creation of new laws should always consider in the process the violence inherent in enforcing them.

Law professors and lawyers instinctively shy away from considering the problem of law’s violence. Every law is violent. We try not to think about this, but we should. On the first day of law school, I tell my Contracts students never to argue for invoking the power of law except in a cause for which they are willing to kill. They are suitably astonished, and often annoyed. But I point out that even a breach of contract requires a judicial remedy; and if the breacher will not pay damages, the sheriff will sequester his house and goods; and if he resists the forced sale of his property, the sheriff might have to shoot him.

This is by no means an argument against having laws.

It is an argument for a degree of humility as we choose which of the many things we may not like to make illegal. Behind every exercise of law stands the sheriff – or the SWAT team – or if necessary the National Guard. Is this an exaggeration? Ask the family of Eric Garner, who died as a result of a decision to crack down on the sale of untaxed cigarettes. That’s the crime for which he was being arrested. Yes, yes, the police were the proximate cause of his death, but the crackdown was a political decree.

The statute or regulation we like best carries the same risk that some violator will die at the hands of a law enforcement officer who will go too far. And whether that officer acts out of overzealousness, recklessness, or simply the need to make a fast choice to do the job right, the violence inherent in law will be on display. This seems to me the fundamental problem that none of us who do law for a living want to face.

But all of us should.


3 Feedbacks on "“There Oughta Be a Law!”"


While I am sympathetic to your point I cannot agree with the Eric Garner argument. He resisted arrest and thus they had to use force. The force they used against this 300 lb person that was resisting them was surprisingly mild. They did not choke him or cause his death his asthma caused his death. Of course because he is black and because NYCity is liberal there was money and political gain to be had by making the arrest and unfortunate result a matter of police brutality. It was not. The police did nothing wrong.

I am always amazed that the criminals (a perhaps innocent people too) choose to fight the police when they are stopped or being arrested. What can they be thinking? Of course in most cases they are drug users and they are thinking that they will not be able to get their next fix if they are in jail. But, seriously, you have to be some kind of stupid to actively and intentionally resist arrest such that you are beat up or shot. Eric Garner was a victim of his stupidity, simple as that.

JK Brown

When we’re saying “the government should intervene,” we’re saying “an organization with guns should threaten to lock people in cages if they don’t comply with its dictates.”
–Art Carden, Econlog

Carden doesn’t follow the thought to inevitable tragic end should people resist being locked into cages.

Francis W. Porretto

Well, of course! The entire premise of government, regardless of its specific form or organizing principles, is that it will have the privilege and the power to say to the individual: “Do as we say or we’ll kill you.”

No sophisticated wording or adroit evasion can disguise the ultimate reality behind the State. Audiences cheered to see the Death Star blown up. If only they could see clearly that possession of a Death Star is the dream of every government.


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