There are a lot of things that you shouldn’t do, which aren’t illegal. And that’s not a failure of the law. There are lots of things that are illegal, which shouldn’t be illegal, despite that you shouldn’t do them.
Let me make one thing clear: I’m not a libertarian. I think there should be a lot of laws and regulations. I think the government is the best delegated authority for a lot of stuff. But the law is a blunt instrument a lot of the time, which makes it a less than ideal way of addressing most bad behaviour.
Why am I talking about this? Two examples come to mind on opposite ends of a spectrum.
First: People are all too focused on whether the things that Trump has done are illegal. And this sets a really weird standard, because not only do we have to fit his behaviour within a legal context, but then he also has the benefit of being innocent until proven guilty. I think a much more useful standard to use for a public servant, particularly the President, should be that which is popular within the legal community which is that justice must not just be done but must be seen to be done. Courts often go out of their way to not only avoid impropriety but to also avoid any appearance of impropriety. Because it is important that people have confidence in their justice system, and that’s more of a PR issue than it is a factual issue. Applying this to Trump, it would mean that the question is not so much whether the meetings and e-mails between his representatives and associates of foreign governments were illegal, the question is whether or not they were appropriate. They were not. And the incredible volume of those interactions makes them all the more inappropriate. Does that impropriety warrant impeachment? Does it warrant changing your vote? Those are difficult questions, but that doesn’t mean that you can just pass them off onto someone else. Because while you could create a law which prohibits all interactions with foreign nationals during the course of a campaign, that would be a dumb and impractical law. And the laws that we actually have on the books which try to more narrowly address the problem are so fluffy as to be practically unenforceable. Because, in actual fact: the purpose of such laws is merely to unburden the legislative branch and the fifth estate and the electorate of their democratic duty to call bullshit on bad behaviour. And when an essentially political issue is hot-potatoed to the justice system, it has the very unfortunate consequence of politicizing the justice system.
Second: Marijuana should be legal. I have no skin in the game; I don’t use marijuana. But even if you ascribe some immorality to smoking marijuana, making it illegal is a dumb and bad way of moralizing. Laws and regulations should are important to the extent that a substance or activity poses to the public. Some drugs should be governed by staunchly enforced laws. Some drugs should be heavily regulated. Some substances require less staunch regulation. We’re talking the difference between fentanyl and alcohol and vitamins. For example: I think that homeopathic medicine is a scam, and I think it’s dangerous as an advertised alternative to real medicine. But the laws against false advertising, fraud, and child neglect address a lot of the potential harm posed by that bullshit. Beyond that, it’s not the law’s job to render the conversation about homeopathic medicine moot so that I can avoid the frustration and embarrassment that those conversations will entail. Because sometimes when we use the law to address what is essentially an ethical question, we end up with substances / activities that are merely unethical for a certain class of people but which are criminal for another class of people. The criminalization of marijuana being a prime example of a law which has made smoking pot a petty rebellion for upper / middle class white people but an existential threat to everyone else. A law which cannot be enforced equally should not be a law. A law which creates more social carnage than does the substance / behaviour it seeks to address should not be a law. If you ascribe some immorality to marijuana, then make the case. You’ll probably be largely unsuccessful, and you should maybe then consider why your case is so weak.
The law is a beautiful and wonderful thing. At its best, it is both powerful and precise. At its best, it is the solid foundation on which our society is built and it is the pillars which enable us to continue to grow and develop. I am so proud to be a lawyer. But the law is not a cure-all, and it shouldn’t be scapegoated as such. To do so only corrupts the law and by extension the structural integrity of our entire civic system.
Posted in: Progress