Sunday, July 03, 2005

Unenforced Laws

I would expect that it's a bad idea to have laws that are not going to be properly enforced. If we're not willing to enforce it, then it shouldn't be codified in our laws. Frogblog quotes a newspaper editorial on the section 59 (a.k.a. "anti-smacking") bill:
National’s social services spokeswoman Judith Collins is not alone in describing the bill as a “blunt instrument” which will criminalise loving parents along with abusive ones. But our hard-pressed police are hardly like to devote resources to arresting an occasional non-abusive disciplinarian. Stop and think: it’s illegal to make a copy of a CD even if you own it, but the cops aren’t bashing down the doors of individuals burning a disc to play in the car.

The comparison does nothing to show that the S59 bill is a good one. Rather, it highlights the stupidity of our present intellectual property laws. Now, I'm not worried that the police will start an anti-smacking crusade. Of course not. (They've got recreational marijuana use to worry about first. *rolls eyes*) Seriously though, the objection is not that smacking will get prosecuted, but that it is being criminalized. Perhaps, as a matter of contingent practice, the police will not bother to prosecute all the "criminal" smacking parents around the country. But the fact remains that the bill would make such "reasonable force" illegal. It gives police the right, in principle, to prosecute such parents. Just like they have the right to prosecute music-lovers who burn a backup copy of their favourite CD. Both are bad laws. It would be worse if they were strictly enforced, of course. But the fact that we aren't willing to so enforce them just goes to show that they should not be laws in the first place.

As I suggested in Kiwi Carnival #1, it seems that the real issue here is who ought to decide what counts as 'reasonable' force? Proponents of the bill point to examples where juries have made bad decisions, excusing child abusers in the name of "reasonable" discipline. The proposed change shifts discretionary powers from jurors to the police. As I understand the bill, it implies that if the police did choose to press charges against someone for smacking, then - as a matter of law - the jury would be forced to convict if it was established that disciplinary smacking had occurred. The defence could not appeal to the notion of reasonable force in child discipline -- the bill would render this defence legally impotent. Surely this is a bad idea. Juries may not be perfect, but shifting discretionary powers to the police is not the answer.

(For the record, I quite like the Greens, as should be clear from my other political posts. But I wish they weren't so quick to see consolidating state power as the solution to everything. They seem to suffer from a bad case of the einstellung effect.)

More generally, though, might it sometimes be right to keep something illegal solely to "send a message"? This is an argument more beloved of conservatives than liberals. (Examples that spring to mind include drug use, prostitution, sodomy, etc.) Indeed, the problem with this line of argument was highlighted in my old post on gay marriage:
The lives of same-sex families aren't post-it notes! If marriage equality opponents wish to send a message, they should by all means write opinion pieces, or agitate for more healthy heterosexual families on TV. But don't use lesbian and gay lives for your op-ed statement. Same-sex families are human beings, as precious as any heterosexual family; injustice to them cannot be justified by saying injustice sends a valuable message.

I think this response generalizes to anyone affected by an unjust law. Here's the problem: if an illegal act-type typically harms others, then it ought to be punished, and the law properly enforced. But if it doesn't harm others, then it shouldn't be illegal in the first place. The law is not a medium for "sending messages", that is not its purpose. So we reach the general conclusion that, in principle, there should not be unenforced laws. (This supplements the practical point against investing police with the discretionary powers that such laws provide.)


  1. unenforcable reduce respect for the law - getting people into the habit of breaking laws.

    They also provide the potential for selective enforcement of laws depending on various factors.

    For example immagine if there was a law against "walking on cracks" no problem unles the police want to search you in which case they will arest you for walking on cracks in order to get you in a cell.

  2. A great reason to have an unenforced law (which I think there is another term for, but I can't remember what it is), would be to prevent some body, corp., or gov't, from making profit off of what is criminalized. For instance, prostitution (admittedly enforced at times), if legal, could be taxed. Or making several copies of a cd and giving them away (I guess selling them would be a different, and enforced law, but there are other ways to profit from doing something). I could go on, obviously, but I think ya get my point.


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