(Note: throughout this posting I use the word “law”
meaning “legislation”. I acknowledge the
term is wrong and that “law” has a much higher meaning that may or may not
agree with legislative, judicial, or bureaucratic regulation, but in this
instance I use it in the much lower sense of any legislation, regulation, or
rule.)
I just read an article by Michael Munger, “The Thing Itself” in which he tells a story of an overzealous cop harassing a citizen who was breaking a stupid law. Munger’s point (or my take-away, at least) was that the making of new laws for every conceivable case of unfairness or social rudeness is the problem. The cop was doing her job, what she was hired to do. She wasn’t hired to decide which laws were good or which of the people who broke those laws deserved punishment. Her job was to arrest everyone who broke any law. The problem is not the cop, it’s the law. More specifically, the problem is the idea that a law can “rid the world of injustice, nuisance or inconvenience.”
Munger is right. A
law that police or other regulators have discretion in enforcing means that
they will enforce the law when they want to:
someone they don’t like because of color or religion or politics or
personality will be subject to laws that people the enforcer does like will not be
subject to.
Several libertarian friends have been advocating changing
our system through ignoring the law.
These civil disobedience advocates give examples like police who don’t
believe in arresting people for “victimless crimes”, or “jury nullification” where
juries refuse to convict, or “smoke-ins” because if we band together police
can’t possibly arrest everyone. I agree
with their point that laws need to change, but a de facto change without a corresponding, or at least following,
change in law will lead to tyranny. I
don’t like it.
I’d like to suggest an alternative to civil
disobedience. I’ll call it “civil
obedience”. I submit that a strict
adherence to the letter of the law can be a great way to get bad laws changed.
My father-in-law, John, provides excellent examples of
obeying a law in order to get it changed.
There used to be an anti-poaching law in Michigan prohibiting possessing
meat out of season. Individuals were
allowed to keep venison for thirty days after hunting season ended. After that, possession was a crime unless the
hunter went down to the local DNR office and asked for a permit to keep the
meat for an additional thirty days.
These permits were endlessly renewable for thirty days at a time. This law was an unenforced regulation on the
books for who-knows-how-long until some officer needed a pretext to arrest
someone. John asked all his buddies if
they had ever heard of this law and most hadn’t. “What does it matter? They never enforce it.” John decided to do something about it. Hunting season ended January 1, so he
organized his buddies to go stand in line at the end of January at the local
DNR office and apply for the permit to keep their venison. They went back at the end of February, March,
etc., and made such a nuisance of themselves at the DNR, whose employees had
never heard of this form and didn’t want to spend one day a month doing nothing
but approving meat permits, that within a year the legislature had repealed the
law.
John came by his philosophy as a prison
guard. It was a decent job: hard work,
good pay. Shortly after he started there
were problems with riots, and guards were killed. John and a buddy attended every one of the
hearings that explored what went wrong and who was at fault in the deaths of
his coworkers. The result was a list of
prison regulations that were extant on the books but had not been enforced in
memory. “Why didn’t the officers do this,
and this, and this, according to regulation?”
The real answer was that no one ever followed those regulations and
things normally went along just fine, but the fact that the officer died while
not obeying regulations gave administration an out; it wasn’t their fault for prison
conditions, or for being understaffed; there were regulations that hadn’t been
followed. John decided he was never
going to be on the wrong side of the line.
He was going to obey every single regulation and policy, no matter how
ridiculous, because they were never going to be able to pin the blame on him.
A regulation came down from above that handcuffs were not
allowed to be hung on the outside of the belt where prisoners could grab them;
guards could put them in their pockets or buy a case for them. John thought that required equipment like
handcuff cases should be provided by the employer, but management told him they didn't have to because he
could keep them in his pocket. So he
did. Most coworkers tried putting
handcuffs in their pockets, but the hard handcuffs caused blisters through the
thin cloth of pants pockets and most soon hung them back on their belt or
bought their own cases or stopped carrying them. Not John. He was told to put his handcuffs in his
pocket, so he did. He got blisters. Regulations said that all workplace injuries
had to be reported to the prison doctor for documentation. At the end of every shift, John stubbornly reported
to the prison doctor to have his blisters looked at. After the doc cleared him, he clocked out and
went home. After a month in which he
received overtime every single day while waiting for Doc to document his
“workplace injuries”, the prison issued $3 handcuff cases to every guard.
I will admit that civil obedience has limited
application in repealing most laws, but there are a few cases that are directly
analogous. Take campus carry laws. Michigan disallows CPL holders from carrying
into classrooms or dorm rooms (or stadiums), but allows someone walking through
campus to carry a gun. Students at the
local university are not allowed to possess anything on campus capable of
firing a projectile of any kind, including nerf guns, water pistols,
slingshots, bows, or physics demonstrations.
So, visitors can be armed, but not students? Hunting is very popular in the area and
students are allowed to bring legal guns to school with them but must check
them in at the Public Safety office and are not allowed to bring them on
campus. Wouldn’t it be great if we could
get ten or twenty concealed pistol license holders (or any legal gun
owners—open carry is legal in Michigan, just not common) on each campus to
bring their guns to school with them every day, check them into Public Safety,
go to class, and then check them out again?
Once it became commonplace to check the guns in and out the scariness
factor would go down, and universities would get tired of hiring extra
personnel for the check-in procedure.
Another way that enforcement changes the law is through the
court system. Relying on judges to use
the constitution to overturn bad legislation is an iffy business, but it is how
we got Tennessee v. John Thomas Scopes
and Lawrence v. Texas.
Back to Munger’s story about the overzealous cop, I submit
that if every cop was that vehement in his or her duty that there would soon be
a large public outcry to get rid of the stupid laws that the public had hired
the cops to enforce in the first place.
Or maybe not. The US
already has a higher incarceration rate than any civilized or semi-civilized
(or uncivilized—it takes a lot of civilization to be rich enough to incarcerate
that many people) nation and no one seems
to mind yet. But if we enforced drug
laws against white college students as harshly as we do against stereotyped
black inner-city gang members, the public might notice more.
