Yale law professor Stephen L. Carter believes that the United States would benefit if the debate about what laws ought to be passed acknowledged 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.
On Thursday, Professor Carter will take part in panels on academic freedom and democratic culture at the Aspen Ideas Festival, cosponsored by the Aspen Institute and The Atlantic.
He is astute to include “regulation” in his proposed debate––in recent decades, agencies in the federal bureaucracy that few members of the public would associate with law enforcement have assembled SWAT units that carry out paramilitary raids, often against unarmed citizens engaged in nonviolent transgressions.
Are any readers persuaded by the notion that some laws they would otherwise support are better repealed, or never passed, because the benefits do not justify the violence that is likely to be triggered, sooner or later, by attempts at enforcement?
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