The Law Is Inherently Violent: A Debate

Readers converse about the wisdom of refraining from passing some laws and regulations in order to avoid the violence that will accompany their enforcement.

Earlier this week, Yale law professor Stephen L. Carter argued that “every law is violent.” He advises his law students to “never to argue for invoking the power of law except in a cause for which they are willing to kill,” because “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; if he resists… the sheriff might have to shoot him.”

“This is by no means an argument against having laws,” he added. “It is an argument for a degree of humility as we choose which of the many things we may not like to make illegal.”

Many readers responded with emails of agreement and disagreement.

Daniel wondered if Carter’s argument applies outside the United States:

Regarding the claim that only those rules should be put into law for which society is ready to kill, I would like to suggest the European experience. Here, with strict gun-control laws, police almost never kill anybody. Carter is maybe right in the U.S., but would definitely be wrong in Europe… I am from Hungary, and I recall only a few cases from the last ten years where someone died in a police operation: all were armed robbers.

Yes, police often oversteps their duties, but it results only in extended deprivation of liberty, or in rare cases, broken bones, but definitely not in death. I agree that law is violent: breaching a contract can result in being homeless, with your children taken away, and is a problem we should work on.

Rudolf Efremov has related thoughts:

Although I would agree that there is some violence to the exercise of the law, I whole-heartedly disagree with the idea that I should be capable of killing in order to enforce it. That unduly burdens the order-creation process as it implies the existence of a risk (death of a non-compliant) that is not inherent. The risk of death could be easily removed by creating a non-gun-trigger-happy enforcement agency. Especially since there are many alternative ways for police officers to defend themselves that do not involve the death of innocents––such as immobilization devices or techniques that are successfully used by other countries.

I recognize that in the United States of America in particular, police violence is a part of your culture, one which results too frequently in the death of members of minorities. However, I believe that this is a defect of your legal system and it is one that is surmountable. Indeed, this should be what needs to change. To put it briefly, the law can be tailored in such a way that its enforcement does not allow police officers to kill.

Moreover, to say that a lawyer or a judge must be willing to kill if they desire to enforce a piece of regulation is to assume the lack of free will of the non-compliant person. Surely, even a person who does not have the means to pay a fine can decide not to resist arrest. If they can decide not to resist, then if they do resist, their voluntary act severs the causal connection between the enforcement of the law and the death that follows.

Scott adds:

(1) Mere violation of the law is rarely a sufficient justification for the use of force, let alone deadly force. Deadly force usually requires a threat to the officer's safety, to public safety, or some other sufficiently compelling justification.

(2) Regardless, the "crime" that justified Eric Garner's death was not selling untaxed cigarettes, it was being perceived as threatening by a police officer. And as has been seen repeatedly, there is no requirement for an actual threat (or indeed an actual crime) to justify that police officer's perception. The issue is not the law, but the discretion given to law enforcement in enforcing the law. While I suppose you could argue that "more laws means more opportunities for police officers to feel threatened," the low incidence of police homicides (or violence generally) in enforcing white collar crimes suggests the issue is not the laws, it's the suspects.

Zoltan Boka defends the value of laws, even as he acknowledges the shortcomings of lawmakers:

I spend my working days enforcing regulations related to scientific research on people. It requires a balancing of interests; I often find myself telling budding researchers that their protocols must be modified or scrapped. I do this in the spirit of the CFR - code of federal regulations- which governs what people may or may not do in the name of science.

My job is a worthy endeavor. My family survived, among other things, medical torture in concentration camps. People are by nature selfish, cruel, needy, impulsive and thoughtless. Laws are a good thing in such an environment.

But these same selfish, cruel, needy, impulsive & thoughtless beings are also lawmakers. What is more, they are insulated and almost never subject to the laws they pass. This is especially true today when laws are written by lobbyists and shepherded through legislatures by the cheapest member. This sets up a world where people make laws for others to enforce with little regard for consequences. People like Eric Garner pay the price.

The men who killed Eric Garner are free. Any lawsuit settlement would be paid by myself and other New Yorkers, not the officers personally. The problem doesn't lie in the law but in its feeble reach when it comes to those, like police and lawmakers, whom we have deemed to be above it.

Lizzie Buchen laments non-lethal violence in the criminal justice system:

Thank you for drawing attention to the violence of our criminal justice system in “Enforcing the Law Is Inherently Violent.” I appreciate Professor Carter’s view, and would add that this violence is not only a matter of “a law enforcement officer who will go too far, whether out of overzealousness, recklessness, or simply the need to make a fast choice.”

Absolutely, law enforcement in America is inherently violent — and that violence does not require bullets or batons. Even in a routine arrest and booking, where nothing “goes wrong,” the enforcement of the law involves extreme coercive power: forcibly incapacitating a person with handcuffs, abducting them from their families, and locking them in a cage. If they are convicted, the routine, state-sanctioned violence intensifies: they may be forced to wear an ankle bracelet, or deported, or ordered to die by lethal injection, or secluded for decades in a remote, locked institution rampant with legal violence exercised without moderation or restraint, including law-and-order invasions of the genitals every time a prisoner is strip-searched.

And then there are the times when policing “goes wrong.” If you think officer brutality is a problem on the streets — in front of cameras and bystanders, with targets technically presumed innocent — imagine the cesspool of corruption and human rights violations that festers behind prison walls, where there is no media access, where every action of not just the prisoners but also the medical staff are ruled and regulated by the police, and where filing a complaint can result in being set up for a beating or worse.

As for your question of whether “the benefits” of law enforcement would justify the violence of doing so, these benefits are difficult to identify. There is scant evidence linking our enormous systems of policing and imprisonment, our extreme sentences, and the mass criminalization of poor people of color, to improvements in public safety. There is plenty of evidence, however, that incarceration deepens poverty, exacerbates addiction and mental illness, and accelerates the downward mobility of low-income communities. To reduce violence, we need massive decriminalization and massive decarceration.

Daniel Golliher muses on how Carter might make his argument more persuasive to mainline liberals and conservatives:

I agree with Carter, and had already been convinced of his argument, but I often find that it is not presented in a way that is persuasive to mainline conservatives and liberals. When I first traced the consequences of breaking a law—any law—back to the deployment of lethal force, I revised my view of government. Because government, ultimately, is nothing but force, law should only be used in situations where force is acceptable (as opposed to being required by someone’s idea of a good society). This makes good sense to me, and is grounded in my own views on philosophy.

However, I find that conservatives and liberals do not think this way. My favorite book on this topic is the concise The Three Languages of Politics, by Arnold Kling. It summarizes the issue thus: libertarians discuss politics along a coercion-freedom axis, conservatives use a barbarian-civilization axis, and liberals use a oppressor-oppressed axis. Many times these groups talk past one another, and conservatives and liberals do not especially care that violence is required to maintain civilization/help the oppressed. Where a libertarian would say “but that applies violence against me!” as a trump card, meant to win a discussion (and it would, among libertarians), a liberal would say “then move to Somalia,” because they do not recognize freedom as the proper standard for human existence, but rather charity (in various forms).

To be persuasive to those in dug-in positions, Carter would have to present his arguments in their language; for example, instead of trying to convince a liberal to abandon the drug war because it infringes upon an individual’s liberty to do with their body what they please by violently requiring otherwise, one could explain how, by empowering the government to enforce those laws, they are giving it the ability to further oppress minorities (and everyone else), who already suffer systemic disadvantages. This phrasing still acknowledges the problem of force, but in such a way that it will not bounce off of a liberal without impact.

I agree with Carter’s view, and think that a plain presentation about the nature of violence and law would be partially convincing to anyone who is not dogmatic. But many liberals and conservatives are, especially regarding the nature of government. I hope that, after the presentation of his view in libertarian terms, he translates it into the conservative and liberal languages.

Patrick Ryan defends smoking bans:

Professor Carter's point is a good one, and useful as pedagogy. It's a model, and one that can help us to understand the operation of the U.S. legal system around us every day. But the balancing analysis of your question, regarding the benefits of enforcement outweighing "the violence likely to be triggered, sooner or later, by attempts at enforcement," is one that gives me pause, in part because it's not clear that violence is ever "likely" to be triggered in the enforcement of the vast majority of laws.

Take one of my favorite nanny-statisms as an example: smoking bans in public places. In theory, we're to ask whether the objectives of such a legal obligation are important enough to warrant violent enforcement by the state.

However, and in part because of the implicit possibility of such enforcement, smokers overwhelmingly choose to wait until they are in a place where the law allows them to partake, rather than sit in some restaurant smoking until the manager calls the police, and the police forcibly haul them away. They are undertaking their own reciprocal balancing analysis, and determining whether non-compliance with the law or regulation is worth the possibility of State enforcement (more on this in a second).

But here, particularly starkly, we see the calculus play out: I've lived almost my whole life in states with smoking bans in certain public places, and I cannot recall a report of police violently (or even gently) intervening to make sure those laws are enforced. Meanwhile, the benefits of those laws in limiting the demonstrated health consequences of secondhand smoke are surely very real. When we consider that state enforcement is needed perhaps 0.001% of the time (if even that often), and that the benefits of the law inure at a nearly constant rate, as smokers abstain or choose not to attend such places, even that inexact math gives me the impression that we've taken the right course.

Jessica worries that ceasing to enforce minor laws could put the public in lethal danger:

This problem was a cause of much debate in my college town when the Greensboro, NC police department was on the front cover of the NY Times for the large racial disparities in how many people are searched or charged with obstructing an officer as a result of a traffic stop for a minor infraction. In response, the department stopped pulling people over for minor vehicle infractions such as expired registration or a broken tail light.

As a middle school teacher, I'm highly aware that a rule is only a rule if it’s enforced. This action by the Greensboro Police Department essentially means that it is legal to drive with a broken tail light or expired registration in Greensboro. The benefit will hopefully be fewer violent confrontations between police and residents. However the question is what level of risk are you exposing the community to when you stop enforcing these laws? Is it likely that more (potentially fatal) car accidents will occur because more people have one or both tail lights out? Will car thieves be emboldened by relaxed registration rules? Will others be hurt or killed because of safety problems with their car that they did not address as quickly because they know they won't be pulled for expired registration?

Stephen Carter is right that lawmakers should consider the near inevitability of violence in any law they write, however more research needs to go into the level of risk to which you are exposing a community when you begin rolling back laws that perhaps do not immediately seem to warrant violent enforcement.

John Cahill warns against depriving citizens of the ability to enforce contracts:

Prof. Carter's assertions are so absurd I could not let them pass. At its heart, it is a claim that the rule of law is worth fighting for. With this, I assume most of your readers would agree.  Beyond that, it is ridiculous to say that because a $500 claim is not worth killing for, there ought be no legal means to bring and enforce the claim.  Depriving private citizens of such recourse is the first step in encouraging them to take the law into their own hands.  You or I might not kill over a $500 debt, but there are plenty who would, and if there is no way for their claim to be heard and decided, only human nature provides the upper limit on remedies that otherwise law-abiding citizens might take on themselves, if there is no law by which they can abide, and still exercise their rights.

Melanie Hinchey wouldn’t want to collect on a debt if it required lethal violence––but she does want the police to go after the sort of people who would violently resist the law:

While his consideration is an excellent thought experiment and a necessary consideration for many policy decisions, one has to acknowledge that it is not the misdemeanor itself that people are killed for, but the additional crime of resisting arrest or fleeing the police. The piece would have been more properly titled, “Resisting the Law is Inherently Violent.” While I am not trying to justify the death of Eric Garner, or Freddy Grey, or Walter Scott, or any of the other men and women who have been the victims of unconscionable police over-reach, their resistance of authority was the actual crime for which they were killed.

In the professor’s example of breach of contract, no amount of money owed to me, personally, could justify an armed shootout. On the other hand, someone barricading themselves in their house with guns in an attempt to thwart law enforcement does warrant a police response – regardless of the trigger.  In a world full of flawed humans, there will be times when force is used instead of discretion, on both sides of the law enforcement/civilian dynamic.  And I strongly believe that officers ought to use force less than they do. But, I cannot see how fewer laws will  change the dynamic.

A.M. believes that most laws deter more violence than they cause, and that a dearth of even seemingly minor laws can cause violence:

While passing any law infers the potentiality of violence in the enforcement of it, not passing laws can also infer the potentiality of violence in the illegal enforcement of a non-law that should have been passed.

For example: if you do not pass a law regulating bicycle riding or leaf blower use, or noise level restriction from televisions in apartment houses, or pollution from industry , etc., then someone will inevitably enforce their own "law" in a violent way against offenders of it. The truck driver will run over the bicyclist. An angry neighbor will shoot the landscaper, or the neighbor with the blaring loudspeakers, or the owner of the factory which poisoned his children's water supply. We pass laws to, hopefully, minimize violence by minimizing violence-provoking behavior and providing courts when such behavior manifests itself.

While laws may lead to violence in their enforcement, often that potential violence pales in comparison with the potential, completely unprofessional unregulated violence that would have occurred without the law...

So, more laws often means LESS violence , not more.   

Martin Kulig is okay with enforcing speed limits, even if the consequences are occasionally lethal:

I absolutely agree that the violence inherent in the enforcement of laws should give us some pause when deciding what to make illegal. Thinking about this question, however, has made me realize how often that violence is an acceptable cost, in my opinion.  Speeding limits save lives, so we give police to power to punish those who speed. If someone resists during a traffic stop for speeding and the police end up having to kill them, it is tragic, but not so much so that we must repeal all speeding laws. At some point, the responsibility for violence that results from enforcing the law must be placed on those who choose to break the law, and resist the consequences for doing so, and not on the law itself.

Paige wants to return to old-school accountability:

Shunning is harsh, and in some circumstances life threatening, but it's not violent. Neither is negotiated compliance (compromise). What was a violent ultimate outcome, in retrospect, was never the only possible outcome.

There are always choices.

We should, communally, expect each other to UPHOLD the law, not delegate someone to ENFORCE it.

Claire Larson focuses on racial disparities in law enforcement:

One component missing from your discussion is the specifically racially unequal application of the law.  For example, in my hometown of NYC, during the height of "stop and frisk," infractions such as jaywalking, or an open beer bottle would be used as a pretense for harassing young men of color in minority-concentrated areas of the city.  The same behaviors would go unnoticed in white areas of the city (such as the upper east side).

Shaun King of the NY Daily News highlighted that the police killed 6 people yesterday alone, bringing this year's total of police-involved fatalities to 566.  While the circumstances of each death are not completely known, one has to question the role that enforceable laws played in their deaths.

Zachary Williams rejects slippery slope arguments:

Though Prof. Carter raises an interesting point, I'd argue that the far more salient issue is the manner in which our society chooses to deploy violence in service of enforcing the law. Eric Garner was killed by the police while illegally selling cigarettes. How many people in the history of the United States have been killed by police while flouting EPA regulations, a form of criminality that is likely to be both more damaging and more urgent?

Signing a non-aggression pact may eventually lead to a war. Crafting a knife may eventually lead to a stabbing. But the the mere possibility that an action may be the ultimate cause of a negative, or even horrific, outcome should not be given so much consideration as should the the levers at our disposal to prevent such outcomes. Other countries are able to enforce the law without killing so many people. Why can't we?

And last but not least, Regan Whitworth writes:

Prof. Carter is undeniably correct in noting that law enforcement is the operational part of any government's (definitional) monopoly on coercion. It is also, probably, a good idea for Prof. Carter to introduce his Yale Law students to the idea that law is, at its crudest, coercion.

It is silly, though, to suggest that every invocation of a legal right should be seen as a battle to the death. Suing to collect a debt has about as tenuous connection to lethal enforcement as driving to the store for milk does to vehicular death of innocent strangers. Driving a car might lead to an innocent stranger falling in front of the car, but that doesn't mean that any trip should be worth a stranger's life. Most trips to the store are uneventful, and sheriffs almost never wind up shooting householders over a repossession.

There are a variety of religious and philosophical traditions that recognize the precariousness of life, and most of us would be better people if we took those teachings to heart. That is not, though, equivalent to saying that every invocation of a legal right requires a willingness to kill.


Thanks to everyone for the thoughtful emails.