Bad laws aren’t just annoying, they don’t just ruin your day or your weekly budget, but they do something far worse… they damage the relationship between the government and the governed, and turn law-enforcement into a kind of enemy to be avoided or worse. In short, bad laws cut at the very foundations of society and undermine much of what most would consider to be ‘civilization’.
This article is just one example of many. Wherever the punishment does not fit the crime, or it’s absurd to call the activity a ‘crime’ in the first place, it causes people to be rightly cynical about the motives and the intentions of the law writers and the law enforcers, particularly when there’s a financial incentive to the State. And this can only happen so many times and for so long before things can start to get ugly.
Western Democracies in all their varied forms are supposed to achieve one key aim: Ensure that the government serves the people, and not the other way around. Different western nations approach that particular problem in different ways, but advocates for each type of government (whether Republic, Constitutional Monarchy, or any of the myriad variations on those themes) will proudly proclaim how their favored form of government ensures that the people are better served, their needs and wants better responded to, than the ‘others’.
But lets take stock for a moment. As you look around Australia (or wherever you live) and consider the webs of laws, rules, and regulations that bind you, ask yourself this: Who is this good for? Were these introduced in response to the stated desires of the wider public, or because of some special interest group or lobbyists? If you feel aggrieved by a given law, what recourse do you have to challenge or change it? Even if a majority oppose a given law, if your major political parties agree on it, what can you do to change it?
In most cases, the things that really irk you are probably introduced on the whims of special interest groups or lobbyists (and I include public health nannies in the ‘lobbyist’ category) without you being given any kind of choice or opportunity for input that will actually be taken into account. On top of that, the penalties for these ‘crimes’ is set at a level suitable to politicians and bureaucrats, and are rarely if ever in keeping with the nature of the ‘crime’, and to cap it all off, they are then enforced by officers who are quick to pull out the ‘it’s the law’ or ‘I’m just doing my job’ arguments, when these are laws which should never have been written and thanks to these onerous laws, them ‘doing their job’ has become part of the problem.
And when politicians, judges, and police officers are all using the power of their badge, backed up by the implied threat of violence if you don’t obey, then what can a citizen do? Civil disobedience only works up until the point where men with guns show up at your door to drag you away.
So what’s the solution? I’m not sure. There’s only a few ways to really curtail this behavior and I don’t expect any of them to happen any time soon, but let me make a few suggestions:
- Judges actually start doing their jobs. It’s a fact of law which has been carefully ‘forgotten’ by the legal system that Judges, and in particular Juries, can throw out a law if they find that it’s unjust. The idea that Judges must enforce a law because ‘it’s the law’ ignores one of their key functions… Justice. Where a Jury or Judge determine that the law itself is the problem, they are duty-bound to deal with that problem. And before you jump up and down and say ‘that’s only in the US’, it’s also in Australian law, inherited through our Common Law foundations, and whilst many a legal ‘scholar’ in this country would decry it’s use as an abuse of power, and such things are studiously avoided when new lawyers are being trained, the common law foundations are still our foundations, and laws can be nullified if they are deemed to be unjust.
- Politicians start doing their jobs. This is even less likely than for Judges to do their jobs, but to actually have a generation of politicians who take seriously their responsibility to be a reprasentative of the will of the people rather than an enforcer of his / her own will, would transform this country in a matter of weeks. But that’s not going to happen any time soon, because there are too many games that politicians can play to buy off special interest groups and ensure they get the support of enough key constituents that no matter how much noise gets made by a few ‘malcontents’, their position of privilege and power is assured.
- Police start pushing back. This is the one I hold out the most hope for, but to be honest, even then it’s just a fools hope. What if a police commissioner, or the police union, or a large-enough body of officers actually started taking their jobs seriously as servants of the people rather than servants of the state? What would that look like? A boycott of sorts. What if hundreds or even thousands of officers made a pact to not enforce jaywalking laws, or bicycle helmet laws, or to search people without reasonable suspicion of a crime, etc. Think of it as civil disobedience at a police level, rather than the general public. Yes they’d be breaking the law… but would a politician be willing to go to war with their own police force and sack or charge 20% + of his officers? The state budget would be being so badly impacted by the lack of fines that government would quickly have to make peace and cut some of the most offensive laws just to get the officers back on the beat to enforce the others!
So when do I think one of these will happen? Never.
Not until people get really angry. And I don’t mean just the occasional mad crank who can be mocked on the nightly news for some publicity stunt, I mean wide-spread anger. The only way this tide is going to be turned is if people start pushing back, and not just figuratively. Think of the Bundy Ranch standoff in the US as an example. Think of the violent protests seen in other parts of the world. These are people who have been pushed too far for too long and they’re finally starting to push back. It’s ugly, it’s dangerous, it’s not where anyone wanted things to lead, but these people feel they’re left with no other choice.
So I started all this by saying that Bad Laws Have Consequences. In the short term those consequences are a few angry cranks, and some muted complaints from an obedient public. In the long term (and no one can predict exactly how long) those consequences can turn ugly or even violent.
That’s not what I want, and if you asked a politician, judge, or police officer they would tell you that that’s not what they want either. Good. Since none of us want the inevitable consequences of bad laws, lets start repealing them… now. Because if we continue down the current path of ever more laws with ever higher punishments, we’ll eventually reach the point that people start to push back, not with articles in local newspapers like the lady above, or on blogs like me, but some people will start to push back in the literal sense, feeling that that’s the only option left to them.
None of us want that, so lets stop it while we can.
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The problem with the solution #1 is that it already happens, just sadly in respect of the ‘pet projects’ of judges.
Example 1: when they are so lenient or acquit, fail to properly imprison or punish criminals because the relevant Judge pretends that it would be ‘unjust’ due to some sob story or other about disadvantage or dreamed up abuse.
Example 2: the judges strike down or don’t enforce laws aimed stopping illegal immigration because the law is ‘unjust’ in their narrow opinion when applied to an individual, despite them being precisely the opposite when applied to populations of genuine asylum seekers languishing honestly in refugee camps, and further despite the law being both supported by the public, and legitimately passed by the government.
And your solution #3 also happens:
Example 3: Protesters (usually green, socialist or otherwise anti-democratic) commit crimes, damage property, illegally block roads or harass the public, yet police fail to enforce the law, arrest the criminals or have them charged.
Example 4: Union blockades of businesses that are illegal, and police failure to enforce the law to clear the blockade.
The real problem is not the failure of the judges or police to do what you suggest, its the failure of the police and judges to hold views representative of the public ones.
What we need is for people to be made aware, especially before doing jury duty, of the basic Common Law principle of jury nullification. The power is in our hands which is why judges would rather we just forget about it. We don’t need wise and wonderful authority figures set over us such as police and judges to do their jobs to set us free. We the people need to do ours and set ourselves free.