The Law, She is Simple

Law, along with economics and politics, is a relatively comprehensible subject about which the ruled are systematically kept ignorant. It’s an intuitive subject made ridiculously and artificially complex.

Here’s a necessary axiom of any civilized legal system: if there’s no victim and/or nobody complaining, nobody can be charged with a crime. To put it positively, if an action doesn’t hurt anybody else, it can’t be illegal.

That leaves room for complexity–situations where there it’s hard to tie together bad actors and victims, like, for example polluters or financial criminals.[1]But let’s put those aside for the moment and talk about the cases in which there is clearly, inarguably no victim at all.

If we were to go prisoner-by-prisoner and ask everyone in the country: “Did this person ever harm you in any way? If not, we’re letting them go,” somewhere north of 80% of people would walk free.

Those 1.5+ million people are typically in cages for one of two reasons. Most frequently, they’ve done something that is “wrong” in someone’s opinion, usually to do with buying or selling non-patented drugs. The second category of prisoner are those who someone (usually the same someones from the first case) thinks might engage in an actual crime with actual victims in the future–usually poor people with BAC higher than .08 or those who don’t enthusiastically follow orders from a cop.

That’s over 1.5 million people in cages in the US because nobody–at least not enough people–understand the most basic legal premise: no victim, no crime. I’ve never had a discussion with a lawyer about this subject that made any sense to me[2] That in itself doesn’t disqualify the legal-system-that-is as being something that does make sense, of course–I don’t understand quantum physics or space-time either. I feel like I’m willing to admit what I don’t know.

But when an expert in the field tries to help me get my mind around 4 dimensions or particle physics, I can see–usually via analogy or some simplification–the gist of what they’re trying to convey. It also helps that their explanations start with universal principles that are veritably true, or at least are very probably true.

When a legal expert attempts to explain why actions without victims (again, putting aside fringe cases) are crimes, things get absurd very quickly. There is no analogy or model or motivating example that leads to even a glimmer of sense. Yet every lawyer, every judge, and most politicians are trained in this way of thinking; this notion of the law as opinion given violent force. If you manage to stay in the conversation long enough, the rationale usually disolves down to: “it’s the law,” or some twist on the social contract–a fantastic unseen document that seems to under-gird most of the gawdawful things that rulers do to everyone else

And so, men, women and children are locked up. Their lives are destroyed based on legal principles that can’t be clearly explained other than to say that they exist because they do or because magic.

Not unrelated, but for another post: most of the people whose actions *do* have thousands or millions of victims–bailed out bankers, polluters, violent cops, “private abusers”/rapists, mercenary/imperial armies, etc.–are never held accountable. And so the law as we experience it is sort of the opposite of how law is supposed to function, which is kind of a pattern you may have noticed around other apologies for violence.

I am optimistic that 10 or 20 years from now, and increasingly as I age, I’ll be able to talk about law with people who weren’t raised with physical punishment or by parent who thought “because I said so” was a reason for anything. With more and more children being raised in safe, sane and loving households the nonsense that currently passes for a legal system doesn’t stand a chance.

  1. [1] two crimes with tons of victims and almost no one held legally accountable are polluting of the environment and financial fraud.
  2. [2] Granted, I don’t hang out with lawyers that often.
    • Anonylaw
    • February 24th, 2012

    I think you’ve started with a fundamental framing error. The reason lawyers will tend to throw up their hands is becuase by and large lawyers (and certainly judges) are not tasked with justifying the law; they’re tasked with interpreting it and ensuring it is executed. Every good lawyer knows that you can’t win an argument if your position is antithecial to public policy, but most often that means comporting with the public policy underpinning the statutory text and purpose as determined by the legislature. I realize this may sound like a cop out, but it is a fundamental aspect of way we’ve divided power.

    The legislatures have decided that our society is better off, not worse off, if we criminalize illicit drug possession and distribution, thereby (possibly) disincentivizing illicit drug use and distribution. It’s the possibility of collecitve–not individual–harm that girds something like drug criminalization. Certainly there are interesting argumetns to be make that no such disincentives manifest, or that there is no rational basis for distinguishing illicit from sanctioned drug use. But that’s not really the role of the judiciary. Lawyers assist the judges in interpreting the statutes and their purposes. Judes make the call based on the law that’s befor them. The politicans are the ones that should be engaged in the questions you are posing.

    • Bianca
    • February 24th, 2012

    Under “No Victim No Crime,” where do you think sex offenders fall who have consensual sex with a minor?

      • James
      • March 22nd, 2012

      I think it can only be properly dealt with on a case-by-case basis. . . a 20-something and his 16 or 17 year old girlfriend is quite distinct from a 40-something and a 5 year old – and should be treated as distinct rather than lumped together and called a crime. Also taking into consideration that females mature before males do (or so I’m told), and that some (males and females) go through Puberty before others. . . like many things, there is no cut-and-dried, black-or-white solution – shades of gray is the norm.

      16 seems to me to be the Magic Number, if that’s what you’re looking for – Sweet 16, You’re 16 (You’re Beautiful and You’re Mine), Sweet Little Sixteen, Christine Sixteen. . .

    • Bruce Moran
    • March 22nd, 2012

    I really hate to break the bad news to you, but Mens Rea is dead. Mens Rea was in the same car crash that killed Common Sense.

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