15 May 2017

Is the law The Law?

I had a minor debate with a friend over at Facebook over this article. I tend to stay away from those who call themselves or go under the banner of 'freethinker'.  One gets what one pays for, after all. My position was that the article was a badly written hit piece against the police that glosses over a number of complicated issues and assumptions. I left the debate quickly, because I find Facebook does not allow for complexity, and I needed to be able to elaborate my position a little. Actually, in keeping with my usual long windedness, I will elaborate a lot  Those who don't care for long-windedness may quit reading now. Those who proceed should keep in mind that my experience in the fields about which I am about to speak is limited, that Dunning-Krueger is in play, and that, when it comes to my opinion, as is the case with 'freethinkers', you truly get what you pay for.

The incident which inspired the article was simple enough in its facts: a man was selling fruit by the side of the road. An officer told him he was in violation of some law. Further investigation revealed that the man was on probation, (what his original altercation with the law was is not stated, although the author of the below article states his thoery) and the terms of his probation were such that he could not violate any further laws. Finding him in violation of his probation,the officer attempted to arrest him, the man resisted, a photo of the man bound behind his fruit stand whilst an officer examined the goods went viral, people reacted to it, and poof! article.

The article uses what I found to be inflammatory terms- the arrest is referred to a kidnapping, and resisting arrest is called resisting a kidnapping- to describe the incident. The writer lauds Facebook for the general response to the incident, claiming the man should not have been arrested for committing a 'victimless crime'. The author and much of Facebook believes the man should not have been arrested. Let's start with that.

That assumption means that people believe the cops should use their discretion in deciding which laws to enforce, and whether or not to enforce them. Some may argue that they already do, but that's not the question. The question, right now, is should they?

The answer to that varies from culture to culture, and embodies cultural attitudes towards the law. For people who come from Northern Europe and the English speaking world, the usual assumption is that the law is The Law. You can trace this sentiment at least as far back as Magna Carta, when the belief was enshrined, and no free man shall be deprived of his life, liberty or property except by due process of the law.' Even the King was bound by the law, and not the other way around. This tradition results in a tendency to treat the law as quasi sacred, and a caution when it comes tomaking laws. We tend, on the whole, to make as few laws as possible, and then enforce them even when it makes absolutely no sense to do so, because the law is The Law.

Other countries and regions take a different approach. The Latin tradition, for instance, goes in the exact opposite direction. The way it has been explained to me, people in the more latinate countries make as many laws as possible, then interpret them as broadly as possible so they may enforce them as rarely as possible. The law in many cases becomes more of a set of guidelines than a hard code.
If you want a concrete example of this attitude, consider how the average North American will, without a second thought, stop their car at a stop sign in the middle of the Mojave desert, despite the fact that they are the only car within fifty miles of the spot, and compare it to Italian driving in general. There are advantages and disadvantages to both ways. We may chafe against the rules we must obey, but, on the whole, we may enjoy that our roads are generally orderly and would not want the near total chaos of the Italian drivers on our streets.  Allowing the police to decide for themselves which laws are to be enforced and which not will also have consequences- both for good and for ill.

So our laws tend to be enforced as much as we are capable of enforcing them. That is how our system was designed to operate.   We may ask if this is just, which would lead to the question: why is selling fruit by the side of the road illegal in this area, and should it be so? However, my question is this: what caused this law to be made in the first place?

The answer that I got as to why the law is there in the first place is that it was the general overreach of some bureaucrats and a tax grab. That is possible, but in my experience bureaucrats and politicians do not make laws and tax grabs unless they are invited to do so by the populace. It seems likely to me that there was some cause out there at some time, some form of public nuisance, that caused people to demand that 'something' be done, and thus this law was passed. It is also possible that fruit stands were outlawed by a bill that was aimed at another target.  Where I live, restaurants and other places that sell food are regularly inspected and must post the results of their inspection where the public may see them.  This law is actually quite popular among patrons, but it inadvertently outlawed things like children running lemonade stands in the summer.  Back to the case at hand: were this in my neighbourhood, I would not be averse to changing the law, but I would like to know why the law was made in the first place, and then know if the conditions that lead to a demand that this behaviour be banned are still in play.   As always, I tend to urge caution when it comes to change, which does not play well with those outraged because a man was arrested for the heinous crime of selling fruit by a road.

 So, what should have happened in this case?  I confess I don't know.  What happened is, in its face, very simple, but the issues that I see involved are quite complex, and while a discussion of this event and its issues should happen, the social media are a poor place to have it.


Anonymous said...

"That assumption means that people believe the cops should use their discretion in deciding which laws to enforce, and whether or not to enforce them. Some may argue that they already do, but that's not the question. The question, right now, is should they?"

Am married retired police officer. He tells me that 20+ years ago when he was working, it was routine that cops would use judgement in enforcing laws. If you had a good attitude and seemed genuinely surprised that you were speeding, it was common practice to let people off with just a warning.

Selling a small quantity of vegetables on the street without a license? Twenty years ago that would have been: "Sorry, didn't see it!"

I suspect that people nowadays are a bit more likely to want The Law inforced because, fairness! Nowadays, it is unfair to someone, somewhere, that a police officer would actually use private judgement to NOT enforce the law under some circumstances. Because then people are then not treated with absolute equally, and equality must be above all other considerations nowadays.

Bear said...

Thanks for your comment.

I've known some police. Most I would trust to use discretion. Some, however, not so much. But my point here isn't that issue so much as to point out that both allowing cops to use discretion, or not allowing them to use their discretion have consequences. I was also trying to state that perhaps the law should be looked into before it is given a knee jerk change, which may have been what brought about the law in the first place. I suspect that this law did not specifically outlaw the roadside fruit stand, but passed a series of regulations that incidentally outlawed such things. Where I live, there's a law that all places that sell ready made food (restaurants, etc) are to undergo regular health inspections. I would not argue against that, however, the same law technically makes it illegal for a kid to run an uninspected lemonade stand. Not their intention, to be sure, but still.