The Value of Breaking the Law

Interesting essay on the impossibility of being entirely lawful all the time, the balance that results from the difficulty of law enforcement, and the societal value of being able to break the law.

What’s often overlooked, however, is that these legal victories would probably not have been possible without the ability to break the law.

The state of Minnesota, for instance, legalized same-sex marriage this year, but sodomy laws had effectively made homosexuality itself completely illegal in that state until 2001. Likewise, before the recent changes making marijuana legal for personal use in WA and CO, it was obviously not legal for personal use.

Imagine if there were an alternate dystopian reality where law enforcement was 100% effective, such that any potential law offenders knew they would be immediately identified, apprehended, and jailed. If perfect law enforcement had been a reality in MN, CO, and WA since their founding in the 1850s, it seems quite unlikely that these recent changes would have ever come to pass. How could people have decided that marijuana should be legal, if nobody had ever used it? How could states decide that same sex marriage should be permitted, if nobody had ever seen or participated in a same sex relationship?

This is very much like my notion of “outliers” in my book Liars and Outliers.

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Posted on July 16, 2013 at 12:35 PM • 32 Comments

Comments

Bryan Quigley • July 16, 2013 1:12 PM

And everyone who ever has driven* would be in Jail. It’s important we start changing the laws so that AS we move to a “perfect enforcement” society, we aren’t all thrown in jail…

*Speeding (1 mph over the limit is still speeding, and now you are a repeat offender…)

Steven Hoober • July 16, 2013 2:21 PM

I am often reminded of a conversation I had with some local police I know, while one was relaying a story of a particular criminal. Someone asked how he managed to just pull him over based on essentially vague suspicion. After a brief explanation of probable cause, he was asked how you get to that initiating event. He said something like

“No one in the world can drive 50 feet without breaking some traffic law or other.”

Makes his job easy, though.

paul • July 16, 2013 2:39 PM

If you had a perfect enforcement society, either the laws would change, or else you would have to codify the “get out of jail free” privilege of various kinds of people the way it was in the days of that Ancien Regime and its counterparts.

Okian Warrior • July 16, 2013 4:12 PM

I was thinking about this very issue as regards the George Zimmerman trial. Consider the situation from the neighborhood point of view:

Families want to be safe, so:

1) The families in the neighborhood spent extra money to live in a gated community.
2) Part of their state & local taxes go to fund police services. Collectively, enough money to hire a local constable in their area.
3) They suffer many break-ins, police are slow to respond, police services aren’t enough to protect the neighborhood.
4) They spend time and money over and above their taxes to field neighborhood watch people to alert the police of suspicious activity.
5) More break-ins, police are slow to respond, no arrests are made, nothing changes.
6) One resident on patrol confronts a suspicious character, gets attacked, and kills in self defense.
7) Despite abundant evidence in favor of the resident, the police are pressured to put the resident on trial, costing the city $600,000 and the resident $500,000.

What is the take-away here?

That we must stand by and watch helplessly while we are being robbed, beaten or raped?

Disregarding the details of this particular case, the neighborhood has no reasonable way to protect their families. They’re already living in a dystopian reality where the police are 0% effective.

From this point on, they will have to break the law just to be safe.

NobodySpecial • July 16, 2013 6:39 PM

And if we had had perfect detection of terrorist threats – you chaps would still be drinking tea and spelling correctly.

Brian • July 16, 2013 6:41 PM

The other side of the argument is that the ability to have relatively widespread law breaking lessens the social pressure to change the law because people benefit from the hypothetical change already.

Speed limits (at least in much of the US) are a good example. They’re ludicrously low in many places, but the annoyance factor is lessened because many people ignore them and enforcement is relatively lax. If speeding resulted in a ticket every single time you did it, there would be a much bigger push for more sane speed limits.

In other words, if enforcement of particular laws is TOO lax, it minimizes the incentive to change it at all. The “outliers” in Bruce’s book end up being a large percentage of the population and “normal” behavior can get you arrested. Which sort of sounds like a different kind of dystopian future.

Figureitout • July 16, 2013 8:07 PM

A police state incentivizes everyone to be really cautious, take no risks or be adventurous or creative, and stay inside b/c hopefully they won’t raid your house tonight. Basically the opposite of the history of humanity pushing the boundaries, pushing out into new continents, new planets, new galaxies. So we’ll die and be forgotten by other life forms.

MingoV • July 16, 2013 8:47 PM

The author’s premise is based on a societal desire for laws about everything. There would be no societal value to breaking laws if there weren’t so many unnecessary laws in the first place.

Same sex marriage: Why not, there’s no law about who can marry.
Marijuana use: Why not, there’s no law against using drugs.

We’ve had decades of “There aught to be a law!” taken seriously by legislators. We’ve had decades of “This law is for [some tragic victim]” for political purposes. We need a national movement to discard all laws and regulations and then enact the handful we truly need.

Nick P • July 16, 2013 9:17 PM

@ NobodySpecial

“And if we had had perfect detection of terrorist threats – you chaps would still be drinking tea and spelling correctly.”

Lol. I was waiting on that. I said about that same thing the first time I saw this article. Although, I rather think we’d be missing out on inventing iced sweat tea, the top two music styles, and the Internet. 😛

NobodySpecial • July 16, 2013 9:31 PM

inventing iced sweat tea,
But does it have to be THAT sweet? Warm beer is a perfectly good alternative.

the top two music styles,
Yep – Country AND Western

and the Internet.
Packet switching was invented by the UK National Physical Laboratory. Although it’s take up in England was limited since it would be rude for a packet to turn up unannounced and so packets had to routing tables had to be agreed in advance by post

Nick P • July 16, 2013 10:48 PM

@ NobodySpecial

I was thinking Rock n Roll and Modern Hip Hope. Those were good guesses, though, and how could I have left Country out!? ARPAnet rather than the underlying technology to clarify. Didn’t know UK invented packet switching, though. That’s pretty cool.

“Warm beer is a perfectly good alternative.”

We like our beer cold too. However, my blend of tea is stronger in flavor and has less sugar.

jared • July 16, 2013 11:38 PM

The most important concept from a graduate history course was this:
The enactment of a law banning an activity means that the activity, at the time, noticeably occurred.

johnp271 • July 17, 2013 1:40 AM

This is a trivial observation more to be expected in a high school civics class essay (assuming they still teach civics in high school). Why these three silly examples, with dates of the states’ establishment except to give some pretense of preciseness (or add to word count in a high school essay)? Why the stop at individual laws, the notion is much more general than that. Would the US exist w/o law breaking (Boston tea party, etc), would the Soviet Union have come into existence w/o first law breaking, would Nazism have gained power in Germany w/o first breaking laws of the regime in power at the time? Where does one stop with this? A much more interesting question would be the following. In the dystopian universe the author posits would there ever be any changes to the laws that exist initially?

Woo • July 17, 2013 4:26 AM

“How could people have decided that marijuana should be legal, if nobody had ever used it? How could states decide that same sex marriage should be permitted, if nobody had ever seen or participated in a same sex relationship?”

Simple. Try it out somewhere else. The premises don’t say people aren’t allowed to leave the state or country.

Clive Robinson • July 17, 2013 6:02 AM

@ woo,

    The premises don’t say people aren’t allowed to leave the state or country.

To quote the words of a song “You can check out any time you want but you can never leave”.

To be able to go somewhere else two things have to happen,

1, You have to be able to leave where you are.
2, You have to be able to enter somewhere else.

Oh and as Edward Snowden has also found,

3, You have to be able to travel between where you are and were you are alowed to enter.

A “Stateless Person” can in theory get a travel document such as a passport, but the process is difficult at best and impossible for millions.

Winter • July 17, 2013 6:23 AM

“Interesting essay on the impossibility of being entirely lawful all the time, the balance that results from the difficulty of law enforcement, and the societal value of being able to break the law.”

This is a peculiarity of certain legal systems. It is very much true in the USA. It is not true for every country.

For example, I never hear such quotes from continental Western Europe (I do not follow the UK). Nor do I see reports about non-sense arrests followed by fake charges of “resisting during arrest” etc. or innocent people getting convicted to years in jail because they “lied to a federal agent” when harassed about a crime they did not commit.

Mike B • July 17, 2013 6:42 AM

Jim Crow laws were very well enforced and few if any Blacks dared to break them until the organized Civil Rights movement decided to start violating them en mass.

There is nothing magical about laws, they are just a system of disincentives constrained by availability of enforcement resources. It’s a subset of economics and non-sustainable legal regimes don’t last for very long. As long as you actually need $ to enforce laws at some point the enforcement runs out.

Earwig • July 17, 2013 6:46 AM

“they “lied to a federal agent” when harassed about a crime they did not commit.”

We have another category you missed:

“Lied to a federal agent” when harassed about a non-crime they did commit.”

e.g. William Jefferson Clinton.

Frank • July 17, 2013 7:20 AM

Very good article from a very good security researcher.

On the subject of “I have nothing to hide”, the people most loudly saying this are the ones most likely to be under surveillance. Politicians, pundits, and even the people working for the system. They well know they have a lot to fear about these systems.

I do not know about anyone else, but when I see people get up and talk about how righteous they are I do not actually believe them. What I see is someone who is guilty and arrogant.

In terms of breaking obscure laws which could be used against you: what about people twisting your words to make you say something you are not saying. Goodbye sarcasm and metaphor. Hello cross.

I read a defending article this morning from Germany. The writer argued that “no one has been hurt by this system”, and also was dim witted enough to point out that it helps stop “terrorism”. Problem is, if you do not know how it is being used to enforce the law, how can you say how it is being used to break the law?

Because you know surveillance states aren’t known for killing people based on religion or politics.

Nobodyspecial • July 17, 2013 7:50 AM

@Frank – same way that you know Odin is the one true God.
He fights the ice giants – you don’t see any Ice giants do you ?

For laws • July 17, 2013 8:07 AM

I have not seen many comments for laws. I like many of the laws on the books. I want people to drive slow on my street, I drive slow on your. I would like to find laws enforced consistently. It is not hard to look at your high school class. The “Good kids” party gets raided. The parents are called and the kids go home. The “bad kids” party gets raided and they all get tickets for underage drinking. That type of stuff breads contempt for the law.

TheDoctor • July 17, 2013 11:59 AM

The best way to undermine the authority of the law is making laws that cannot be enforced.

Dirk Praet • July 17, 2013 12:30 PM

Snowden recently declared:

“Individuals have international duties which transcend the national obligations of obedience. Therefore individual citizens have the duty to violate domestic laws to prevent crimes against peace and humanity from occurring.”

The first part is a quote by US judge Jackson from The Nuremberg Trials:
On the other hand the very essence of the [Nuremberg] Charter is that individuals have international duties which transcend the national obligations of obedience imposed by the individual state.
( Source: The Yale Law School Avalon Project, http://www.yale.edu/lawweb/avalon/imt/proc/judlawch.htm )

I am not sure where the second part of the statement comes from, and the earliest reference I have found is by 1997 Nobel Peace Prize Laureate Jody Williams.

On the essence of the matter: Thomas Jefferson, Mohandas Gandhi, Rev. King and Nelson Mandela were all lawbreakers in their time. The world would have been an entirely different place without them.

name.withheld.for.obvious.reasons • July 17, 2013 3:43 PM

My mother, a victim’s rights advocate, dealt primarily with cases involving miscarriages of justice. She did not lack for work–she also provided legal assistance, not pro-bono or pro-forma, but without compensation. One of the benefits of this approach was that she was ‘untouchable’ from an influence perspective. Several of her campaigns included well to do individuals that plied their money into influence in government gaining concessions for any number of schemes. Her success is well documented and her peers give her great deference regarding her legal opinions. She’s passed and I am glad that she has not been a witness to what our modern society (I that even applies) has become.

Her life as an advocate in a series of actions in support of “Justice for all” is well missed. The take-away from her life is that the scales of justice, no matter the claim to objectivity, is heavily weighted to the “state”. As she did not receive recompense for her work her reputation was unique. Her campaigns were vast and varied, when I was England writing her obituary it became obvious that her breadth appeared to have no limit. Taking on the crown court (Law Lords in particular), Lloyd’s of London, and a controversial campaign in jurist malfeasance called “Secret Briefings.”

What is common in her experience is the extent and breadth of corruption and injustice in our own systems. Systems of justice have a tendency to look inside, out. This is a problem that parallels several other threads on the blog but I thought I could bring a salient point to this issue. Her work was needed, no advocates for the disenfranchised. We rarely look at the “effects” side of “Justice” or its application thereof.

For years we discussed the lack of formalize in law, unlike the physical sciences (I likened to Rayleigh’s elastic and Maxwell’s visco-elastic wave equations as an example–they’re not simultaneous). We discussed how fraught the Justice systems around the world are less than sufficient (I’m not advocating a perfect court with perfect laws) and lack the vigor found in the physical sciences. One of the papers I have been working on is an analysis in constitutional law, using semantic abstractions (this is a subject process as language has no “pure” interpretation) with laws and judgments made in these cases. Maybe this is something for your new book Bruce.

Given that “everyone” is guilty, a system of justice requires a measurement–and a response–a response that is unjust must be made.

Sky • July 17, 2013 3:45 PM

@For laws

You say you like many laws, not all of them though. You may not, but some people decide to challenge those laws they don’t like. Which doesn’t make them pro-anarchy. I am for respecting the law, but some clearly don’t make any sense or have long lost their meaning but are still in the system.
The example you report is not about people respecting or not the law, but rather law enforcement respecting the law, which is a different story.

moo • July 17, 2013 4:56 PM

Reminds me of the ending of Juice Rap News 15.

Bruce has linked to it before, but anyone who never watched it might as well watch it now:
http://www.youtube.com/watch?v=o66FUc61MvU

“We’re told we need safety, which is precious, yes–but can a society that can enforce all of its laws ever progress? Hindsight shows that many figures guilty of thought-crime turned out to be luminaries and heroes, before their time. But if the surveillance state had reigned then in this form and design, just think of all the progress we may have all been denied.

Could lobbies for womens’ or gay rights have appeared and thrived? Would revolutionary ideals have materialized? Would science have pioneered, or even survived, if every word had been monitored by thought-police and spies?

Big Brother brings chilling-effects, freezing our collective hopes. He doesn’t protect our safety, but protects the status quo. And threatens this Internet, the one channel yet un-controlled, whose openness we are now called on to effect and uphold.”

Frank • July 17, 2013 4:59 PM

Frank “the Man with a Plan” Jones … Because you know surveillance states aren’t known for killing people based on religion or politics.

Nobodyspecial • July 17, 2013 7:50 AM
@Frank – same way that you know Odin is the one true God.
He fights the ice giants – you don’t see any Ice giants do you ?

Odin was misreported. He never mishandled Ice Giants. This was an unfair, vicious rumor his enemies spread about him.

Frank • July 17, 2013 5:16 PM

For laws • July 17, 2013 8:07 AM
I have not seen many comments for laws. I like many of the laws on the books. I want people to drive slow on my street, I drive slow on your. I would like to find laws enforced consistently. It is not hard to look at your high school class. The “Good kids” party gets raided. The parents are called and the kids go home. The “bad kids” party gets raided and they all get tickets for underage drinking. That type of stuff breads contempt for the law.

I think what Doctor (who?) stated well summed up the problem here: The best way to undermine the authority of the law is making laws that cannot be enforced.

When you have tens of thousands of useless laws, then the laws are selectively enforced as you stated.

Really, though, if you expect a paper based, ‘written law’ legal system that explicitly defines good and bad in every possible situation — that is simply never going to happen.

Good legal systems depend on the intelligence (and virtue) of the enforcers. It depends on empathic people.

One big problem you have today is the sociopathic breed of person, and this sort tends to be very attracted to roles of law enforcement (and politics, and intelligence, and…)

The sociopath is very deeply interested in written rules, and finds dynamic, empathic judgment impossible. Because they do not have a shred of empathy in them.

Layer 8 • July 19, 2013 6:46 AM

The complete surveillance of any communication gives the NSA (& anyone who is able to access the stored
informations) the possibility to create personal profiles. I am sure any person can be filtered by classification to make dragnet easier.

But what could happen, if terroristic organizations would have access to all profiles?

If you break a law this will be added to your profile and perhaps change/add a classification.
If breaking the law in order to do the job (I think of spies) this probably won’t change the profile (in a negative manner).

If you don’t break a law your profile won’t show this … but you could read between the lines.

Back to my question;)
If a terroristic organizations would have access to all profiles they could search for any of their
members to compare the profiles. People who worked as terrorists, but do have a clean profile
could be debunked as agents.

On the other hand, they could search for people matching their way of thinking to recruit them
without the risk of being detected, because the profile gives them enough informations to start
contacting them quietly.

Maybe after the next “9/11”-incident the access will be generous and the really bad guys have this
access. In this case we all have a really big problem much bigger than Mr. Snowden could ever create.

@Bruce
Many thanks to you, that you never gave up the fight for more security and privacy. I would be (much more) frustrated if I had such a deep insight about what is going on and technically possible.

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