There Oughtn't To Be a Law

It happened again, a couple of weeks ago, as it does with dreary regularity – and that it happened just before Christmas made it especially jarring. A policeman in a borough adjoining Pittsburgh was called to respond to a “disturbance” at a private residence which turned out to be a drug deal gone bad. By the time it was over, the man who had welshed on the drug deal was dead... as was the policeman. And my first reaction to stories like this is always, could this needless waste of life have been avoided if our national (and local, by default) “drug policy” was based on genuine public health considerations, rather than residual Puritanism, a kind of societal sado-masochism, and mostly just plain lunacy? Not to mention the zealous and unending quest for power and for “jobs” that characterizes such a large measure of our legal system? Now, I am not about to claim – as some seem to – that if only it weren't for our “insane war on drugs” -- as Harry Browne characterized it – all would be placid, peaceful, and well in the body politic. Just as the poor will always be with us, so will criminality – which can be broadly defined as the desire to reap more than one sows, with the added proviso that this desire be (1) acted upon, and (2) acted upon in an illegal way, i.e. in violation of the codified norms of the society at that time and in that place. For, as much as I believe in Natural Law, it can also be argued that there are few, if any, acts that are always, at all times and in all places, illegal... and likewise that that are few, if any, acts that are always, at all times and in all places, legal. This, I contend, is a symptom less of the conditionality of human societies and of existence in general than of the almost universal failure to correctly apply morality – as properly defined – to the construction and implementation of legal codes. So that, while the law appears arbitrary and cupidic – and those of the anarchist bent might contend that it is always so – there is, in fact, a grain of truth to the notion that the law, properly derived, serves to protect the many against the few, and the few against the many. The law is necessary not only because differences of opinion occasionally arise... or because ambiguities based on faulty judgment by otherwise good men arise... but because there really are men of ill will, driven by greed, lust, or just plain cussedness – all those tendencies that are summed up by the term “concupiscence”. Call this the "original sin model" of jurisprudence -- go ahead; I don't mind.

So because human fallibility as well as evil intent will always be with us, the law will likewise always be with us. However, it is the unique quality of laws of prohibition that they tend to criminalize people that would otherwise never come close to being criminals – as witness the madness of Prohibition in early 20th Century America... and much of what constitutes the War on Drugs of our time. And this is also not simply based on the stock theme of so many homilies, that most people believe in, and abide by, all of the Ten Commandments save one – that one (whichever it is, and it's not always the one about adultery) that requires them to relinquish their will in the interests of society. I'm talking about people who, by and large, are perfectly willing to, day in and day out, abide by all ten, and much more besides... except that even while doing so, they inevitably run into difficulties that are caused by ignorance, neurosis, and ill will in high places... by which I mean, laws that any sensible, truly humanitarian society would never dream of passing or enforcing. And curiously enough, these laws typically, when you get right down to it, are a form of persecution of some weak or despised minority – the strategy being (whether conscious or not), if you don't like a person or a group, you pass a law that will criminalize one or more of their favorite or preferred activities. What comes out of this process, then, is legalized persecution – but there is an associated tendency to forget, or ignore, this fact, and rather to attribute to the law in question noble and “necessary” qualities that it never had, and very possibly was never intended to have.

Another point is that there are, indeed, “criminal types” in any society – and if they aren't breaking one law on any given day they will likely be breaking another. So if you, for instance, struck all drug laws from the books it would not magically turn all of the drug dealers into law-abiding citizens; they would come up with another scam... another way to cut corners and pave the way to “easy money”. I'm under no illusion, for example, that most of the people in the drug trade are honest businessmen who just happen to be dealing in illegal goods; there may be some, in fact – but I would have to take a much closer look at each one before I decided whether their activities were benign or malevolent. Even the more ambitious types during the hippie era – the “righteous dealers” -- were not always nice people, long hair and beads and sitar music notwithstanding. Opportunities to make a fast buck bring a certain type out of the woodwork, and I don't mind applying the liberal label “antisocial” to many of them.

Drug users, on the other hand, are generally another matter – and of them it really can be argued that if it were not for the drug laws most of them would be perfectly good citizens; i.e., they “work and play well with others” (another liberal/educational establishment term)... they do no harm... and they mean no harm. And yet they too are hounded and persecuted and criminalized by the establishment for reasons which remain obscure until you start thinking about issues like political power and even – for those with a more esoteric bent – the “emotional plague” concept proposed by Wilhelm Reich. Another way of putting it is that a large portion of people are simply not content to leave everyone else alone; they have to exert themselves against them... mistreat, bully, and tyrannize... spoil everyone's fun (to put it mildly)... or, to put it less mildly, declare that everyone else is “wrong” (“except me and thee”, as the saying goes), and that they should, therefore, be punished. This attitude, of course, is in perfect “synch” with Puritanism in the broad sense, and with authoritarianism as well. And it also feeds into the perverse desire to raise oneself up by putting others down... assuming that the only way I can feel good about myself is by making everyone else – or a good proportion of them – miserable. It's a basic metaphysical attitude about the world and about life -- that it's a zero-sum game, therefore I can only gain by others' loss. Nothing, in other words, is "good", it is only "less bad". It's what Eric Berne referred to as the "I'm OK, you're not" attitude -- the most destructive and pathological of them all. In extreme cases, this premise produces the psychopath; in less extreme cases it produces politicians.

Now, the United States, with its historical heart of Puritanism, and with the authoritarianism that comes from deracination – i.e. when you give up racial, ethnic, and religious loyalties and substitute “loyalty” to a vague and chaotic structure of “ideas”, supported by a governmental infrastructure – has always been the ideal breeding ground for various kinds of collective madness and hysteria, and the War on Drugs is simply one of the more recent manifestations. What I'm saying is that it's not just “political”, and certainly not just economic or social or anything else; it's profoundly psychological. And one sign of this is that certain portions of our legal code have been declared out of bounds when it comes to any discussion of change – especially of lightening the load on our ever more heavily-burdened populace. (Even soldiers in Vietnam were told to “smoke 'em if you've got 'em”, reflecting at least a glimmer of residual humanity in the small unit leaders who were about to take them into battles that many might not survive. But catch any of the generals saying that!) In other words, you can talk about changing any other part of the legal code, but this part is off limits -- because it has nothing to do with objective right and wrong, and everything to do with collective psychopathology.

The result of all this is that, on top of what is already a huge, thick, intractable layer of laws that might have some small measure of validity, we have an additional, especially suffocating layer of laws having to do with individual conduct – conduct which would be, much more often than not, of no harm to others or to society in general... and yet, we are told, we “need” those laws, and the massive infrastructure that goes along with them, in order to... what? To maintain “law and order”, of course! To keep things under control, and so on. But that could be said about any law, no matter how absurd or arbitrary. A law prohibiting people from clipping their toenails on odd-numbered Tuesdays would certainly enhance “law and order”... and it would take a big bite out of uncontrolled toenail clipping. But would it be just? Would it even be sane? And – thinking about the “world stage” now – would it enhance our image overseas, or make us look like a bunch of hysterical neurotics, the way our War on Drugs now does? And yet these considerations never seem to occur to our legislators in their hallowed halls; they are “lawmakers”, after all, and if they do not spend day and night making laws, they are somehow remiss in their duties. The result is that we have a legal code that makes Hammurabi's stone tablets – and Moses' as well – look like bubble gum cards.

It could be said that a measure of the trust any government has in its citizens is the number of laws on the books designed to regulate the activities of those citizens. By that criterion, American citizens are the most distrusted – by their own government – people on the face of the earth, and possibly the most distrusted people in history. And the argument that the laws of an enlightened society are there for the collective good of the populace falls a bit flat when one reflects that, if the entire legal code were thrown into a dumpster (it would take quite a few just to hold one copy), not one law in a hundred would really be missed – except by whoever had the “special interest” and the influence to get it passed in the first place. And this is why we are, daily, faced with the paradox of people attempting to gain “freedoms” and “rights” through the passing of more laws. Every law that is passed will add to the sum total of restriction... every new “right” has to have a “wrong” that is now prohibited... and every alleged “freedom” entails a – usually unacknowledged – long list of things that are no longer allowed. The answer – as any good libertarian knows – is that, if you want more liberty, you need fewer laws. And again, this is not to entertain the anarchist's illusion of a law-less society, because that would indeed be “lawless”, with only raw power and violence having any chance to prevail. If we could – again in good libertarian fashion – reduce the legal code to only those laws that served to implement the Golden Rule, for example... that might reduce paperwork by, say, 99%. (The same could be said of any government programs that are unconstitutional – again, you'd have a reduction on that order.)

The main advantage would be that we would, finally, start treating American citizens as adults, and not as either criminals or retarded children. And, by the way, many fewer policemen would be killed in the line of duty because they wouldn't be charged with enforcing laws that should not exist.