Arbitrary and Capricious

23 Aug

Recently I learned you can say the “F” word on the radio in Canada. Well, French-speaking Canada… and English-speaking after 8 pm… which got me thinking that many laws are pretty silly or rarely enforced. So… why do we keep writing them?

Easy answer: someone really wanted that law. One would think that it’s because of a specific incident, but often… no! It’s often in anticipation of an event. Unfortunately, it’s almost never in anticipation of a coming disaster or important issue, but rather something really, really minor. I’m not gonna bash Canadian law when there’s such good examples here in the United States! There’s a great Twitter feed for this called A Crime a Day, where the guy likes to comb through the US Federal Code and find obscure federal laws to break. Sometimes he has to stretch the crime to fit the code, but it’s still enlightening.

Harvey Silvergate wrote a book (I believe he’s quoting a judge) that points out that the average American breaks three laws a day. Why? Because no one… not even the lawyers, know what all the laws are. So here’s the frightening fact: You can be arrested and charged with a crime at any time for the normal things you do everyday. I’m grateful to live in a country where I don’t fear the police (and if you’re American, considering how many protesters are currently not shot, you don’t either) but as tensions get higher, that’s getting less and less certain.

I can go on many paths here, but my basic libertarian bent is “the more laws, the less justice.” Cicero said that two thousand years ago at a time when laws were literally carved into stone. However, it didn’t mean what we mean we say “carved into stone.” The law was still changeable; old laws that were unpopular with the current politics were chiseled off the Twelve Tablets (as their law was called). The reason you carved it into stone was so that everyone could see it in public, they could read the law, and no one could be in ignorance of what it said.

Penn Gillette is fond of saying, “Could this be solved with more freedom?” Even though I disagree with him on many things, I think the answer is usually “Yes.” We need to seriously cut down the number of laws that are on the books in this country, this state, this county, and the city. Often legislators put forward a bill just to get their name recognized… because that’s the only way to get reelected.

This happens with bills I’m even in favor of, such as my own Arizona senator (Krysten Sinema) passing The Legion Act which expanded terms of historical federal service. This allowed veterans of US Armed Forces who previously served in peacetime to be considered having served in times of “federal service” (not always a direct wartime) so that they can join veterans’ organizations which have that as a requirement. As a member of the Sons of the American Legion, I know at least two people directly this has helped.

But no one asked the obvious question – “Um, couldn’t these organizations have simply changed their own membership rules to let them in?” Of course they could! The Legion, the VFW, the Jewish War Vets, the Scottish American Military Society, et al… they all knew this was an issue! They could have fixed it a LONG time ago. Instead, they allowed folks who flunked out of boot camp to be full members, but people who served four years to not be, just because of when they served.

In the end, I fear most laws are “arbitrary and capricious,” (the legal term) and they are only applied when those in power want to make a statement. If we simplify the law, and give judges latitude to make decisions based on the situation (with proper appeals and checks when they don’t), we will have a more just society.

Of course, I could be wrong. Cicero was a terrible consul in the Roman Republic. What do you think? Tell me in the comments below!

BTW, if you want to know everything about swearing on the radio in Canada, a blogger did a great job of explaining it here.

One Response to “Arbitrary and Capricious”

  1. Jordan Hoggard August 23, 2020 at 10:31 am #

    I’ve always smirked at the exclusionary qualities of deceptive simplicity lurking and hiding in plain sight in, “Ignorance of the law is no excuse.” Well, sounds like everyone should get a literacy test prior to incarceration, huh? Oh wait, no, that’s no excuse, either, huh? I mean, if you can’t read, then “ignorance of the law is no excuse” is no more than scrawlings and a mish-mash of marks… for which in your inability-to-read-self is responsible for? To end the last sentence in a preposition and now present this one as relatively long infinitive of a fragment. Hmmm, sounds like I’m writing a law.

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