There are laws that exist to indicate what society thinks about a topic – without actually ever being enforced. For example, suicide, adultery, sodomy, illegal immigration or even abortion are or might be laws on the books at a state or federal level. Drinking alcohol in public might be illegal, which is politely addressed by using brown paper bags so police don’t feel compelled to arrest public drinkers.
I can see why this is advantageous. I think it makes sense that we frown on adultery or suicide as a society, but don’t actually ever prosecute it.
The Torah has laws like this, too – we understand that the laws concerning a rebellious son were never enforced. And very people today think that we should use the legal system, even in Israel, to prosecute Jews who do not observe the commandments. Instead, we talk to people, and try to influence them toward holy behavior.
On the other hand, the state can always decide to target someone by nailing them for easy violations of the law that are almost never enforced – like being slightly over the speed limit, or changing your own oil and allowing a drop to hit the ground. In my city, it is a misdemeanor offense to throw out more than 32 gallons of refuse a week – our home can easily hit 5 64 gallon bins each week (home office, many people, many meals).
Harvard University professor Harvey Silverglate estimates that daily life in the United States is so over-criminalized, the average American professional commits about three felonies a day. And I hate and fear the fact that the Deep State can always get someone, Beria-style: “Show me the man, and I’ll show you the crime.”
Torah notwithstanding, I have come to believe that civil governments must seek to enforce all laws – which means that laws that are NOT enforced must be struck from the books. This could be a state initiative or even, over time, become a constitutional amendment. I think we should have far, far fewer laws, so we maximize freedom.
What do others think? Should we use law to set the aspiration, openly acknowledging that we all fall short?
I believe it would be better to eliminate all the laws that are not enforced. And the easiest way to do this would be to establish the principle that uneven enforcement should be a defense against the accusation of law-breaking.
Do you agree or disagree? Email me at iwe@religiousliberalism.org.