Way, way back, when I was a young lad still finding my political eyes, I took a political quiz that asked me to rate the degree with which I agreed with certain statements. One of them was, in essence “The law is the law.” I recall finding the statement a bit jarring, but at the time I didn’t find immediate problem with, so I concurred. The results section suggested that this statement, stark, unyielding, and rooted in decisions made by people, wasn’t particularly sophisticated or something to that effect.
This old memory bubbled up through the cluttered miasma that is my gray matter and into my forebrain after some exchanges I had regarding Obama’s commutation of the sentences of a couple hundred federal prisoners. Being a long-time critic of the War on Drugs, three-strikes laws, and mandatory sentencing laws, I applauded the President’s action. Not everyone did. While I suspect that many criticized Obama out of sheer reflex, I only know the arguments they presented, which were a combination of callousness (many conservatives, despite their broad claims of compassion, are remarkably cold when it comes to people who struggle with drug addiction) and “the law is the law” absolutism. After a few volleys about justice, bad laws, obsolete laws, and a mention that adultery is still a felony in three states (which was rebutted, absurdly, with “maybe they should prosecute some adulterers to prompt the removal of the law from the books), I mentioned that “the law” gives the President and state governors the right to commute any sentence or pardon any criminal. Boom, silence, end of conversation.
That mic-drop was not, unfortunately, what I’d call a success. All I did was use the morally unjust (and logically fallacious) “law is the law” argument on its proponents.
Laws are written and enacted by legislators. Many reflect the moral rules by which most societies function (thou shalt not kill, thou shalt not steal, thou shalt not kick thy neighbor in deez nuts). Many reflect the imposition of popular will (thou shalt pay thy taxes, thou shalt stop at stop signs). Many reflect moral attitudes of a particular era (thou shalt not commit adultery, thou shalt not sell spirits on Sundays). Many reflect the personal biases of legislators, or special treatment for cronies and rent-seekers, or favor-trading between politicians, or misinformation, or disinformation (thou shalt donate to mine re-election coffers so that thou canst receiveth thine tax break). Laws are not sacrosanct embodiments of morality or justice. “The law is the law” rejects the reality that there are plenty of bad laws.
The law recognizes this, after a fashion. In addition to the aforementioned powers of commutation and pardoning held by the President and by state governors, there is the principle of jury nullification. If a jury decides to acquit a defendant, its reasoning is not subject to review or reversal, and jurors can conscientiously vote to acquit someone who broke a law they think is unjust.
None of this should be read to imply that laws are merely suggestions. We break laws at our peril, and as I noted, many laws are rooted in just and moral social codes and behaviors. Bad laws, obsolete laws, and unjust laws should be challenged within the political system and repealed whenever possible, but until that happens we must recognize that law enforcement and prosecutors are obligated to apply and enforce those laws. We should also expect common sense, however. Adultery is indeed a felony in three states. There are countless lists of ridiculous laws to be found on the Net, and we are fortunate that prosecutors do use judgment and discretion in enforcing those laws.
To be fair, Obama’s commutation detractors weren’t objecting to the release of people incarcerated for adultery, or flirting in public, or owning too many salamanders. Drug prohibition is a topic of significant disagreement. While I’m not alone in thinking the War on Drugs should end (subscribe to this blog and get a free copy of my book on the subject), plenty of people think that it should be escalated, and they’re likely to take issue with the commutation of non-violent drug offenders. The latter argument should be made on the merits of prohibition itself, however, not on an absolutist, juvenile and fallacious “law is the law, let them rot” basis.
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