Inconvenient Laws
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Broken Laws: A Three-Part Series
Part III: Inconvenient Laws
Published in the Maryland Daily Record April 30, 2004
It’s 3:00 a.m. You’re driving on a desolate country road. There’s not another soul around. You come to an intersection with another desolate country road. There’s a red traffic light, but no red-light camera. So if you drive on through, there will be no adverse consequences for you or anyone else. Do you stop?
If you do, you are obeying a law that has no immediate utility and imposes inconvenience. You may be acting from a sense that it is prudent to stop for red lights every time, in order to avoid the smallest risk of apprehension or collision, because sometimes one is wrong in assessing the risk of such things. This is probably a laudable impulse, but not interesting for present purposes. The alternative is interesting, however: You may be stopping because you have a respect for the law that overrides the claims of your own convenience. I have already disagreed with the claim that all laws, without exception, are morally entitled to compliance or even respect by us as citizens or as lawyers. I have argued that the moral hold any particular law has on us as humans is secondary to the hold of all of our other moral priorities.
But here we come to the area where I would contend a serious case can be made that a generalized respect for the law may be the appropriate guide to your conduct. In many areas of life, and traffic laws are perhaps the finest illustration, there are few moral issues governing the specific contents of the law, but a great moral imperative that there be such contents. For instance, there is really no moral component to the decision whether drivers should stick to the right side or the left side of the road. (The British are not known for being more or less moral than we because of their lane choices.) But lives will be lost unless everyone sticks to one agreed side or the other. It may not matter morally at a busy intersection who yields to whom. But it is vital that someone yield to someone, and that the rules regarding who yields to whom are well understood. And traffic lights are well understood to regulate the yielding process.
In short, this is an area where individual moral priorities that might conflict with the imperative to comply with the law have very little scope. There may be moments when it morally intolerable that you should yield the right of way to anyone: if when you come to that stoplight at 3:00 a.m. you happen to be driving a fire truck to put out a barn fire, about the only vehicle you should have to pause for or yield to is an ambulance carrying the affected farmer to the hospital. But mostly it will not come to that. Usually when the traffic laws chafe, it is only a matter of inconvenience.
And you know that with such laws – laws governing traffic, jaywalking, littering, panhandling, and the like – there is a high incidence of noncompliance. People are out there running red lights, stepping between onrushing cars, spitting in the subway, dropping fast food wrappers on the sidewalk, not scooping up after their pooches, all the time. Usually nothing really bad happens because such laws are broken. But the net effect of this tidal wave of noncompliance is bad. Our roads are more hazardous and certainly slower, our environment is more unsightly, and our lives are diminished, because people do not conform to these slightly inconvenient laws.
Here, I would suggest, is the place where one’s level of compliance really establishes which team one is on. The rule of law is of the most obvious and least debatable utility when it literally and figuratively sets the rules of the road. If one is committed to the best outcomes for everyone, then one will accept the inconvenient restrictions on one’s freedom that such laws bring. A high degree of noncompliance states unequivocally to the world that one places the gratification of one’s own shortest-term impulses above the long-term well-being of the community. And it is extremely hard to justify.
Even here there are no absolutes, of course. For instance, in the streets of most of our cities, the rules of the game have been rigged against both pedestrians and efficiency. Barrages of intermittent traffic with the right of way lasting two or three minutes are routinely hurled along urban ways, often leaving windows of opportunity for pedestrians legally to begin a crossing of only a few seconds. Meanwhile, there are gaps in the intermittent traffic which actually allow safe crossing. This oversimplifies, of course, but is it any wonder jaywalking is almost universal? Is it any wonder police in most cities, who would not hesitate to cite a red-light runner, never write tickets for the “crime” of jaywalking? The problem here is that what looks like a morally neutral policy choice has actually become a malign one. Deference to drivers over pedestrians is so extreme that the laws supporting that deference have lost much legitimacy.
The commons that our streets represent must be regulated, or none of us can enjoy them properly. But it is hard for the centralized planning and mechanized controls we rely on as the legal mechanism to allocate the use of that commons to do so as efficiently as the marketplace that exists at every crosswalk. So even here, there is some room for judgment, some room for a reasonable citizen to delegitimize the laws. But not too much room. We need our traffic laws.
In this brief survey, we have seen the paradox that the laws of the greatest importance may paradoxically have the least legitimacy, and laws of the smallest significance (traffic laws) may have the greatest. But we have seen that in the end there are truly no absolutes, that every law’s legitimacy is always somewhat contingent, eternally awaiting ratification by a plebiscite which can never be held, which could never be fully binding without an unattainable full unanimity, and which would be somewhat outmoded a minute after it was held. Living in the real world, however, we cannot do without the protection of the laws, certainly including the laws of greatest importance. So we must act to some degree as if they were legitimate, even though we know they are not, or not fully, so.
For lawyers, the demand to act as if our laws were all legitimate is more intense. We cannot easily run with the hare and ride with the hounds. Nor is it good for the system that we do so. We cannot be harping on first principles all the time. We must move on and make things work. And things work best when we enhance the legal structure’s incomplete legitimacy with our own behavior. But I would emphasize immediately that this rule is a matter of our behavior only. It does not mean speaking no ill of the laws or of those who make and administer them.
Indeed, it is one of the most powerful legitimizing features of our system that it permits, even encourages our criticism of the system itself. Because we understand that all laws are, to varying degrees, broken from the start, we must strive continuously to mend them, to make them more worthy of us. We do that by recasting them to approximate ever more closely what that hypothetical plebiscite would ratify. It does not much aid the process, and may in fact hinder it, to foster an irrational reverence toward the laws that exist. Such an irrational reverence – call it legal jingoism – is a common but unfortunate attitude. If we are to see life steadily and see it whole, in E.M. Forster’s phrase, we must fight against the seeds of that jingoism in ourselves. As Justice Holmes correctly observed, the law is not a “brooding omnipresence,” nor is it divinely ordained. It is just an artifact, a way of organizing ourselves adopted by flawed humans.
In the end, the laws are mainly written in people’s minds and hearts, not in the statute books or the case reports. The written laws deserve reverence, in and of themselves, only to the extent they mirror the real law, that exists in us, the people. When the laws are broken, that is, out of step with us, we lawyers in particular have a responsibility to recognize the brokenness and to try to mend it.
It should and must be an ongoing struggle: eternally imperfect and unfinished people contending with eternally imperfect and unfinished laws. It isn’t pretty, it isn’t orderly, predictable, or in keeping with any idealized civics-class visions. But it is the hand we’ve been dealt. We must make the most of it.
Copyright (c) Jack L. B. Gohn
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