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Join the conversation! There are now 13 comments on this chapter's page 16. Prescribing, Not Describing. What are your thoughts?
  1. Chris Katko says

    That is an absolutely mind blowing revelation. Thank you, sincerely.

  2. Dhamon says

    Sooooooo….. Are we going to the Library of Congress, getting out all the law books and regulations and having a barbeque?

  3. Hailey says

    wait a second, what about laws that are meant to regulate businesses, like the sherman anti-trust law (i’m sure there’s better examples, but that’s the only one that comes to mind). And how can we effectively write laws regulating actions that harm society, like increasing smog efficiency requirements for cars? Under this definition, a law like that would be ‘unprincipled.’ hovever rising pollution levels present a clear and present danger to society, and we desperately need a solution to decrease pollution. if creating new laws like the ones shown above is a poor solution, then how can we facilitate needed societal change? there’s probably other examples than the pollution one, but your use of the gas-car-ban example above brought this one to mind. Also, I love this comic.

    • Good question. I would think that pollution laws would fall under society’s current definition of unacceptable behavior (although the level that would be recognized as a threat, and the cause that was liable might be subject to debate) and therefore be appropriate for criminal laws. Unfortunately I see imposing ones values on others as a very human trait.

    • For the purpose of preventing over-criminalization, you could just make it a civilian offense to knowingly drive a gas-powered car with civilian penalties like fines and seizure of the car rather than criminal penalties like imprisonment or execution. More generally, you cannot use criminal law to actively make society change its ways. But you can use civilian law and civilian penalties to actively make society change its ways.

      • You still have the problem that your poor driver has done nothing wrong, and therefore probably doesn’t know they’re breaking the law. Lowering the penalties does nothing to address this core problem.

        • How does making it no longer a criminal offense not address the problem? I think the question of whether or not *civil* offenses should be handled the same way is an entirely different subject.

        • In that case you could just impose a tax on gasoline powered cars instead of outlawing them. Raising the effective cost of anything consistently makes people use less of it through the substitution effect. More importantly, when you discourage behavior through specific taxes you can make the legal incidence of the tax fall on the manufacturer or distributor so that ordinary consumers will never have to worry about breaking the law just by buying and using a common product.

  4. WJS says

    As I understand it, tacking on extras that are unrelated to the main purpose of a bill (forcing congress to accept or reject both together) is a huge flaw with the system, but it’s one that isn’t likely to be fixed anytime soon because they’re all so fond of using it themselves.

    • I doubt that any legislation would ever be passed at all without the ability to tack on extras. Most professional politicians never vote for anything unless something that their constituents have explicitly said they want is in it.

  5. LookielouE1707 says

    I don’t buy this claim that the law was ever descriptive rather than prescriptive. When the king forbade poaching in the king’s forest, that wasn’t prescriptive? Even if a law happens to be descriptive, that doesn’t mean its basis isn’t fundamentally prescriptive – when a legislator hands down any law change it is not merely interpreting changing social standards on what the law should be, except inasmuch as elected legislators are interpreting the will of the people – and inasmuch as that’s true, the distinction between descriptive and prescriptive law is moot. The basis of all law is the state telling you what to do – if you happen to be living in a democracy that’s no less true, it’s just that “the people” are the state, telling you what to do, via their legislators.

    Every time any legislator or regulator makes any law they are merely implementing power we have delegated to them – a necessary step, given the complexity of the work needed to defeat evasion of the law. Because the typical case is not that of Trudy the hawk feather collector, who had no thought that what she was doing might be unlawful (and hard cases make bad law); typically the targets of regulation know the law better than than the regulators, because they are smarter and have more resources at their disposal (and more motive to succeed).

    It’s not true, as suggested, that the law is unknowable – oh, maybe the entire body of all law is unknowable, but in any given specialization people do know it – it’s just that knowing the law is onerous, and the question is how much of a burden is reasonable. Is it reasonable to expect a soup manufacturer to know his supply chain, and the laws of the jurisdictions in his supply chain? I would say the answer is pretty obviously “yes”.

    Finally, the idea that it’s wrong to use the law to accomplish social change, or that this makes the law less knowable, is false: there’s no moral difference between enforcing a new imperative on people who want to disobey it and enforcing a previously existing imperative on people who want to disobey it (claiming otherwise would be fallacious appeal to precedent) and new law is likely to be better known than extant law, which everyone takes for granted: if a new abortion ban, say, comes down, you can bet you’ll hear about it.

    And if the opaqueness of the law is a problem, it’s a problem for all of it, for the nuances of excuse defenses as much as those of strict liability statues, for example. I mean, one could be led to understand everything you wrote in those chapters, with enough effort, but the fact that books must be written on the subject demonstrates a reasonable person would not on his own come to the conclusions the law has reached. If the reach of the law should extend only as far as what is knowable by the reasonable person, it’s going to have to be simplified to the point of uselessness.

    • For the sort of law where ignorance is no excuse, and the sort that gets tons of press (like abortion), yeah, we’ll hear about changes.
      But many changes fly under the public’s radar. If the gig economy in California hadn’t gotten as big as it had, the changes to employee/contractor definitions would be unknown to the vast majority. And in fact they were, until it nearly destroyed Lyft, Uber, freelance writing and musicianship, etc. etc. etc. The news reports only showed up after the fact, when the change was fait accompli.

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