The Purpose and Nature of Law, cont.page 2
People had complained to the police about those few unruly, unsafe bikers, and they were right to register their complaints. They felt victimized and feared being physically harmed, or harmed again. They had no idea that the lawmakers’ solution would be to create a law that drastically restricted every biker’s freedom, and even their own should they want to ride bikes safely on the sidewalks.
Rather than hold only the unsafe bikers accountable, rather than more heavily police the areas in which bikers participated in unsafe bike racing on city sidewalks, rather than apprehend and discriminately charge only those reckless riders with reckless endangerment, city commissioners passed a blanket law that made all bike riding on sidewalks illegal, including safe bike riding.
The law effectively outlaws safe biking, or at least the opportunity to bike safely.
No lawmaker wants to define safe versus unsafe or the conditions under which bikers could, conditionally, ride on the sidewalks. They know that every person of every ability of every intent in every situation cannot be constrained by even a hundred descriptive or exclusionary clauses in the law. No city lawmaker or prosecutor wants the future burden of proving a biker’s intent in a case of pedestrian injury involving a bicyclist on a sidewalk; it’s much easier to say that someone broke a no-sidewalk-biking law, which allows no gray area of dispute. No legal authority wants to examine the alternative to riding on sidewalks, and the relative danger of pushing riders who use bikes for transportation into the roadways, which were constructed for high-speed, heavy automotive traffic.
The police know that the no-sidewalk-biking law is intended to stop a demographic of unruly youthful bikers. This knowledge gives them the discretion not to charge older bike riders and newspaper delivery boys who have what police consider to be approved purposes for riding their bikes on sidewalks. The conditions under which the law is applied are defined tacitly among law enforcement personnel.
Such a law must contain exceptions, else the lawmakers would bear the wrath of certain segments of the population that the law constrains. For instance, the sidewalk law must not restrict all traffic of wheeled vehicles on sidewalks, and it must contain clauses that permit such specific uses. Lawmakers must consider that the needs of people who aren’t able to walk, who must be accommodated. The operation of motorized wheelchairs and Rascal scooters must be exempted under the law, though such vehicles can be operated as recklessly and dangerously as bicycles ridden by teens. Bicycle cops must be exempted because they often must ride onto the sidewalks in pursuit of a suspect.
The exceptions—valid biking purposes and accommodation of the handicapped—admit and concede that the no-sidewalk-biking law is unreasonably restrictive and cannot be applied impartially. So the law, in its application, discriminates against teenager bikers who are subjectively judged by police to be unruly based on a profile of unruly bikers, and favors the elderly, obese, and handicapped. If laws depend upon subject interpretation and personal police discretion on a case-by-case basis to decide whether to exempt certain lawbreakers over others, or whether to vary the amount of fines and sentencing that some lawbreakers receive but not others, the law is not objective.
Philosopher Ayn Rand believes that all “laws must be objective (and objectively justifiable): men must know clearly, and in advance of taking an action, what the law forbids them to do (and why), what constitutes a crime and what penalty they will incur if they commit it” (Rand, LEX, p. 247).
Rand goes on to say that the “retaliatory use of force requires objective rules of evidence to establish that a crime has been committed and to prove who committed it, as well as objective rules to define punishments and enforcement procedures. Men who attempt to prosecute crimes, without such rules, are a lynch mob.”
“If physical force is to be barred from social
relationships, men need an institution charged with the task of protecting their
rights under an objective code of rules.
“This is the task of a government—of a
proper government—its basic task, its only moral justification and the
reason why men do need a government.
“A government is the means of placing the retaliatory use of physical force under objective control—i.e., under objectively defined laws” (Rand, LEX, p. 367).
Any law can be defined objectively. The problem isn’t in
the language of the law but in the proliferation of contradictory laws and
the consequent increase in statism powers that such laws give. James Bovard in
Freedom in Chains writes, “Each new law, each new proscribed behavior
further encourages citizens to rely on politicians for their deliverance, to
cede more of their judgment in daily life to their political and bureaucratic
overlords. Each additional law vesting new power in government agencies, or
creating new penalties for private conduct further preempts and politicizes the
citizen’s life. Each new law authorizing new penalties reinforces the principle
that the State is superior to the individual” (Bovard, Freedom, pp. 41
and 42).
“The more laws, the more uncertainty that permeates private lives, and the more difficult it becomes for citizens to order their own affairs” (Bovard, Freedom, p. 206).
David Boaz of the Cato Institute agrees that laws that work for some people don’t work for others: “Rules that cater to some citizens’ preferences would be unconstitutional or offensive to the free-wheeling spirit of other citizens” (Boaz, p. 268).
Both the complexity and preponderance of invasive laws that constrain thousands of possible acts within the spectrum of private behavior makes pleading ignorance of the law a valid excuse. But complexity is a necessity because there are many ways to infringe on the rights of others. For instance, there are 30 kinds of battery assault charges on the books in some states. The same penalty can’t be imposed for each instance of an assault, because the law must recognize the various situations within which an assault can occur, and penalize in proportion to the damage incurred, avoiding penalty disparities where possible. A poor, hungry child who kicks a convenience store franchiser in the shin and steals away with a loaf of bread shouldn’t receive the same penalty as the executive of the chain of convenience stores who embezzles millions from the chain’s bank account. Enforcement and penalty must be proportional and situational, and no objective law, no matter how detailed, inclusive, and comprehensive its text, can account for every situation and every degree of penalty to be imposed.
In addition to the numerous creative ways people hurt
other people, the same kind of offenses can cause varying degrees of damage.
Multiple laws account for the variations in the way we do damage and the degree
of damage we do. Sometimes, damage is emotional and no monetary value can be
assessed. For instance, a victim is simply morally offended by another’s
specific and legally protected act; a neighbor walking nude in his home with the
curtains open. The neighbor’s nudity in no way causes physical harm, does not
infringe on the rights of others or prevent others from freely attaining their
personal goals, and does not prevent anyone from not looking or closing their
own curtains.
When we participate conspiratorially, our
responsibility in a crime varies in a way that we should be punished in more or
less severe ways. Lawmakers also feel that our reasons for doing bad things
should affect the severity of our punishment, though a bad act, whether
committed out of greed or malicious moral depravity or hatred, has
quantitatively the same outcome; we punish more or less severely based on
motivation alone.
Laws must be flexible, but they must also be necessary, and their purpose important. The purpose of the no-sidewalk-biking and many other laws is to keep people and the general public safe, or make their daily lives safer. Public safety laws with far-reaching, blanket-style application that are drafted in response to a few instances of bad human conduct in limited situations restrict the freedom of everyone who could conceivably act safely and responsibly to enjoy the benefits of taking an active part within a given situation.
The paradoxical consequence of safety laws intended to protect sidewalk pedestrians from bikers, for example, is that bicyclists must change their behavior in ways that make them much, much less safe, if they want to avoid the risk of a fine. The no-sidewalk-biker law wasn’t meant to protect our hypothetical boy in his role of bicyclist heading for baseball practice. It was meant to protect people in their role as sidewalk walkers in areas where punks are likely to ride their bikes on sidewalks.
Restricting access to music and spoken words through
headphone is expected to keep people safe, so an Air Force Base traffic safety
regulation states that wearing “portable headphones, earphones, or other
listening devices while operating a motor vehicle, running, jogging, walking,
bicycling, or skating on AF installation roadways is prohibited.” AF security
forces can ticket offenders. Using cell phones (talking or texting) is not
allowed while operating a vehicle on Air Force bases. Security forces can revoke
the offender’s driving privileges for 30 days for the driver’s third offense.
Such laws, which severely restrict our personal
behavior and limit our personal choices, wrongly assume that joggers and other
recreational sports pedestrians have only one sense—hearing. They assume that
all wearers of headphones listen to music with the volume decibels so high that
no outside competing sound can penetrate. They assume that sound is the only
signal of danger available to pedestrians. They assume that pedestrians care
nothing about their personal health, freely running into the path of oncoming
vehicles, all daring drivers not to hit them. They assume that earplugs can’t be
removed easily, that volume can’t be controlled when pedestrians approach more
highly traveled, and therefore riskier, portions of the roadway. These kinds of
laws assume that joggers and drivers can’t do two things at the same time,
treating adults as if they were small children incapable of caring for
themselves, being distracted beyond responsible attention by sounds that they
choose to hear.
Laws intended to secure individual safety fail because individuals are ultimately responsible for their own safety. Even in his role as sidewalk walker, if hypothetical 12-year-old Johnny chooses to walk to practice rather than bike, he isn’t protected by no-sidewalk-biker safety laws; he is given only the satisfaction of knowing that if he’s run over by a bicyclist on the sidewalk, that the cyclist will be punished with a fine and that his own hospital costs, if he incurs any, will be paid, even if he must convince his parents to file a separate lawsuit against the cyclist, or the cyclist’s parents, or the maker of the cyclist’s bike, or the city for not doing more to protect him, such as levying a stiffer fine on sidewalk cyclists to provide greater deterrence, or for failing to enforce the law more aggressively, or for not making it more difficult for bikers to jump the curb to access the sidewalks; the city could install posts along the sidewalk or fences like they do to keep people from throwing rocks from bridge overpasses that smash the windshields of cars below and cause wrecks.
This bears repeating: laws do not prevent people from
doing bad things to other people, and laws do not protect people from
experiencing harm at the hands of criminals. Laws simply tell people what kind
of punishment they can expect if they are caught doing things that government
legislators determine, based partly on societal influence, to be bad, with bad
being defined as infringing on the freedom, liberty, and property of others. Law
does not catch bad people. Law enforcers must determine that a crime has been
committed, must investigate to determine who the perpetrator is, must take
measures to apprehend the alleged perpetrator, must hold the alleged perpetrator
until trial, and then a prosecutor must try to make a deal with the alleged
perpetrator regarding acceptable punishment or proceeding to trial, and a judge
and/or jury must determine if the defendant is guilty beyond a reasonable doubt,
the extent of guilt, and the punishment, and then the penal system must
determine whether the detention period can be shortened.
All criminals who are NOT apprehended receive the
unequal treatment of continued freedom under the law. They escape the penalties,
proving that when enforceability is unequal, then the law on which it is based
is also unequal in its application—at least for those who can outsmart the
authorities.
The law offers multiple remedies for Johnny in his role as walker, if he has the forbearance, patience, intelligence, money, and time to exercise his right to pursue those remedies. The law favors people who are in a personal situation to see that penalties are exacted, meaning that those who don’t have the time, money, and determination will receive unequal treatment under the law. Personal situations alone make laws and their enforcement unequal.
The right to pursue full and rightful compensation represents an inconvenience. First, Johnny must chase after the cyclist who injured him. Then he has to attempt to subdue him if he catches him. Then Johnny has to report the biker to the police, which means that Johnny has to identify the biker in some way, describe the incident fully, and convince the police that the level of his own personal damage merits their attention. (Most laws aren’t enforced unless there is serious and widespread damage. The revenue generated in fining a sidewalk biker, compared with the time and resources required to apprehend the biker for a petty offense, is insufficient to justify the expenditure in a police budget, which is, in most cities, already stretched thin.) Though these actions will make him late for practice, Johnny begins to feel a sense that justice has been done, that he’s being a responsible citizen.
He’s likely to be disappointed in the lack of seriousness with which the police will pursue a sidewalk-biking bandit. Unless Johnny is seriously hurt in the collision, and unless others in their role as sidewalk walkers have also reported being hurt by a sidewalk biker who matches the description that all provide to the police, the police may not even file a report, and may actually insinuate that Johnny shouldn’t bother them again with such trivial infractions. Johnny is told to suck it up and be more careful the next time he encounters a biker on the sidewalk.
That’s not justice.
Even if Johnny gets his day in court, he’ll learn that the sidewalk biker also has some remedies at his disposal, though the biker clearly broke the no-sidewalk-biking law, if the police take Johnny at his word. The biker might assert that Johnny defiantly stood in the middle of the sidewalk, intentionally blocking the biker’s path before the biker had a chance to avoid a collision. In liability law, pedestrian Johnny may have and the last clear chance to take an action to avoid being injured. If so, and he refused to take it, or acted in negation of avoidance of an accident, Johnny may be held partially liable for his own injury through his comparative negligence. The biker may still be fined for breaking the no-sidewalk-bikers law, but the biker wouldn’t have to pay all of Johnny’s hospital bills or any punitive damages that Johnny’s parents may have advocated. The biker’s defense may simply be that he didn’t do it, and could get away with the lie if there were no witnesses, no cameras, and his bike wasn’t damaged (which, short of DNA testing, could be a presumed outcome of the collision Johnny alleges). Unless Johnny can prove the biker hit him, the law fails Johnny, rewards the sidewalk biker, and justice is suspended, even reversed, since the victim is penalized by the loss of time and money he expends, and the sidewalk biker pays nothing. This situation could be worse, in that the walker must pay court costs and fines for filing a frivolous suit, or Johnny could be imprisoned for defaming the biker.
The law against riding bikes on sidewalks fails in four ways: 1) It effectively makes safe bike riding on sidewalks, which is the norm, illegal, 2) It effectively makes all bike riding more dangerous by forcing bike riders into the streets, 3) It removes responsibility for one’s personal safety from individuals and burdens the government with the task, and 4) It fails to prevent unsafe behavior by rebel young bikers, but merely punishes lawbreakers if they are caught and if officers are willing to pursue penalties.
The real purpose of personal safety laws is to maintain social order. Every personal behavior that could conceivably cause a disruption in the order of anyone’s life is seen as ripe for prohibition. A driver experiences distress, regret, sorrow, and inconvenience when he hits a pedestrian who hadn’t been able to hear the car’s engine because he was playing music too loudly on his headphones and failed to look both ways before crossing the street. Drivers who hit pedestrians may be forced to call for medical assistance and law enforcement to report the accident, and may possibly have to go to court to defend themselves, pay a fine, pay the pedestrian’s medical bills, and incur an increase in their driver’s auto insurance premiums. Traffic may be held up while the pedestrian is removed from the scene.
Outlawing headphones for pedestrians might have prevented
this disruption in the social order, so headphones are outlawed. If society can
keep drivers and pedestrians out of court and out of hospitals, and can keep
police officers free to pursue more dangerous criminals, and can keep the roads
unobstructed, lawmakers will press for such a law. It doesn’t matter that other
laws offers redress avenues for those who have been physically harmed by
another’s negligent or willful behavior, and that the existence of these laws,
though imperfect and unequal in application, make all safety laws against
accidents superfluous.
If we agree that laws don’t stop pedestrians
from wearing earplugs and listening to music, but only threaten to punish them
if they’re caught and the officer decides to enforce the law; if we agree that
laws don’t deter people from exercising what they believe is their right to
exercise as freedom- and liberty-loving Americans; if we agree that lawmakers
are for the most part sane and rational, then we may agree that public
safety isn’t the purpose of most laws.
Safety laws are for the convenience of the courts, to see black and white, lawful and unlawful, removing common sense and discretion from the equation, speeding cases through the justice system, collecting fines, and aiding insurance companies in determining which firm will pay the damaged party’s medical bills. All of these benefits can be categorized under the ostensible purpose of keeping order, a paramount concern for lawmakers. When order is achieved, citizens are kept fearful of breaking laws, and cities can maintain smaller law enforcement officers, diverting the savings to other projects.
Sidewalks were created for safe walking away from
heavy vehicle traffic, with a high curb to provide greater protection to
pedestrians, though this primary walking purpose does not exclude other
divergent purposes, which can be performed safely in collaboration with
pedestrians. Even walkers face the risk of tripping over other walkers. Walkers
and bike riders face risks, but bike riders shouldn’t be forced by law to face
greater risks on roads created for high-speed vehicle traffic on the off chance
that a pedestrian might be made safer. Laws should recognize that there are
risks in living life, in exercising personal freedoms, and that only the
individual who violates the rights and health of others should be made to pay,
and only when and if that abrogation occurs, not when the potential for
such violation exists, as the potential for every human action exists.
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