jennythereader: (Default)
[personal profile] jennythereader
The law does not force people to behave in a particular way. The law codifies what a community already believes about how people should behave and lays out consequences for people who choose to go against this consensus.

This is why the Founding Fathers allowed the Constitution to be amended: because they knew that what the community considers acceptable changes over time, and that the law needs be be able to change with it.

It's also why civil disobedience, protests, boycotts, and similar symbolic gestures can have such powerful effects. The community's attention is drawn to the thing that is being protested against, and with that attention comes discussion and eventually a new consensus. If that new consensus is different enough from the old one the old laws will be removed and new laws will be written that reflect the new community standards. Added at 3:55 pm, 1-9-13: In this country, that consensus is filtered through the lens of our complex governmental system, with its multiple administrative levels and division of duties between multiple branches of government at each level. This results in new societal consenses becoming new laws extremely slowly.

Whatever a community considers acceptable behavior, the people of that community will always fall into four camps: (1)Those who will behave that way no matter what, (2)Those people who will not behave that way no matter what, (3)Those who behave in the way that brings them the greatest reward for the lowest risk, and (4)Those who just do whatever is less effort. The law only (directly) affects the behavior of those in groups 3 and 4. [Side note - I waffled about splitting groups 3 & 4, and still think that line is the blurriest of the ones I'm drawing here.]

Slightly silly illustration of the idea: Currently our society mostly agrees that wolverines make rotten pets. If a law were passed forbidding the ownership of wolverines by private individuals it would only really affect groups 3 & 4. Group 1 never would have owned one in the first place, while group 2 was always going to ignore that law or anything like it. Some members of group 3 would decide that the profit to be made by selling wolverine cubs to group 2 is worth the risk of legal consequences, but others would decide that the potential for profit isn't worth the severity of the consequences if caught. And the members of group 4 would continue in whichever state they were in when the law was passed, which given the pre-existing consensus about the suitability of wolverines as pets, means they'd continue to not have them, even if they kind of wanted one. (3:55pm, 1-9-13: Minor edit to rephrase the last sentence.)

I have a point I'm leading up to, but I think I want some discussion of the theory of law I'm presenting here before I make it.

March 2015

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