Laws Are Reactive

Earlier this year a couple of police officers were accused of raping someone they had in their custody. The police countered that they had not raped anyone, but rather the sex had been consensual. Critics rightly pointed out that police shouldn’t be having sex on the job with anyone - especially someone in their custody since they cannot consent - and raised the question How was this legal for the police to do in the first place?

The answer to this question is simply that, up until this point, police having sex with someone in their custody hadn’t been a problem (or at least no one knew about it). This means no law was ever created to combat such abuse. In essence, laws are not proactive, instead, laws are reactive.

For the most part, in the United States, if something is not explicitly illegal then it is legal. This is known as “Everything which is not forbidden is allowed” or “Nulla poena sine lege” in Latin (since legalese often has a Latin phrase for some reason). The United States largely encodes this in the Ninth and Tenth Amendments to the Constitution:

Ninth Amendment

The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.

Tenth Amendment

The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.

This is often why doing morally reprehensible things - cops having sex with those in custody, people having sex with animals (why is it always sex?) - often “slip through” the legislature. If no one is doing it, then no one thinks “there ought to be a law.”

Of course, just because someone thinks something is morally reprehensible doesn’t mean it should be illegal. There would simply be too many laws to enforce - and add to the fact that people’s individual moral codes often contradict one another.

Oh, and another thing about laws being reactive:

Laws Can’t Prevent

A law won’t stop everyone from doing anything. Make drugs illegal and people will still do drugs, make murder illegal and people will still murder, make sleeping in past nine o’clock illegal and people will still sleep until noon.

One key aspect of any law is the consequence of breaking that law. If a law truly would prevent (or even require) an action, then there would be no sense in stating what the consequences of breaking that law are. In fact, laws are typically put into three categories: infractions, misdemeanors and, felonies. The difference between these is the severity of punishments.

According to FindLaw:

• An infraction is punishable by a fine.
• A misdemeanor is punishable by one year in jail or less.
• A felony is punishable by more than one year in jail.

The ultimate punishment for breaking a law is death. In fact every law is punishable by death given the right circumstances. Typically this will only happen if the suspect resists or flees, so thankfully it’s not super-common, but it does happen - for instance, a man was killed for illegally selling cigarettes in New York City.

The idea that laws can’t prevent, and that they are only enforceable after-the-fact via punishments, means that when creating a law, the question shouldn’t be “should anyone do this” or “is this a bad or immoral thing to do” but rather “should we punish someone who does this action?”

So, should we punish people who commit murder? Should we punish people who do drugs? Should we punish people who sleep past nine?