I’ve been thinking about laws a lot lately. Laws have been in the news quite a bit recently. Laws about gun control, laws about leaking government documents, heck, when I took a flight on a plane earlier this week I was told about laws prohibiting me from tampering with the smoke detectors. I think it’s funny how some people think and act with regards to laws. One group of people who really make me laugh are those who think laws somehow stop something from happening; as if laws were some mystical force, or an invisible wall like in a video game. Don’t want something to happen? Make it against the law! Yeah, that’ll stop ’em! Sure that might deter some people from some activities, but if someone is really determined, or just simply doesn’t care, they’re going to do whatever it is you’ve made against the law. Yet here I’m just referring to law and its relation to everyday life in society. What’s really got me thinking about law lately is how it relates to the government.
When I think back to my early days of political activism in high school one memory sticks out. It’s the memory of my US Government teacher. He was once asked what he admired most about America. His responded that what he admired most was the fact that a single ordinary citizen was able to bring the most powerful government on earth to a screeching halt through the use of law. I think in his mind he imagined someone exercising their rights to refuse a search or to keep their home when the government wanted to build a highway. This memory has become one of my sorest and most poisoned points of cynicism.
I feel there are two realms to the law. There is the law as it affects everyday people and their daily lives. For example, laws regarding driving, civil contracts, or when the bars close reside in this realm. The second realm revolves around laws and how they relate to the government. Usually people say things like “Well the government can’t do X because it’s against the law” or “I’d like to Y in order to comply with the law.” As a specific example, I was in an online forum discussing Julian Assange and his captivity in the Ecuadorian embassy in London. The police there are spending $16,000 a day to make sure he doesn’t leave the embassy. Someone in the forum was asking if there was any legal way for Assange to escape.
When people talk about law in relation to the government I get the impression that they think of it as a kind of game. The government and the person interacting with the government are both players in this game. The law governs what actions the players can and cannot take. The players then try to win the game by using the law to out maneuver their opponent. This could be in the form of a person attempting to avoid jail time or secure the ability to do something the government has tried to stop them from doing. Conversely, the government could use the law to prosecute someone or prevent a group of people from doing something.
I imagine most people conceptualize the law this way. Unfortunately there is a major flaw in this understanding of the law that undermines any chance of fair play:
The government writes the laws.
Imagine you’re trying to play a soccer game where you make your best effort to stay within the lines on the field and not commit any fouls. Now imagine that your opponent is not constricted by those lines and can commit whatever foul they want. The game would seem fixed and it would be extremely difficult to play. Now take it a step further. What if your opponent could actively redefine the lines on the field and what constituted a foul to their advantage? Any chance of a fair play would be impossible! There is no way you could win against that opponent. They have god-mode enabled.
That’s exactly the situation we’re faced with when using the law to interact with the government. Because of this, I can’t help but laugh whenever I overhear someone talking about trying to play by the rules with the government. I feel a lot of people fail to see this because it’s rare that this truth is so nakedly apparent, however, it’s rapidly becoming more apparent every day.
Everything the government does is governed by a cost/benefit ratio. The government can break its own laws at the cost of public disapproval. Historically, the bigger the breach, the bigger the public backlash, yet everything in life is governed by economics. This ratio, like a currency, is not a fixed value. It fluctuates over time. At some points in time it might be more costly for a government to do a particular thing than at other points in time. For example: In the 1970’s, Nixon was involved in wiretapping the Democratic National Committee headquarters in DC. He was caught and the publish outcry eventually lead him to resign. Nowadays, Obama wiretaps the entire country along with many of our allies oversees and nothing really happens. The cost/benefit ratio of such actions has shifted.
Historically, public backlash against the government has been the force to keep the government in check. Lately, however, I feel this force has been losing its market value. What is causing the devaluation of public outcry? Several factors: public apathy and distraction is the cliche, but nonetheless still a major factor. (On a related side note, Portlandia did an amazing skit here demonstrating this.) Technology is another often overlooked factor. Technology allows the government to be more precise, efficient, and quick in applying its force. Wire-tapping everybody and monitoring everything gives the government better situational awareness and lets them effectively single out potential trouble makers and deal with them quickly. Governments are, after all, self-preserving organisms just like any other. The first law any government always passes is to make it illegal to overthrow the government.
So back to people failing to see this truth because of it rarely being apparent. Why is it rarely apparent and what are some examples of when it is apparent?
What is the difference between a “civil” society with laws and a society where the ruling party often and arbitrarily does whatever it wants? Stability.
Instability is bad for business, and again, everything is about economics. The government could start ruling with an iron fist and start imprisoning people and breaking laws en masse, but the cost of doing that is very high. It quickly lowers the threshold for open rebellion and we often see the outbreak of civil war quite quickly in regimes that resort to these tactics. For the most part, the government might allow itself to be constricted by its own laws for the sake of stability, but the whole point of laws is that, like rights, they’re supposed to be absolute.
If a right is not absolute then it is, by definition, not a right. It’s a privilege allowed to you by some other party, at risk of being revoked should the sentiments of that party change. A law is not a law if it is at risk of being ignored or broken by the government.
Nowadays, there are increasingly times when the government deems the cost of disregarding its own laws tolerable enough to do something that would otherwise be illegal. One example I’ve quoted on here before is the case of Megaupload. Megaupload was a file sharing site that the government, at the behest of powerful Hollywood lobyists, illegally shut down. They were waiting for SOPA, a bill giving them a legal pretense for exercising more control over the internet, to pass before they took down the site. When the bill failed due to public outcry, the government went ahead and took down the website anyways. Your average citizen didn’t know what Megaupload was, nor would they care, so the cost of taking it down illegal was very small. A much more high profile example lately is the government ease dropping on all communications. The NSA records all your phone calls, collects your e-mails, browser history, bank transactions, you name it. This information is collected automatically so it can be examined should you become a person of interest in the future. The NSA is currently constructing a facility 5 times larger than Washington DC where they will store all this illegally gained information. Another example is the targeted killings of Americans. (How can you read that sentence and keep a straight face?) There was seriously a discussion in this country a little while back about when it was ok for the president to extra-judicially execute an American citizen. No trial. No jury. No due process. Before that there was a discussion in this country about when the president could torture someone and lock them away in prison for years without a trial. How did the government get around the illegality of this?
Simple. They just rewrote the laws to make it legal.