What happens if the law is broken

The first possibility is that law-makers seek to achieve those ends primarily—ideally—by means of compliance. The second possibility is that law-makers seek to achieve those ends primarily—ideally—by means of conviction. Those who adopt the first means create laws that are made to be followed LMFs. Those who adopt the second create laws that are made to be broken LMBs. I also sketched an argument for the creation of LMBs. That argument is in part an argument from justice.

Some reply that to seek justice via LMBs is self-defeating. One version of this reply has it that LMBs cannot deliver just punishment even in principle.

Punishment is just, so the argument goes, only when it communicates deserved censure. What punishment communicates depends on the crime for which one is punished. So it cannot be just. A second version has it that, even if LMBs are in principle capable of delivering just punishment, they will in practice result in many unjust punishments.

They will do so, according to this argument, because prosecutors will make mistakes about which offenders are eligible for punishment. And because LMBs eliminate the requirement that wrongdoing—manipulation, coercion, planning, etc. This is a moral loss, it is concluded, that outweighs any moral gain produced by additional just punishments.

In the remainder of this paper, I offer a reply of a different kind. I do not, in other words, argue that enacting such laws in pursuit of just punishment is always self-defeating. Instead, I argue that whatever justice may be produced by LMBs is justice law-makers must not seek if they are to govern in accordance with the ideal of the rule of law.

If I am right, it is part of the price of living under the rule of law that we give up on the gains—including gains in justice—that might be achieved via the enactment of such laws. The rule of law is often thought of as an ideal for laws and legal systems.

So understood, it requires that those subject to the law can reliably be guided by it. Footnote 14 The rule of law is, however, also an ideal for states. So understood, it requires that state officials, and state institutions, are subject to the law. It also requires that their conduct is guided by the laws to which they are subject. This second requirement, simply stated, is unhelpfully vague.

I try in what follows to make one aspect of it more precise. All legal systems confer powers to impose duties on persons generally, such as powers to prohibit murder, burglary, or rape. All legal systems also confer powers to impose duties on particular individuals, such as powers to arrest, prosecute, convict, and punish. Different powers are conferred on different officials and institutions. Criminal courts have the power to convict but not to arrest.

Police officers have the power to arrest but not to convict. Each power may lawfully be exercised only when certain triggering conditions are met. Police constables lawfully arrest p for some offence without a warrant only if they suspect p of committing that offence, and only if they have reasonable grounds for the suspicion.

Criminal courts lawfully convict p of some offence only if p pleads guilty, or the members of the jury or enough of them conclude that they are sure p committed the offence, and reach this conclusion on the grounds of the evidence admitted at trial.

It is legally regulated in virtue of the following facts:. I earlier claimed that, if we are to have the rule of law, state officials and institutions must be subject to the law. Legal regulation of the kind just mentioned helps to satisfy this requirement. I also claimed that the law must guide the conduct of state officials and institutions. To determine whether the state is meeting this requirement, we can ask two questions.

First, and most obviously, we can ask whether state officials or institutions are violating the law. If the imposition of new duties is legally regulated, the law is violated if the applicable triggering conditions are breached. Second, and less obviously, we can ask how officials and institutions identify those on whom new duties ought to be imposed.

My concern in the remainder of this section is with this second question. How is the state to decide if d ought to be imposed on p? One possibility is to look to the officials or institutions empowered to impose d. You may ask to what exactly the identification principle is opposed. To see the answer, consider a police officer who arrests p for assault, and does have reasonable grounds to suspect p of the offence. This officer does not violate the triggering conditions when she arrests p.

So the arrest is not unlawful. It does not follow that p was identified as someone who ought to be arrested only when grounds for reasonable suspicion were found. It may already have been decided, by the officer or by others, that p is someone who ought to be arrested.

Indeed, it may have been precisely because she was pre-identified in this way that reasonable grounds to suspect her of assault were later found. When this is so, p is treated by the state not as a protectee but as a target : steps are taken to make it the case that p can lawfully be arrested because it has already been decided that this ought to occur; those steps are taken despite the fact that those empowered to arrest p have not yet determined that the triggering conditions for the exercise of that power are met.

Several types of pre-identification are worth distinguishing. To distinguish them, let us consider some examples. We can start with:. Constable —A police constable arrives at the scene of a physical altercation.

Seeing that p has a tattoo, she immediately decides p probably committed assault and ought to be arrested. As a result, she looks for evidence of p having offended, and, on finding reasonable grounds for suspicion, makes the arrest. In Constable , the official in question is empowered to arrest p. She has the degree of confidence specified by the applicable triggering conditions from the moment she sees p.

But she lacks the legally specified grounds—namely, reasonable ones—for her suspicion. When she identifies p as someone who ought to be arrested, in the absence of those grounds, she pre-identifies p. Now consider:. The juror concludes that this is enough to establish that p ought to be convicted, and sets about persuading her fellow jurors to convict p. In Juror , the initial decision about p is again not reached on the legally specified grounds—it is not reached on the basis of all the evidence presented at trial.

Footnote 16 Once again, p is pre-identified. Now take a third case:. Magistrate —Having heard all the evidence, a magistrate is sure that p committed adultery, but is not sure that p committed the sexual assault with which she is charged. She decides that p ought to be convicted, and sets about persuading her fellow magistrates to convict p. In Magistrate , the official in question is again empowered to convict p. She has the degree of confidence specified by the triggering conditions.

Let us assume she has it on the specified grounds—on the basis of the evidence presented at trial. Nonetheless, she does not have that degree of confidence in the specified facts , namely that p committed sexual assault.

So, when she decides p ought to be convicted, she pre-identifies p. Here is a fourth case:. Mayor —The local major suspects p of assault. She decides p ought to be arrested, and tells the police to look for evidence that p offended. The police are able to find reasonable grounds to suspect p , and they make the arrest.

In Mayor , an official identifies p as someone who ought to be arrested, despite having no legal power to arrest p. Footnote 17 The mayor does possess the legally specified degree of confidence that p committed assault. Let us assume she possesses that confidence on the specified grounds.

Nonetheless, she is not legally empowered to make arrests. So p is pre-identified as soon as the mayor decides p ought to be arrested.

Consider one final example:. Proof —A police officer has reasonable grounds to suspect p of a string of robberies, and decides that as a result p ought to be convicted. Worried that the prosecution will be unable to prove that p was the perpetrator, she looks for evidence of p having committed some other crime.

Finding evidence of assault, she makes the arrest. Proof is a case that shares features of all that went before it. Notice that p is identified by a police officer as someone who ought to be convicted. Only the criminal courts are empowered to convict criminals.

They do so lawfully only if the defendant pleads guilty, or the members of the jury or enough of them are sure, on the evidence admitted at trial, that the defendant committed the offence.

As in Mayor , p is identified as someone on whom d ought to be imposed not by those empowered to impose d —the courts—but by another—the police officer who makes the arrest. As in Constable , p is not identified on the legally specified grounds—here, the evidence presented at trial—but beforehand, on whatever grounds the police officer has to suspect p.

As in Juror , those doing the identifying lack the specified degree of confidence—the absence of reasonable doubt—and possess only a lesser degree—suspicion. And as in Magistrate , p is not identified on the basis of official confidence in the specified facts.

As p is charged with assault, the specified facts are facts that constitute commission of that offence. For all these reasons, the police officer in Proof pre-identifies p. Though these cases differ in various respects, they are all cases of pre-identification. In each case, p is identified as someone on whom d ought to be imposed before the official or institution empowered to impose d comes to have the legally specified degree of confidence, in the legally specified facts, on the legally specified grounds.

And in each case, once p has been pre-identified, steps are taken to make it the case that d can lawfully be imposed—to make it the case that those empowered to arrest or convict p will be able to do so without violating the applicable triggering conditions. As I already observed, to take these steps is to treat p as a target, rather than as someone to be protected against d. It is pre-identification of all kinds to which the identification principle is opposed.

State officials and institutions are not to identify p as someone on whom d ought to be imposed, unless those empowered to impose d have determined that the triggering conditions are satisfied. So it is police officers who must decide who ought to be arrested, and courts who must decide who ought to be convicted.

Their decisions must await application of the triggering conditions provided for by law. It follows that, when the identification principle is upheld, the state divides its people up in a particular way: those on whom d should be imposed are distinguished from those on whom d should not, by legally empowered officials and institutions, using legally specified conditions, on legally specified grounds.

I mentioned earlier that the rule of law requires that the law guide state conduct. We can now see why the identification principle is itself one aspect of that requirement. It may be said that the identification principle has a more familiar name than the one I have given it here—that it is one aspect of the ideal known as equality before the law. It is true that a certain type of equality is a byproduct of conformity to the principle under discussion. When it comes to duties the imposition of which is legally regulated, conformity to the identification principle puts every individual in the same position: until those empowered to impose d determine that the triggering conditions are satisfied, no state official will conclude that d ought to be imposed on anyone.

Because all are protected against pre-identification, all are equal in this respect. But we should not conclude from this that we are dealing with an egalitarian principle. Footnote 18 The identification principle is not like this. It simply ensures that a person is not punished more heavily than the maximum penalty applicable at the time of the offence. In this case, the imposition of licence conditions did not make the sentence heavier than it would have been under the earlier regime.

Download the publication for more examples and legal case studies that show how human rights work in practice. Article 7: No punishment without law. Pages in this section T The Human Rights Act Article 2: Right to life Article 3: Freedom from torture and inhuman or degrading treatment Article 4: Freedom from slavery and forced labour Article 5: Right to liberty and security Article 6: Right to a fair trial Article 7: No punishment without law Article 8: Respect for your private and family life Article 9: Freedom of thought, belief and religion Article Freedom of expression Article Freedom of assembly and association Article Right to marry Article Protection from discrimination Article 1 of the First Protocol: Protection of property Article 2 of the First Protocol: Right to education Article 3 of the First Protocol: Right to free elections Article 1 of the Thirteenth Protocol: Abolition of the death penalty.

Article 7 of the Human Rights Act. In many criminal cases, however, there is no grand jury. While awaiting trial, the accused may be temporarily released on bail which is the amount of money meant to guarantee that the person will return for trial instead of leaving the country or kept in a local jail. Trials are usually held before a judge and a jury of 12 citizens. The government presents its case against an accused person, or defendant, through a district attorney, and another district attorney defends the accused.

If the defendant is judged innocent, he or she is released. It is a question of pervasive practical importance, especially in public law, partly because so many public law actors are not subject to formal legal sanctions, and partly because the rhetoric of obedience to law plays such a large role in public, political, and journalistic discourse.

If in fact genuine obedience to law qua law is the exception rather than the rule, and if genuine obedience is rarely rewarded and sometimes condemned, 7 then the effects on how law ought to be designed, and on how public discourse ought to be conducted, may be profound.

As noted at the conclusion of the foregoing section, one thing that makes the topic of official obedience to law both interesting and potentially important is the possibility that there is a substantial disjunction between official practice and official rhetoric. Although few officials would claim to reject the law as a reason for decision, and although many of them actively trumpet obedience to law as an important value, their actions may belie their rhetoric.

That is, officials may claim the value of obedience to law when the law-conforming actions to which they are referring are ones they would have chosen on law-independent grounds, but when the law requires them to take actions inconsistent with their law-independent preferences, they may sometimes, often, or almost always, when no legal sanctions are in the offing, choose to go with their law-independent preferences rather than with the law.

Moreover, if we assume that officials behaving in such a way are often accurately perceiving and responding to the preferences of their various constituencies, the widespread presence of preferring first-order substance to the second-order constraints of the law, if in fact such a preference exists, will tell us a great deal about the extent to which, if at all, law qua law is actually a value the society has internalized.

Consider, for example, the legality of American involvement in Libya. Factually, the issue arises from the situation in which the Obama Administration directed strikes against Libyan air defenses, some by aircraft and some by remotely operated drones, in conjunction with NATO, but without prior consultation with Congress and without approval by Congress, either in advance or to this day Morrison In defending its refusal to consult with Congress or secure its approval, the Administration relied, in part, on now-routine presidential claims to have independent constitutional authority, under the explicit commander-in-chief and executive powers and under the implicit war-making and national defense and foreign policy and emergency powers, to engage in such actions.

Koh, Legal Advisor to the State Department. For purposes of this article, it seems more than plausible to treat the legal defense of the actions over and against Libyan forces as so weak as to permit the claim that the actions simply violated the law in a straightforward way.

Yet although the actions violated the law, they were plainly preferred by the Administration on policy and, presumably, political grounds.

The air attacks were successful, the forces of a very bad person were defeated, the regime seems to have changed, at least for now, for the better, and there were no American casualties.

The entire scenario, therefore, seems a good example of one in which, faced with a choice between the law-independent policy preferences and the clear constraints of the law, the Administration chose the former. What makes the example especially interesting, however, is not just the favorable policy outcome, but the fact that the policy and political success, even in the face of relatively plain illegality, has produced virtually no negative political consequences.

Public and press attention to the illegality has disappeared Wang , and the political evaluation of the action has been largely positive. As the events have played out, the illegality has played essentially no role in the larger politics of the situation. To put it differently, not only has the illegality produced no formal legal sanctions, as it could not short of impeachment , but it also seems to have produced virtually no political or reputational sanctions for the Administration.

As I have discussed in previous writings Schauer , c , b , there are many other examples of illegal policy actions or positions that have seemingly produced no or few negative political consequences. One such example is the decision by the mayors of San Francisco and of New Paltz, New York, to marry same-sex couples in violation of the then-applicable state law. With sympathies in both States in the direction of legalizing same-sex marriage, however, the illegality was taken then, and is taken now, as being somewhere between inconsequential and courageous.

And on the same issue, when Governor Deval Patrick of Massachusetts explicitly urged members of the legislature to disregard a decision by the Massachusetts Supreme Judicial Court mandating that they vote on a referendum proposal to amend the state constitution to prohibit same-sex marriage, his actions have produced no negative political fallout.

Less saliently, the frequent willingness of Congress to ignore the law of law-making seems a matter of virtually no political consequence and thus a practice that has produced no negative political consequences for anyone Bar-Simon-Tov The examples noted above are not claimed to be representative. They were selected precisely because they demonstrate a particular phenomenon, and thus my claim about the seeming unimportance of the law is vulnerable to the charge of committing the error of selecting on the dependent variable—of picking examples that demonstrate a certain outcome without employing a methodology that would not be biased in favor of one set of outcomes and thus of one conclusion about the prevalence, representativeness, or cause of those outcomes.

If we understand the examples as suggesting a hypothesis, one that might be tested more systematically by any of a number of methods, then the possible nonrepresentativeness of the examples should be less of a concern. Hypotheses are typically identified precisely by noting surprising outcomes, and are then tested in a way that attempts to determine whether the outcomes really are surprising, and whether they stand for a larger phenomenon or trend. If I observe four bicycle accidents while walking to my office over a one-week period, I have good reason to investigate whether something about those routes at that time is especially dangerous for bicyclists, even though I have not counted all of the instances of bicyclists passing me who have not been involved in accidents.

So too here. It may well be that there are countless examples of officials following the law for sanction-independent reasons even when their policy and political preferences are to the contrary, and a systematic study would want to be as attentive to such examples as to the opposite. But the fact that few but not none such examples come to mind, and the fact that politically costless examples of law violation appear widespread, is at least enough to suggest the plausibility of the possibility that obeying the law qua law may be less important to officials and their constituents than is often supposed.

It is, to repeat, just a hypothesis, but there does seem some reason to suspect that it is at least a plausible one. Even if the foregoing examples are in fact representative, however, it would be a mistake to conclude from these examples that violation of the law simply does not matter in public and political evaluation.

And it would be a mistake because the fact of law violation does seem to matter when the illegal official actions turn out to be less successful or turn out to garner less political support. Consider, for example, the various and interconnected actions of the George W. Bush Administration regarding Iraq and terrorism. Many of these actions, certainly including the torture by waterboarding of various proved and suspected Al Qaeda operatives and the surveillance without warrant of American citizens, explicitly violated clear law, for example the Foreign Intelligence Surveillance Act Pub.

These illegalities attracted substantial political and public condemnation, and such condemnation persists to this day. But what also persist to this day is strong public and political sense that the so-called war on terrorism remains a work in progress, with terrorism still a substantial fear among many Americans, and an even stronger public and political sense that the invasion of Iraq produced few benefits, and certainly not the quick resolution followed by cheering Iraqis that the Bush Administration had initially envisaged.

A similar conclusion might be reached about the Iran-Contra affair. As various subsequent prosecutions and hearings demonstrated, the fact of illegality was highly important. But the salience of the illegality accompanied the fact that the goals of the Iran-Contra arrangements were neither successful nor widely shared by the American public.

American hostages remained in Lebanon for years thereafter, and the successes of the Contra revolution were limited. Moreover, as a policy matter, the notion of helping groups, such as the Contras, with extensive ties to drug-dealing, and of negotiating with terrorists, were hardly without political complications, illegality aside. Illegality became highly important, but the importance took place against a background of policy aims that were controversial and policy successes that were, at best, mixed.

Again, the examples may not be representative, and a larger number of examples, especially examples designed to test various counterfactuals, would be necessary to determine the representativeness of the examples.

But insofar as the examples turn out to be representative, they might assist in establishing the proposition that illegality has turned out to be important when the law-independent policy goals and policy accomplishments have turned out to be unpopular.

The foregoing examples suggest the following hypothesis: When illegal policies are successful on policy and political grounds, and when formal sanctions are unavailable, the fact of illegality will be relatively inconsequential, but when illegal policies are unsuccessful on policy and political grounds, the fact of illegality will increase what would otherwise have been the political and reputational penalty for officials responsible for the policies.

The hypothesis should plainly be understood as a statistical claim and not as an inexorable phenomenon. That is, the hypothesis I offer is that policy and political success will likely decrease substantially the political and reputational costs of illegality, and that illegality will likely increase the political and reputational costs of policy failures.

For purposes of this article, I do not want to test or investigate the hypothesis further, although I do believe that framing it as I have will assist in that endeavor. Rather, I want to examine the implications of the hypothesis if it is in fact true, and I want to do so by way of a very informal and decidedly nonmathematical model.

And let us assume that the official believes that the action is good policy, believes as well that it is illegal, and, finally, has no reason to fear a formal sanction on account of that illegality.

With these assumptions in hand, we need then to recognize that the official is taking the action under conditions of uncertainty regarding the success of the policy and its political reception.