Michael Eriksson
A Swede in Germany
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Categories of laws (and how to handle them)

Introduction

Laws and similar rules can serve a number of purposes. Depending on what purpose, they are more or less legitimate, our ethical obligation to obey them is correspondingly larger or smaller, and ditto the obligation of the government and its representatives to enforce them. In extreme cases, e.g. a denounce-your-neighbor-for-wrongthink-so-that-we-can-shot-him law in a Leftist dictatorship, we might have laws where an ethical obligation to ignore or break them exists, and where adherence or enforcement might be seen as criminal in its own right. Below, I will give a rough categorization and discussion of some types of law.

A related (but considerably older) text on issues around rules and the breaking of rules is available ([1]).


Side-note:

That adhering to or enforcing a law could be criminal is partially paradoxical, and might depend on the exact meaning given to “criminal”. However, the paradox is a matter of semantics, not logic, and there is no contradiction between an act being “locally” lawful while violating international law, the laws of war, or similar. (In contrast, there is not even a hint of paradox, if we replace “criminal” with “unethical”.)

Whether, when, and to what degree such acts should be punishable, however, is not a trivial question, with an eye at “legal certainty”, the risk of (implicit or explicit) ex-post-facto laws, and similar. Even the post-WWII trials of Nazi-German leadership (many acts of which were strong examples of how the locally legal can be illegal by other standards) have received criticism in this regard.


Notes on terminology, scope, etc.

For simplicity, I will speak of “law[s]”, “government”, “citizen”, whatnot. However, similar statements can apply e.g. to some cases of (non-law) government regulations, executive orders (in U.S. terminology), and similar; can apply to rules set by a non-governmental entity, e.g. a regulatory body or an international federation of this-and-that; can apply to e.g. non-citizen residents and various members of organizations; whatnot. In particular, I make no differentiation between “regular” and constitutional law. Moreover, I gloss over complications like that certain “law[s]” (as used here) might cover more than one law or only portions of a single law in the actual code.

For “rules set by a non-governmental entity”, sports is good source of examples, as athletes often have the choice between abiding by a certain set of behavioral norms (even outside the immediate regulations of the sport as such) and not competing. Consider “whereabouts” mandates, doping-test mandates, interview mandates, limitations on free speech, limitations on advertising rights, etc., and contrast them with rules for scoring, fouls, off-sides, whatnot in a sport like soccer.

While issues like when to obey an order, e.g. as an employee or as a member of the military, are not discussed, and cannot necessarily be brought into the below categorization, it can pay to give them some consideration in parallel with reading. Note, in particular, that members of the military often underlie restrictions that limit their duty to obey, or even create a duty to disobey, orders that violate certain norms.

Other issues not covered include conflicts between law and constitution or between law and binding international agreements, problems with too vague laws, and similar.

Note that the categorization is inconsistent with regard to intent vs. result. I began with a result-oriented discussion, but often found that comments on intents and the risk of failing at the intent were valuable. It might often be best to view each category with an eye at both aspects (even when only one is discussed), namely “are the intents good” and “are the results good”. The citizen might be better off focusing on the results after implementation; the lawmaker on what can go wrong with intents during implementation. Certainly, it is very common for a law intended for one category to actually belong to another in terms of results.

This text is an abstract discussion of the merits/justification of laws. I make no statement about how to handle e.g. a conflict between a law and a personal ethical conviction. Also see the immediately following disclaimer.

Disclaimer on adherence/non-adherence to the law

I do contend both that there are laws that deserve to be broken and that an attitude of “The law must be obeyed—period!” is both simplistic and destructive, a clear sign of an underdeveloped worldview and of underdeveloped personal ethics. (Note e.g. how poorly this attitude fares in Kohlberg’s stages of moral development.)

However:

No part of this text should be seen as an encouragement to break or illegally circumvent any given law, nor as a specific categorization of any given law as belonging to one of the below categories. (However, some few general examples are given as necessary illustration. Cf. below side-note.) I point, in particular, to complications like different parties potentially disagreeing about what categorization is correct, e.g. because of a different view of “unjust” in the first two categories.

Moreover, resisting an unjust or otherwise unfortunate law is not necessarily best done by breaking it. Other means, most notably by lobbying for corresponding law changes, might well be the better pragmatic options. (Also see [1] for issues around rule breaking in a less law-centric context.)

Further, there are other aspects than ethics to consider, should someone contemplate breaking the law, including the risk and consequences of discovery. Here we all have to determine our personal priorities and limits, whether they be “I only regret that I have but one life to lose for [whatnot]” or “Ten dollar fine?!? Better toe the line!”, and the decisions and resulting consequences rest solely with the individual at hand.


Side-note:

I deliberately keep the examples given few and comparatively abstract with an eye at reducing the risk of misrepresentation, abuse of the legal system for attacks, whatnot—even at the cost of a reduction in textual clarity. Not only is Leftist defamation an ever recurring issue on the Internet of today, but the anti-“Right” hysteria of the German society and government, even in the face of a massive problem with the far Left, is immense, absurd, and truly deplorable. Note e.g. that the re-branded SED, the dictatorial party of the DDR, the builder of the Berlin wall, and the murderer of countless DDR citizens, is considered an almost everyday party, while anyone even looking rightwards before crossing the street risks investigation by the “Verfassungsschutz”. Correspondingly, I prefer to err on the side of caution.

That said, other texts will often give the reader a reasonable impression of some laws that I consider particularly negative. I certainly have no qualms about pointing to the lack of true Rechtsstaatlichkeit in the current German society—very contrary to the lip-service given by the typical German politician.


Categorization and discussion

(With no claim of completeness.)

  1. Laws that protect the citizen from unjust and harmful acts by the government (including acts by individual civil servants and elected officials in their respective governmental roles).

    These are the most noble and, likely, valuable laws, and the ones that is the most important to keep and enforce. These are fundamental to one of the two legs of the Rechtsstaat.

  2. Laws that protect the citizen from unjust and harmful acts by other citizens and non-governmental entities, notably businesses.

    A close second, losing mainly through the greater power of the government relative any individual citizens and the partial role of the government as maker, interpreter, and enforcer of laws, which makes the two categories of laws asymmetrical. This category is fundamental to the other leg of the Rechtsstaat.


    Side-note:

    The view of the government as maker (etc.) of laws is approximate and will, obviously, depend on what part(s) of the government is considered, how the local political system works, how widely “law” is interpreted (note the above remarks on terminology), etc. Even with an explicit tripartition, as in the U.S., the issue is potentially problematic and the association of all three aspects with the government increases the problems with each individual aspect. Without sufficient partition, the problems can be grave indeed.


  3. Laws that ensure a consistent and reliable framework for the citizens to interact within, especially with regard to business transactions.

    Here it is more important to have a such framework than to reach perfection, and any framework will necessarily have some degree of arbitrariness that we have to live with, even should we have preferred something different.

    (Beyond some limit, this does not apply, as the “fitness for purpose” of the framework might be insufficient; however, this is likely a rare occasion in a modern Western nation. Note that e.g. disproportionate favoring of special-interest groups is covered elsewhere.)

    Consider, as an analogy, sports, where considerable changes to the rules of an individual sport might leave the sport (in some sense) the same sport, but where it is important that the rules remain sufficiently stable, equitable, and well-known that the players can make informed decisions and rely on them, that the rules do not unduly favor one player over another, that all players abide by the rules, etc. Consider e.g. boxing and the switch from 15 to 12 rounds for championship fights: it might well be that 15 rounds would have favored the one boxer and 12 the other, but the difference is not enormous, and it would be much, much worse if the boxers were only told whether the fight was for 12 or 15 rounds at the end of the 12th round. Or consider a match in which one boxer was allowed to throw “low blows” with impunity, while the other was immediately disqualified upon his first attempt to retaliate.


    Side-note:

    The above is not be confused with the general principle of “legal certainty”, which is vital and applies to all the categories. The current category, however, is based on a particular purpose of laws, independent of and in addition to “legal certainty”.


  4. Partially independent, partially overlapping with the two previous categories, we have a range of potential protective laws, which have to be judged on their individual merit and with an eye at the overall circumstances. For instance, some countries have a requirement that motorists and/or car owners have corresponding insurance, based (in my understanding) on the idea that the party who caused an accident should always be able to pay sufficient restitution to innocent victims of the accident.


    Side-note:

    This example demonstrates how tricky such issues of “individual merit” and “overall circumstances” can be. On the one hand, the rationale does make sense; on the other, I have heard repeated claims that the idea does not work as well as intended, e.g. because an accident was caused by an uninsured, penniless, and underage joyrider. (But I have never looked deeper into the issue.) From another perspective, we might well have a case where someone has sufficiently much money that accident victims would not be at additional risk and where the insurance overhead is just wasted money. From yet another, there can be considerable market distortions, in that car insurers can rack up prices well above the “natural” price level, that low-price cars sell worse than they “should” (because the cost-of-ownership increase through insurance is larger relative the price of the car, the cheaper the car), or similar.


  5. Laws that serve to protect some greater interest, to accomplish something that market forces could not handle sufficiently, to make corrections for market failures, or similar. Consider e.g. laws to reduce pollution.

    Here individual cases must be judged on their individual merits:

    While some such laws might be justified, it is necessary to tread with great care as they have historically often proved suboptimal or outright backfired—and especially when the laws involve(d) larger amounts of money. A particular danger is that they open the door for distribution of tax-payers’ money to undeserving third parties or in a manner that leads to suboptimal workings of the markets. Another, that enormous amounts of money are spent to achieve a goal and that this goal is still not reached, is reached only with severe delays, or is ultimately found to bring too little benefit to offset the costs.

    To boot, arguments based on a claimed “greater good”, or similar, are often dishonest excuses for a hidden agenda or highly misguided—and by no means limited to this type of law. To boot, politicians often jump into the fray without even trying to let the markets handle the matter or in order to provide something that the markets do not provide because it is not wanted by the public. To boot, arguments based on “market failure” are often distorting in nature, as the true failure is often politician-caused and the markets just a convenient scape-goat. (In a sad reversal, laws are often too lax where intervention is more warranted, e.g. to prevent the abuse of public spaces, including many already narrow sidewalks, to park for-hire electric scooters.)


    Side-note:

    The aforementioned issue of pollution is interesting, as I have heard claims (but have not looked into this in detail) that the improvements over time and in at least some areas have been caused more by market forces than by government intervention, e.g. with regard to catalytic converters. Consider e.g. that a democratically driven (as opposed to driven by the personal preferences of the politicians) environmental regulation of cars presupposes a majority support in the population, while the same majority support would lead to pressure to provide more “environmental” cars through market forces. Maybe, this pressure on the markets would have been enough. This while there are many examples of politically mandated changes bringing many disadvantages, e.g. the current (2023-ish) U.K. heat-pump situation with issues ranging from monetary costs to noise disturbances, which would not be accepted by most consumers, absent the current shove-it-down-the-throat-of-the-consumers approach of the U.K. government—and disadvantages that are less likely to be fixed, because they are partially protected from market forces that would have given strong incentives for fixes.

    (A few weeks after writing the above, I encountered a Telegraph articlee arguing e.g. that “technology and markets are already solving the climate crisis” and that “Whether the world cuts carbon emissions fast enough to secure a 1.5-degree planet depends on the arms race for clean-tech dominance between the US and China.”, which is one of the farthest going in this direction that I have seen—but certainly one more reasoned than the latest drivel from Greta Thunberg.)

    A secondary question is when and whether the personal preferences of politicians can be a legitimate source of changes. This is a question outside the scope of this text, however, except in as far as the results fall into one of the “evil” categories.


  6. Laws “for your own good”.

    While there might be some limited justification in exceptional cases, such laws are usually pointless or outright harmful. Very often they violate the fundamental right to make decisions for oneself, and do so with no true justification. A typical case might do more to force the citizen to a certain behavior for the benefit of the government than for his own alleged good, and the claimed justification can often be doubted—bad faith often playing a considerable part in the decision making. Certainly, those who push for such laws (and, for that matter, many other laws) in good faith tend to be poorly informed, poor thinkers, fail to consider individual variation, and/or have, themselves, fallen for the self-serving propaganda of lobbyists acting in bad faith; and are almost always far less suited to make the decision for everyone else than the individual citizens are to make decisions for just themselves and/or their families.

    Such laws should be viewed with great scepticism and an attitude (relative the law, not the citizen) of “guilty until proven innocent”. Unless proof of metaphorical innocence follows, they are to be strongly resisted. It is better to err on the side of rejection.

  7. Laws that ensure the running of government in a reasonable manner, including sufficient provisions to ensure financing and to uphold “good” laws in other categories.

    Such laws are a necessary evil and must be accepted in the abstract. In practical detail, however, it is very important to ensure that they truly serve their purpose and do not move beyond the “necessary” portion of “necessary evil”.

    (Here there might be very great differences in opinion about e.g. what constitutes “reasonable manner”. I would strongly favor some version of the “night-watchman state”.)

  8. Laws, beyond the previous category, that are intended for the benefit of the government, even at the cost of the citizens and with no (or only disproportionately small) benefits arising for the citizens in return. Such laws are evil and should be resisted over the whole line.

  9. Laws similar to the previous category, but with the intent of favoring e.g. a special interest group. Here a wide range of candidates are possible, e.g. an industry with an effective lobby, an easily “bribed” group of voters that receives favors in exchange for votes, an individual who receives favors from a dictatorial regime, civil servants, and politicians.

    In most cases, the same “should be resisted over the whole line” applies; however, here the details of the situation, including who is favored and why, must be considered. There is a world of difference between e.g. giving aid to someone who was drafted into a war against his will and lost two legs, and e.g. politicians handing out tax-payers’ money to each other.


    Side-note:

    As can be seen, this category is very wide, and it might well be that a better categorization would divide it into several separate categories.

    Likewise, it is conceivable that civil servants and politicians would be better grouped with the preceding category.


  10. Various other cases that might need further investigation.

    I deliberately terminate the list here, for the time being, as the number of categories increased repeatedly during writing, beyond my original intents, as the additions do not necessarily fit as well with my original intents as the originally planned, as the probability of overlap between categories increases with every new category, and as I see diminishing returns from further discussion. (Had I continued, the next item, or few items, would have dealt with topics like elections, form of government, internal governmental regulations, and similar—none of which bring great additional value to the overall discussion.)

In my experiences so far, sadly, governments and politicians, notably the German, seem to prioritize the legitimate and valuable laws low and the illegitimate and damaging high.

Excursion on allowed-for-a-price

In sports, it is often the case that something intended to be banned, period, is seen as allowed-for-a-price. Consider soccer and an attacker shooting the ball straight at an unguarded goal. One of the defenders is close enough that he could just barely block the ball with his hand, but not close enough that he could stop it in a legal manner. In theory, he has no choice but to leave the ball alone; in practice, he has the option of blocking it in exchange for a price. As that price is usually the lesser evil, chances are that he will attempt the block.

Even with laws, there is a risk that a certain action is seen as allowed-for-a-price instead of forbidden. For instance, someone with enough money and/or an important enough reason might see a parking ticket as an acceptable price for the convenience of illegal parking. For instance, I once read an account of a rich eccentric, who, in the earlier days of railways and living far from the nearest station, was in the habit of pulling the emergency brake when the train came close to his house and accept the resulting fine as the price for the convenient stop.


Side-note:

Changing the consequences can reduce such issues considerably. Having a car towed is a much greater deterrent than a parking ticket to most, for instance. Correspondingly, it is important to choose appropriate consequences.

However, “appropriate” does not necessarily imply “harsh”, as other factors have to be considered, including the proportionality of the consequences, the cost for and resources of the enforcer (writing a ticket is much easier than towing a car), the different effects that different consequences have on different potential violators (a parking ticket is bad enough for many), etc.

A particular complication is how to handle the size of e.g. an actual fine vs. the expectation value of a potential fine. For instance, if a guaranteed fine of 100 (in some currency unit) is considered a sufficient deterrent and the actual risk of being caught is 1/10, then the expectation value is a mere 10, which is a far weaker deterrent. Increasing the fine to 1000 would raise the expectation value to 100, but might now be disproportionately harsh for those caught. Further, if the risk varies, e.g. between 1/2 on a popular and strongly monitored street (for a parking offense) to 1/100 for a small and unmonitored street, the expectation value will vary in proportion—here, between 500 and 10.


Similarly, I have heard of instances where businesses have chosen to violate this-or-that regulation, because the monetary cost of the resulting fine was smaller than the costs involved in following the regulation. Revisiting the above examples, it might be cheaper to let a parking meter expire and take the fine than to interrupt a multi-million dollar negotiation just to run down to the street and put in a few more coins, while the fine for the rich eccentric must be put against the additional cost of arranging for travel between the nearest actual train station and his home (which might or might not have been larger).

Excursion on other aspects of laws

There are other aspects of laws, and these might or might not affect whether a given law should be supported/rejected/whatnot. Consider the clarity of language of a law, how well the law matches reasonable expectations and local traditions, whether a suggested punishment is in proportion to the crime, and similar.

A meta-issue is the sheer number of laws, which in many (most? all?) modern countries is oppressive in its own right, with negative side-effects including increased costs to administrate and enforce laws for the government, increased costs to ensure compliance for businesses, and a severe risk that laws are broken through ignorance for the citizens. The last to the point that I cannot consider legal maxims like “ignorantia juris non excusat” valid and conscionable in today’s world. Here, some more blanket change might be needed, e.g. that every law that the average citizen should reasonably know qua citizen must fit within a certain conscionable page count, something that e.g. an average high-school graduate can conscionably be assumed to have learnt, and that “I did not know” becomes a valid defense outside these pages. (Further laws might be required to be known when the citizen takes on other roles. For instance, if someone rents out apartments, even in a private capacity, a deeper knowledge of related law can conscionably be assumed—arguably, must be assumed, to prevent pleas of ignorance being used to excuse illegal actions relative renters.)


Side-note:

While “ignorantia juris non excusat” might once have been justified and in the interest of everyone, too many modern applications are to the one-sided advantage of the government and should be resisted in the same manner (cf. above) as laws to the one-sided advantage of the government.


Another meta-issue is changes to laws. Too unexpected or frequent changes can also raise concerns about the justification of a law or set of laws, while a greater obligation on the government to actively inform about law changes would be a very welcome improvement.