Lord Mummery spoke of the uselessness of law. He meant this: positive law, especially as it has come to be wielded by increasingly ambitious legislatures, may not be the best means to solve pressing social, political or economic problems. He pointed to the example of the recent experience of the United Kingdom: over a quarter century or so the U.K. Parliament has added over 3000 criminal acts to the nation’s laws. Yet this great legislative project has produced no sense that people are either more law abiding or feel safer as a result.
Indeed, the effects of this extensive legislative project, like those in the United States, may have produced a greater perverse than positive effect. As a consequence, it is far more likely, for example, that people have become less law abiding. On the one hand, the great proliferation of actions now made criminal has made it more likely that people will inadvertently engage in criminal activity, legislatively defined in exquisite detail. On the other hand, people may be more likely to knowingly violate criminal acts deemed unfair, ridiculous or easy to evade.
This last point raises important questions about the relationship of law to legitimacy. People willing to evade law deemed unfair or easy to evade are people who, by their actions art least, question the legitimacy of the pronouncements evaded. These are small acts of rebellion. These rebellious acts, always present in any state, can, when they reach a sufficiently great level, threaten the legitimacy of the government itself. Three thousand criminal acts suggest not only a government out of control, but also a government that has lost the ability to reflect the popular will.
But there is potential perversity here as well. A state that has gone on a criminalization binge is also one that must enforce these acts. But that poses a problem for prosecutor’s offices, which have neither the funds nor the personnel to prosecute all offenses (as well as for the police that have neither the resources or personnel to seek out all wrongdoers). Police and prosecutorial discretion are hallmarks of all state systems, and necessarily so. American courts have usually been very deferential. See U.S. v. Forney, 9 F.3d 1492 (11th Cir. 1993) (The Supreme Court emphatically has upheld the sanctity and separateness of prosecutorial discretion for the proper functioning of our criminal justice system. The Court has concluded that "[t]his broad discretion ... is particularly ill-suited to judicial review," and that the factors that a court would consider to review such a prosecutorial decision "are not readily susceptible to the kind of analysis the courts are competent to undertake." Wayte v. U.S., 470 U.S. 598, 607 (1985). Id., at 1501). But when the balance between discretion and offenses become sufficiently distorted, prosecutorial and police discretion run the real risk of becoming exercises in arbitrary governance. The perception of arbitrariness may confirm a general belief in the special character (or illegitimacy) of statutes (or some or all of them as perceptions of patterns of the exercise of discretion are circulated among the population).
Arbitrariness in this context can be understood in one of two guises. In one sense, an overpopulation of statutory and other sources of formal criminalization of conduct can give rise to individual arbitrariness. That is, individual prosecutors and police may see in the possibilities of selective enforcement (under the cover of an exercise of legitimate discretion) the ability to serve either their personal ambitions or the goals and interests of sub-national communities they may serve. In either case, enforcement loses its rule of law character and becomes the sort of expression of personal power Americans are quick to criticize (and rightly so) in places like the People’s Republic of China. This is the sort of discretion that is personally corrupt. In another sense, statutory overproduction can reduce individual prosecutorial discretion, by vesting that discretion at a higher level of governance. For example, the Attorney General of the United States might be tempted to order his prosecutors to concentrate on the prosecution of certain violations and the positive neglect of others. While this is not extraordinary, it can become itself a course of corruption, and the negation of rule of law, when the motivation for such orders are grounded in personal or political motivations. There was a taste of this in the United States when, under the Nixon administration an enemies list was prepared. This is the sort of discretion that is institutionally corrupt. Ironically, developed states have long sort to combat this sort of systemic corruption in developing countries in the name of the advancement of rule of societies. Yet each of them run the risk of embracing this form of corruption themselves.
A government seen to be acting arbitrarily is one that loses legitimacy. Its officials are less respected, to be sure. But more importantly, the offices they serve become less respected as well. A state whose apparatus becomes less legitimate wields less and less authority. This loss of authority may well be reflected in the increasing penchant toward legislation as a means of attempting to compel obedience among a population increasingly convinced that its government is less legitimate, at least in the way in which it chooses to exercise power.
No longer just a problem of developing states, developed states, and common law states increasingly embracing a civil law notion that law must necessarily spring from acts of a legislature, must be on guard to the risks of legislative binges. Justice Mummery suggests, quite rightly, that states seeking to preserve the legitimate of its institutions and the authority of its law making, must exercise those powers of legislation sparingly. But, if law does not necessarily provide the solution to problems and legislation does not evidence the attainment of solutions to those problems, then to where might citizens (and the state) look to solutions? Ironically, though not surprisingly given the tenor of this essay, the answer lies outside the state, and outside its governance mechanisms. It lies first in the cultivation of strong systems of deeply believes morals and ethics that serve as a foundation on which conduct can be judged and behavior channeled. Ironically, the elites in the People’s Republic of China have begun to understand this, at some level. Their much mocked ba rong ba chi (eight honors eight disgraces) campaign evidences a government seeking to create a foundation of ethics on which to build a self enforcing rule of law society. See Liu Dan, New Moral Yardstick: 8 Honors, 8 Disgraces¨, Xinhua News Service, April 5, 2006. Larry Catá Backer, Ideological Campaigns and the Creation of a "Higher Law" in China: "Ba rong, ba chi" or the "eight honors, eight disgraces, "Law at the End of the Day, Aug. 6, 2006.
But American and U.K. elites are out of practice in discussions of morals and ethics. They have abandoned the field. Either all morals and ethics are entitled to the same deference within a single political community, or the imposition of a single morals and ethics within a political system somehow violate the human rights of the disparate groups that inhabit every state. Either view is reasonable in small doses. At their limit, both are essentially decadent. Together they lead to political disintegration. I have suggested one of those paths to disintegration—the substitution of law for ethics and morals and the destruction of rule of law systems.