Tuesday, July 10, 2018

The Letter and the Spirit of the Law

Here's a timely chicken-and-egg question for you: which is more important, the letter of the law or its spirit?

This is no trivial question, especially during these times when an increasingly law-and-order focused administration* applies a no-tolerance policy emphasizing enforcement of the strict letter of the law, particularly in immigration-related cases.

What do we mean by letter vs spirit?

Traffic laws provide the simplest example. The most common highway speed limit in the United States is 55mph (roughly 88kph, for those of you in more advanced countries). If we follow the letter of the law, every car traveling 56mph or faster should be ticketed ... which is clearly impossible. In such cases, it's the spirit of the law that's important - an appropriate maximum speed has been decided upon** for most situations on a given stretch of road, but police officers have broad discretion as to which speeders they pull over. My personal experience is that if you are moving with the flow of traffic (neither significantly faster or slower), not driving recklessly (tailgating or weaving in and out of traffic), and not dangerously far above the limit (say, more than 20mph over), you will not be ticketed even though the letter of the law says you should ... the police generally apply the spirit of the law (maintenance of traffic safety) rather than its letter in order to keep traffic moving safely.

Emphasizing the letter of the law rather than its spirit can lead to significant abuses of authority, as when police use abusive speed traps to raise funds, or use obscure transgressions as a pretext for other actions that might otherwise be illegal (using a broken taillight as an excuse to search a car for drugs or weapons, for instance).

This is what we see happening today in the application of immigration laws on the southern border.

The spirit of immigration laws is a worthy one: to protect the nation from unregulated immigration and - indirectly - to protect would-be immigrants from exploitation by the unscrupulous. But enforcing the letter of the laws by criminalizing every illegal border crossing and by separating children from their parents has the opposite effect: it diminishes our moral standing in the world, unnecessarily overburdens our courts and social services, and distracts law enforcement personnel from addressing the more serious threats of drug smugglers, terrorists, and human traffickers.

Writing laws is both easy and hard. It's easy for Congress to dash out a new law quickly in an attempt to be seen to be doing something about a problem, but it's hard to come up with an effective law that will satisfy every person and group with a stake in the issue. A law needs to be specific enough to be enforceable, yet flexible enough to allow some discretion in its application ... thou shalt not kill is pretty specific and enforceable, and yet we have laws providing differing penalties for first, second, and third degree murder, voluntary and involuntary manslaughter, justifiable homicide, etc, which allow for some discretion in how the illegal deprivation of life is prosecuted.

So, is the letter of the law or the spirit of the law more important?

Because it is all but impossible to write a law that covers every specific combination of circumstances, I suggest that it's the spirit of the law which is more important - what is the goal the law is meant to achieve, and will a particular verdict advance that goal?

What's your view? Leave a comment and share your thoughts.

Have a good day. More thoughts coming.


P.S. - I'm reminded of the old joke about lawyers: If the law is against you, argue the facts. If the facts are against you, argue the law. And if both the law and the facts are against you, go on television and yell like crazy.


* The focus on strict law enforcement does not apply, oddly enough, to transgressions committed by members of the administration itself. And Donald Trump has just nominated to the Supreme Court a man who seems to have the view that the president is above the law. Go figure.

** Here's a pretty good explanation of how speed limits are determined.


Mike said...

The police are using the spirit of the law when they pull you over and give you a warning instead of a ticket.

Elvis Wearing a Bra on His Head said...

There's less disagreement about the letter of the law than what is inferred to be the spirit..

eViL pOp TaRt said...

This is a tough one.

Mariette said...

Who decides what is the spirit of the law?