Critical Mass

Phi Beta Cons pointed out a "scintillating" email from the Harvard dean of freshmen to students today. Follow the link to read the full text of the email which invites students to go and enjoy the "sexxxxxy suggestions." However, the most interesting part is the last line, which extends the invitation to "ALL students of every gender." Every gender? You mean all two of them? Wouldn't that just be both? Perhaps students at Harvard are in for some hot alien sex.

This morning I engaged in a discussion with my peers and a professor regarding the nature of law, among other things.  The specific context of the debate concerned toilet-papering a person's house, and whether such an action should be undertaken with a youth group if a parent protested the activity.  The discussion soon turned to whether or not it would be a legitimate complaint of a parent to say that a youth leader who headed up such an activity was knowingly encouraging youth to violate the law.  (This was operating on the assumption that TPing was illegal in the town because it is considered vandalism, but that the laws concerning TPing were never enforced.)  My professor argued that it was not; I argued that it was.

The rationale behind my prof's and many of my peers' argument was that context is everything; an unenforced law is no law at all.  For example, my prof noted that in many cities spitting on a sidewalk is illegal based on arcane law, but since the law is never enforced the law ceases to exist.  At the same time, this is not to say that any law which goes unenforced is no longer law; for example, though one of my classmates argued that a vandalism law concerning TPing would only be valid if the recipient of the action pressed charges, my prof countered by noting that a rape which went without charges being pressed would be rape nonetheless, and therefore illegal.  It all depends on context.

The rationale behind my argument is that law is law whether it is enforced or not; there are a few caveats, however.  I would assert that law is law not if it is enforced, but if it is enforceable.  For example, I would assume that if a case were brought before a judge concerning spitting on a sidewalk, the judge would throw the case out, saying that the law is no longer applicable.  If this were true, and the consequences of the law could no longer be enforced, then I would argue the law is no longer law at all.  If, however, laws simply go unenforced under general circumstances but can still be enforced if so desired, then I would argue the law still exists.  For example, if students are not regularly prosecuted for vandalizing by throwing toilet paper on people's houses, but an individual could still press charges if so desired, then the law is still law.

I would further argue that existing law falls into one of two categories: valid law and invalid law.  Valid law includes those laws which are known and enforced; speeding would be a classic example.  This is not to say that every violation of the law is prosecuted, but that under most circumstances an effort is made to enforce the law.  Invalid law includes those laws still on the books which are still enforceable, but which are not enforced.  These are laws which, due to their arcane and/or unenforced nature, should largely be removed from the books.  Until they are, however, they remain as existing law, whether followed or not.

To me, the point of recognizing even an unenforced but enforceable law as law is to maintain a consistent philosophical view of law.  I do not believe that one should argue that simply because a law is no longer culturally applicable that the law should therefore be ignored; rather, I would assert that said laws should be declared null and void and removed from the books.  The obvious argument against my view is that it would take too much time to search out all the "invalid" laws, as I so describe them, and that the search for and removal of said laws would be a waste of our legislators' time - an argument to which there is some merit.  One could argue that judges often do this work through our common law system, declaring some laws are simply no longer enforceable (like my spitting example above).  However, this does not resolve the issue of many laws which are simply not brought before the court, as is often the case with TPing.  There is also the question of whether it is socially acceptable and/or morally right to violate unenforced laws.

So what do you think?  Are laws law only if they are enforced?  Does it depend on the context of the law?  Should one attempt to maintain a consistent philosophy of law, holding that all laws are equal and should be considered law until they are repealed?  I would love to hear your thoughts.