Lawless legislation

My last post brought up the story of Jack Melton, an elderly man who ran afoul of an obscure law by selling fruitcakes he had made in his own home rather than at a commercial bakery. Last time I wrote about some economic aspects of the story, but there’s another angle that’s also worth looking at.

Melton did not go sneaking around at night, covertly selling his cakes in dark alleys and cackling about how the police would never catch him. Instead, he openly advertised for customers. He clearly had no idea he was doing anything illegal. Why should he have? The rules he violated are likely buried deep in the bowels of some phonebook-sized tome of regulations, and selling homemade fruitcake is hardly the sort of clearly improper activity that a reasonable person would simply assume to be illegal.

This illustrates the limitations of “the rule of law” in America. Usually, that concept includes the requirement that the law be publicly made known in advance, so that citizens know what is required of them and cannot be arbitrarily persecuted. This is a concept familiar to classical liberals and libertarians; Friedrich Hayek in particular considered it one of the cornerstones of a free society. In theory, the United States mostly fulfills that requirement- legislation and the rules of regulatory agencies are public knowledge. (Though even here there are exceptions- for instance, many “anti-gouging” laws give essentially no explanation of what the law requires.)

In practice, the laws and regulations a citizen is expected to follow in the modern U.S. are so numerous, so arcane, so rapidly changing, and often so obscure and so difficult to understand, as to create a situation that is often all but indistinguishable from one where they are kept secret. The problem is aggravated by the fact that only a small percentage of them have any relation to widely accepted customs or moral concepts that one could reasonably expect every citizen to know.

It is quite easy to break the law by sheer chance, and it is likely only because government officials often do not enforce the rules to the hilt at every opportunity- whether out of sloth, compassion, or sheer whim- that many of us are not being blindsided with punishments for obscure infractions on a regular basis. Of course, this also means that a government official often has all manner of entirely legal means of tormenting you, should he take a dislike to you. Indeed, the system would likely be considered completely intolerable even by arch-statists if all the rules were rigorously enforced. Arbitrariness and unpredictability is inevitable, and would be so even if every government official was scrupulously honest and selfless

Obviously, this is a matter of degree- no human legal system can ever have perfect clockwork regularity and predictability, and there are countries much worse than America in this regard. Nevertheless, it could certainly be a lot better, too, and the more numerous and intrusive the laws of a country, the more that country is necessarily characterized by the rule of men and not that of law.