Don’t Ask about the Law, but about Its Enforcement

In the fight for the ideas of individual liberty and limited government, we often, and rightfully, argue about legislation. But while we go back and forth on the initiation or the repeal of laws and the regulations that surround them, we tend to forget to think about their enforcement. You could, arguably, have the most repressive laws on the books without actually enforcing them.

Enforcement Is How We Evaluate Seriousness

We evaluate the seriousness of the law in front of us because we can measure the real-life consequences. We’ve all seen these trendy lists of “the most ridiculous bans”, and how they really, really, really, really, really, reaaaalllly fill the internet. Some of them are so odd that we often tend to scrub it off or engage in irrelevant debates over family dinner if these weren’t all made up in the first place.

However, would we really be treating these lists with the same degree of humor if Oklahoma would seriously enforce a ban on for making ugly faces at dogs, if Alabama was raiding homes to find sex toys, or if Austria were to jail people for kissing on a train? Hardly so. We evaluate the seriousness of the legislation that is in front of us, not because it is on the books but because we can actually measure the real-life consequences if we happen to break them.

We even do this with laws that are clearly enforced very seriously, like the repression against speeding, driving under the influence, or drinking in public (depending on the country and city). We break the law anyway because we estimate our chances of being caught to be lower than the pleasure or utility we derive from breaking them.

This has shown to be particularly true for drugs, where even people who are neither poor nor in the general category of those who risk problems with the law break the law because they believe that they won’t get caught.

The Law of the Land… That You’re In

The EU is an interesting case study on very selective enforcement. European Union directives are legislative acts which member states have to translate into national rules, but the way they achieve that is up to them. This leads to situations in which the Greek smoking ban is not enforced at all, while the French prohibition on smoking indoors in public places can make bar or club owners lose their licenses. “The law of the land” becomes “the law of the land in which you happen to be right now”.

All too often, politicians talk about bans on products, services, or behaviors as if such a decision will make the act disappear altogether. They don’t account for economic relevance or desires of the consumer to acquire a certain product or service. If there was only a handful of rules that you would be required to follow, law enforcement would be consequential, yet the multiplication of rules has given the executive the power of selectively enforcing the rules that it likes. In fact, an unenforced law isn’t a law to start with.

No Enforcement? No Problem.

While large parts of Europe stringently enforce rules regarding the prohibition of drugs, countries such as Portugal and the Czech Republic have taken a complete laissez-faire attitude on the topic. Portugal decriminalized the use of all drugs as early as 2001, with amazing results:

“Fifteen years later plentiful data tell a drastically different story from what many predicted. Drug use among 15- to 24-year-olds has decreased dramatically and drug-induced deaths dropped from 80 in 2001 to 16 in 2012. Before 2001 Portugal confined around 100,000 drug users. Within the first 10 years of the policy’s adoption, this number halved. Today Portugal boasts one of the lowest drug-usage rates in all of Europe.”

A number of other countries, such as Denmark, Belgium, or Luxembourg are far from going the whole distance on hard drugs but have considerably softened the repression against the use of marijuana. The pattern here as well is: the less you repress the substance, the less it is a big deal. Despite drug-related health concerns being real and problematic, actual issues arise through the very violent enforcement of these rules.

When special forces bust through people’s doors, and when police militarize in order to step up to violent gangs which profit off of prohibition, the violence of the state becomes truly apparent. When the laws become so numerous that police chiefs can become selective on the ‘which’ and ‘how’ of their enforcement, then we have reached the illiberal state.

The inherent question of the problematic nature of the state is not that of the law, but how it is enforced.