Type One: Laws That Are Meant to be Broken
James Edwards presents a deep dive into two distinct types of laws, components of modern day criminal justice system: laws that are meant to be followed and laws that are meant to be broken. In “Laws That are Made to be Broken,” Edwards introduces his argument with the differentiation between criminal ends and means. Ends consists of the outcome an individual or society desires for their own purposes and means are the ways and steps taken to assure the outcome is achieved. Edwards revolves his essay around criminalization’s means, how lawmakers seek to criminalize behaviors and states to achieve the ends of criminalization. When addressing criminalization’s ends, or the goal of criminalizing certain behaviors, lawmakers have the fundamental decision to determine if whether a means of compliance or conviction is the best route. Thus, Edwards claims lawmakers who seek a primary means of conviction are creating laws that are meant to be broken.
There are two requirements of the identification principle. In order to uphold this principle, “it requires that state officials, and state institutions, are subject to the law” as well as the people (Edwards, 593). Secondly, “the triggering conditions requires, inter alia,a specified degree of confidence,” implying there needs to be clear evidence of breaking a law before an individual is to be arrested (Edwards, 594). However, it is important to note the relationship between the identification principle, laws that are meant to be broken, and pre-identification. Pre-identification and the identification principle are strictly opposed as the former exposes underlying prejudice by those enlisted with the duty to arrest. Pre-identification can be referred to determining one’s status as worthy of arrest before the individual has set off any triggering conditions, and steps are taken to ensure the arrest. This can happen on different levels of the criminal justice system, including the constable, juror, mayor, and magistrate. Edwards argues that when the identification principle is violated “it increases the risk that we will be ambushed by the law,” (Edwards, 597). Laws should be intended to create predictability so individuals can expect what types of activity is legal or not and their rights if they should be questioned.
As laws are created, the set of triggering conditions accompanying each law are changed. Laws that are meant to be broken are designed with intent to make it easier to target specific individuals or groups prejudiced against and remove the decision of guilt from courts. Edwards summarizes three reasons that illustrate how laws that are meant to broken do not conform with the identification principle. Laws that are meant to be broken transfer the measure of confidence of triggering conditions from courts to police, who determine solely on bias. Also, there is a greater chance of ambush by police as (LMB) lawmakers have incentive to criminalize a broad range of activities. Lastly, creating laws that conform with the identification principle assist the public and gives “a voice in their confrontations with state power,” (Edwards, 601). Edwards concludes his essay stating the identification principle is essentially an allocative principle. Punishment is allocative in itself, giving justified deprivation to wrongdoers. The state should have the allocative task to provide protection to its people.
Edwards. “Laws that are Made to be Broken.” Crim Law and Philos, 2017, 587–603.
