There’s a lot of talk in the United States today about “changing the law,” or that “we need more laws and regulations.” Essentially, there’s a large number of people who believe that the law should be prescriptive – that is, tell us what some parts of society wishes to prohibit and allow – rather than descriptive – that is, follow what a vast majority of society has already decided to prohibit and allow before the law comes in to play. People who are, or aspire to be, public figures show a shocking ignorance of how the law works and so want to introduce or change laws to fit their flawed understanding of the legal system, why civil law is the way it is, and how to utilize it for the problems of today.
Civil (common) law originally began with courts making decisions that were based on reflections of society. That is to say, they made decisions based on, “Society as a whole believes that if someone burns down a barn, they should have to replace it, or at least pay the cost for replacement and loss of use.” Statements like that – where society as a whole had expectations and standards, and the courts were just enforcing what already existed. This method of finding the law described the already existing morality of the society that the courts existed in. There are many advantages of finding the law this way, but the main one is that you can count on your average individual generally knowing what is right and wrong. It is a strong argument for “Ignorance of the law is no excuse,” because the law is just describing what is already expected.
People like Brianna Wu, or Donald Trump, have a different view of the law. They wish to impose their understanding of the law on society, rather than working with the law. In Ms. Wu’s case, she believes that more laws need to be introduced to tell people what we already know – in the case linked above, she wants more laws on top of existing negligence laws, which may have esoteric rules that society doesn’t actually agree with or hold up as an expected standard of behavior. Negligence is something that society agrees should be punished, it is a tort, and yet she wants to prescribe to us even more law on top of (or to replace) that. This will lead to confusion and people potentially violating a law that they didn’t know – and had no reasonable expectation to know – existed. In President Trump’s case, he wishes to twist law so that he can wield the hammer of the State against people who come after him. In no civilized society should individuals be allowed to prescribe law to society that is biased or unfair, and no individual should be allowed to shield themselves against legitimate criticisms. Essentially, society agrees that false and harmful statements should be prohibited – not that individuals should be utterly shielded from all criticism!
Throughout history, people like Ms. Wu and President Trump have used prescriptivist laws to dictate tyranny. It is easy to become a dictator when dissent is silenced, sometimes through execution, and the law is whatever the individual says it is. The United States was founded on the idea that the law should reflect what society already believes. True democracy must reflect the wishes of society as a whole – not of any individual or special interest group alone. To do otherwise is to give up our democracy and replace it with a system of dictatorship – the individual, or the group, dominating the whole.
Prescriptivist law is dangerous. It creates situations where individuals in society are punished by the State for issues that they could not have reasonably known were a violation of the law. By voting in and supporting people who hold the view that prescriptivism is acceptable, those voters are saying that they wish to give up their right to be protected from the tyranny of the State and to pervert justice. This cannot be allowed to stand. Society must be allowed to describe its own morals, and judges must be allowed to find the laws that already exist – not enforce laws created by fiat that do not reflect society as a whole. Anything else discards democracy, and punishes people for things that society does not wish to punish them for.