Edwards: Laws that are Made to be Broken
James Edwards, in his article on Laws that are Made to be Broken, makes the argument for the identification principle which, though it has some shortcomings, upholds justice in the most logical and consistent sense. Edwards begins with a description of the main two types of law: those made by means of conformity which are meant to be followed (LMFs) and those made by means of criminalization which are meant to be broken (LMBs).
Though these two types of laws have different ends in mind, there are both primary and secondary ends which might overlap. As Edward argues, LMFs do have criminalization in mind as a secondary goal (in case they are broken) and LMBs do have conformity as a secondary goal (for people who do not wish to break the law). LMFs can be considered a preventative means of the goals of criminalization (reducing harm or offense or upholding sovereignty) whereas LMBs can be considered a reactive means of the goals of criminalization.
Edwards’ first step in making his argument against LMBs is building up a strong case for LMBs. He notes that it is often a criticism of the criminal justice system that too many criminals are not charged and criminalized for lack of evidence. Since the court system alone cannot convict a highly suspect person without proper evidence, LMBs can be made to make an apparently obvious guilty person legitimately guilty on lesser grounds which may be easier to prove. For example, someone who is suspected to be a terrorist (e.g. the person quit their job for no apparent reason that the employer can see, purchased a one-way ticket out of the country, they googled how to make a bomb, etc.) can be arrested prior to a potential attack if an LMB law can be made which specifies the condition/conditions which are consistent with actions of terrorists before they are a legitimate threat and makes these condition(s) a criminal offense. For example, googling “bomb diy how to” could be a made into a LMB and that person can be criminally charged with something like “conspiring to terrorize.” Criminalizing something like this would make it easier to prove and easier to catch a potential terrorist.
Though Edwards notes how LMBs can be helpful, his concern is that they can be a slippery slope to eliminate the need for actual evidence and more importantly criminalize innocent people via misidentification or prejudice. The problem with LMBs is that, even when seeing them optimistically, they fail to show how certain conditions which don’t have to be consistent (not all serious potential terrorists will google “bomb diy how to”) can predict legitimate felonies. They fail to confirm that the people convicted from LMBs are actually guilty, thus making any benefit from LMBs null considering the moral loss of convicting innocent people.
A major problem that Edwards sees in LMBs has to do with misidentifying the innocent as guilty. In defense of Edwards issues with LMBs, he introduces his identification principle. “State officials and institutions may decide that p [unidentified person] is someone on whom d [duties] should be imposed only if the officials or institutions empowered to impose d on p have determined that the applicable triggering conditions are satisfied in p’s case” (Edwards 596). The police’s duties are to arrest and there are certain specific triggering conditions which justify an arrest. The court’s duties are to testify and decide the sentence of the people arrested based on the law. The lawmakers’ duties pertain to the legal structure in place and precedence of court cases and arresting officers. If a person would be arrested for unjustified reasons or for reasons which do not abide by the code of law, they would be pre-identified as a potential suspect. If a person was sentenced to prison because of suspicion or appearance they would be pre-identified as guilty. In the same way, if an LMB presumes that if a person googles “bomb diy” they are a terrorist they would be pre-identifying them with no substantial reason besides appearance and possibly prejudice. Edwards argues that, in a world in which the identification principle is violated, there is nothing to stop racism, sexism, or various other prejudices from actually being upheld by the law. Further, if an arrest or conviction is justified by something as vague as suspicion alone, Edwards notes that the ability for the majority to obey the law and avoid criminalization is compromised.
The means by which the criminal justice system must be practiced with consistency, reliability, and objectivism. Without something like Edwards’ identification principle, we cannot hope to achieve the ends of criminalization correctly.
Edwards, J. Laws that are Made to be Broken. Criminal Law, Philosophy 12, 587–603 (2018). https://doi.org/10.1007/s11572-017-9442-9. Retrieved September 15, 2020.