Everyone who has children, or even nieces and nephews, understands that you have to warn a child before punishing them. If not, you teach the child a rash of bad lessons, like these:
- Punishment can rain down upon you at any time, with no warning.
- The world can’t be predicted.
- There are two kinds of people: those who order and punish and those who obey or suffer.
- The line between what is punished and what is not is unknown.
- Trying new things brings you shame and pain.
I doubt that any of my readers would consider these as healthy attitudes for a child to assume. And that’s why we warn before we punish. We want them to understand that there are rational reasons for punishment, and we don’t want them cowering in perpetual fear.
Warning, then, is an essential tool, and yet it plays almost no role in modern law. And this begs the question: Why not?
What Is the Purpose of Law?
The purpose of law is to facilitate beneficial interaction and to minimize conflict. This concept, however worded, is what the founders of civilizations nearly always come back to. So, if warnings help beneficial interaction, why should they be pushed out of law? Consider:
- Is it more beneficial to warn the truck driver that he’s violating some regulation or to enforce the law, impounding his truck for a week in the process? What are the economies of these two scenarios? Which facilitates benefit?
- Is it better to warn the kid with five vape kits and a small bag of hashish (or whatever forbidden substance), or is it better to send him to jail and perhaps condemn him to a decade in prison? Is derailing his promising life a factor to be considered? Or must we shut down our minds in the face of “it’s the law”?
- Would it be better to warn a small business that they’re late on a tax deposit, or should they be ruined instead? Which makes life better for more people?
It’s obvious in all of these cases – and we could add many more – that warning is far better at accomplishing what law is supposed to accomplish than slamming people with automated punishments.
Why, then, does the law not warn?
What Has Happened
The use of warnings has historically been common and often mandatory. Even the Romans (no bleeding hearts, they) nearly always warned before they struck. As historian Paul Johnson wrote,
Roman law tended to sleep unless infractions were brought to its attention by the external signs of disorder… Then it warned, and if its warnings were unheeded, acted with ferocity…
Even into my lifetime, beat cops used to warn people who were passing into criminality. (Hopefully there are a few who still do.)
What has happened is that law has been subverted through a long, slow process. Any given part of the process could be viewed as fixing a problem; the net result, however, has been the degrading of law.
Justice, over more or less the whole of the Western tradition, was held above the ruler. But once rulers could create endless streams of new laws and impose outcomes upon judges and juries, law was submerged beneath rulership. Previously (as under the common law), judges sought justice, and the legislated edicts of politicians were all but absent.
As this process continued, politics overtook society, a far more dangerous thing than is usually understood. Power seeks nothing so much as more power. Under that mindset, whatever limits or insults power is an enemy… it becomes the crime of lèse-majesté, of injuring the honor of the ruler.
It’s important to understand that lèse-majesté is not a physical thing like damaging persons or property. It is, rather, an emotional thing. With rulership unrestrained, lèse-majesté becomes anything that portrays power as something to be limited.
Warnings, of course, do not feed power. Rather, they starve it, and that, to the powerful is the same as lèse-majesté: an insult to their position.
What’s good for power are fear and blind obedience, and warnings minimize both. If the law warned rather than striking first, there would be far less fear among the ruled, and power would have to justify itself rationally.
In the End…
In the end, the situation boils down to this:
Warnings clearly help accomplish the proper goal of law: beneficial interaction. But they oppose the demands of power to be blindly obeyed. Therefore warnings have been pushed out of the practice of law.
Further, we can expect this situation to remain as long as politics reigns as sovereign over law and as a jealous lord over society.
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Paul Rosenberg
freemansperspective.com