Why Does the Law Not Warn?


Everyone who has children, or even nieces and nephews, understands that you have to warn a child before punishing him or her. 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. Which 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. The US Constitution, for example, notes that it was written to “promote the general welfare.”

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 to send him to jail and perhaps condemn him to a decade in prison? Is derailing his promising life a factor to be considered at all? 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 laws that are held above question.

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 at least a few still do.)

What has happened is that law has been subverted through a long, slow process. At any given point in the process, it was easy to see it as simple adaptation and often as improving the system. The net result, however, has been the degrading of law.

Justice, in more or less the whole of the Western tradition, was held above the ruler. But once the rulers could create endless streams of new laws – thereby imposing outcomes upon judges and juries – law was submerged below rulership((Please see FMP #27, where I explained this in detail.)). Previously (as under the common law), judges sought justice, and the legislated edicts of politicians were all but absent.

Here are two specific changes that ejected warning from the practice of law:

  • The loss of nullification. Nullification by juries was the final check on the excesses of legal systems. During the American Revolution, for example, several famous cases of nullification – juries flatly defying judges – were crucial to the survival of dissent, and because of that, it was clearly acknowledged by the new US justice system. Over the years, however, it has been beaten back to nearly complete exclusion. And when modern judges worry that nullification might rear its head, they apply threats. (As during the Ross Ulbricht trial.) As a result, juries feel powerless compared to a judge, whereas the opposite is generally the healthier situation.

  • A belief in the adversarial process as a guarantor of justice. Making sure that everyone gets to tell their story is central to justice; a belief that might makes right is something far different. In far too many cases – and nearly always in prominent cases – the process of obtaining justice has become a battle between intellectual gladiators, with government prosecutors (not coincidentally the best funded) winning a shocking percentage of the time. This is not a process that is open to the use of warnings.

These two examples, however, are merely part of a larger process, that of politics overtaking everything else in our civilization, including ethics. And when the ethical becomes the political, power overcomes justice.

Power, as has been noted before, 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 by a superior and separate ethics, lèse-majesté becomes anything that portrays power as something to be limited. And warnings do not feed power. Rather, they starve it.

What’s good for power is blind faith and blind obedience, and warnings oppose blindness of both forms. And if the law warned rather than striking first, there would be far less fear among the ruled, and that’s not good for power either.

In the End…

More could be added to this subject, but I think I’ve covered the essentials. In the end, the situation boils down to this:

Warnings clearly help accomplish the true goal of law: beneficial interaction. But they oppose the demand of power to be blindly honored. 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 an angry lord over society.

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As it turns out, history was never too hard to understand; they just told you the wrong story.

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Paul Rosenberg

ROSC 5: The Late, Great Chester Cruz

I found the Mueller Sanitarium for the Chronically Ill a few blocks from a place I worked back in the 1980s. It sits almost by itself, at least if you don’t count parking lots, and only a block or so from a rapid transit train. It’s tucked in between a middle class neighborhood and a small industrial park. The building itself is an old brick six-flat, apparently in good condition, and the sanitarium sign in front is almost discrete. It’s easy to see as you approach the building but was clearly not designed to attract attention.
I walked up the stairs with some trepidation. While I have experience with lots of unusual things, deformed people are not my specialty, and it seems that most of us are instinctively turned away from such sights. I honestly don’t think any kind of hatred is involved, or even devaluation per se; it’s just that those things strike us as very wrong. Humans – in our deep instincts it seems – are supposed to be healthy, attractive creatures.
But I had prepared myself along the way, and I was confident that I was ready. I rang the bell and within a few seconds Esther appeared. She welcomed me in and guided me to their “front room,” where I couldn’t help seeing a large portrait hanging, painted fairly well in oils.
“That’s the man who founded this place,” she said. “Chester Cruz. He died when I was very young, so I’m not sure if I really remember him or not, but we all owe him the effective portions of our lives.”
Just then, two old men walked in. They seemed half afraid of my reaction and half happy to meet me.
“You wrote the article on tortured children?” one of them asked.
The man had a badly withered right arm and a twisted torso. He walked with difficulty.
“Yes,” I said, “I did.”
He extended his left hand to me and I shook it.
“Thank you,” he added.
“It was my pleasure, sir. I felt I needed to. Those children deserved to be defended.”
Then I looked at the other man. I had to stop myself from gasping, not because of how he looked, but because I thought I knew him. I have, however, learned not to trust my poker face too well and so I spoke quickly.
“I think I know you… or rather… I used to see you.”
He smiled. Even through a badly damaged and poorly repaired face (this man had obviously been through some horrible accident), I could tell. And by this time, I was no longer concerned about my expressions.
“Back in the 1990s, did you used to walk down the alley between Wabash and State in the very early morning, going north from 11th Street?”
He smiled again. “Yes I did,” he said. “I used to work at the police headquarters there, from 11 at night till four in the morning. They tucked me away in the repair garage, but they kept me on till retirement.”
I had seen this man when I lived on 9th Street and parked on State. When I got up very early in the morning, as I did occasionally, he would appear in the alley like a character in an old film noir movie: his collar pulled up and a fedora pulled down over his face, sticking to the shadows underneath the elevated train tracks. I’ve been tempted several times to write a story about him or at least to include him in a novel. It just never worked out.
I shortly met four other residents, and I’ll get to their commercial efforts next time, but first I want to tell you about the founder of the sanitarium, Chester Cruz.
Cruz was a hunchbacked lawyer. In most cases of this condition (kyphosis), the curvature of the spine doesn’t change over time. But in a small percentage, one of whom was Chester, it gets worse, to the point where it’s almost completely debilitating.
As a young lawyer, Chester looked like he had a bad back or some type of injury. He got tailored suits and covered it up fairly well. And since he was very bright and very motivated, he did quite well in the practice of law.
As time passed, however, Chester’s condition became much worse, to the point where his appearance was a distraction in court. The firm moved him to office work (at the same rate of pay), but Chester’s days were clearly numbered. He could barely stand with his head up after a while. And so, while he still could, he gathered his money, pulled some political favors, and created the sanitarium, securing a permanent tax exemption for it.
Eventually he left the law firm, which, to their immense credit, provided the sanitarium with annual donations through the rest of Chester’s lifetime and several years beyond. The donations stopped only when the firm was purchased by a mega-firm and reorganized.
Chester lived at the sanitarium for the last 14 years of his life, brought people who “needed to be there,” arranged for psychologists to visit regularly (he forced them to wear lab coats to maintain the appearance of a clinic), and created the model of voluntary cooperation that they still maintain.

More to Come

Next time I’ll tell you about their dealings with the outside world, and especially their current difficulties.

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Paul Rosenberg