The amount of law is relatively small which a modern legislature can
successfully impose. The reason for this is that unless the enforcement
of the law is taken in hand by the citizenry, the officials as such
are quite helpless. It is possible to enforce the law of contracts,
because the injured party will sue; it is possible to enforce the law
against burglary, because almost everybody will report a burglary to
the police. But it is not possible to enforce the old-fashioned speed
laws on the highways because the police are too few and far between,
the pedestrians are uninterested, and motorists like to speed. There is
here a very fundamental principle of modern lawmaking: insofar as a law
depends upon the initiative of officials in detecting violations and in
prosecuting, that law will almost certainly be difficult to enforce. If
a considerable part of the population is hostile to the law, and if the
[p277] majority has only a platonic belief in it, the law will surely
break down. For what gives law reality is not that it is commanded by
the sovereign but that it brings the organized force of the state to
the aid of those citizens who believe in the law.
What the government really does is not to rule men, but to add
overwhelming force to men when they rule their affairs. The passage
of a law is in effect a promise that the police, the courts, and the
officials will defend and enforce certain rights when citizens choose
to exercise them. For all practical purposes this is just as true when
what was once a private wrong to be redressed by private action in law
courts on proof of specific injury has been made by statute a public
wrong which is preventable and punishable by administrative action.
When the citizens are no longer interested in preventing or punishing
specific instances of what the statute declares is a public wrong, the
statute becomes a dead letter. The principle is most obviously true in
the case of a sumptuary law like prohibition. The reason prohibition
is unenforceable in the great cities is that the citizens will not
report the names and addresses of their bootleggers to the prohibition
officials. But the principle is no less true in less obvious cases,
as, for example, in tariffs or laws to regulate railroads. Thus it is
difficult to enforce the tariff law on jewels, for they are easily
smuggled. Insofar as the law is enforced it is because jewelers find
it profitable to maintain an organization which detects smuggling.
Because they know the ins and outs of the trade, and have men in all
the jewelry markets of the world who have an interest in catching
smugglers, it is possible for the United [p278] States Government to
make a fair showing in administering the law. The government cannot
from hour to hour inspect all the transactions of its people, and
any law which rests on the premise that government can do this is
a foolish law. The railroad laws are enforced because shippers are
vigilant.
Public-domain text, read in full here on John Shaqi.
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