“Law professors and lawyers instinctively shy away from considering the problem of law’s violence,” says Yale law professor Stephen L. Carter. “Every law is violent. We try not to think about this, but we should.”
Carter, one of the most astute legal minds in America, rightfully points out the inherent violence embedded in the law. But he draws some unfortunate conclusions from this fact:
On the first day of law school, I tell my Contracts students never to argue for invoking the power of law except in a cause for which they are willing to kill. They are suitably astonished, and often annoyed. But I point out that even a breach of contract requires a judicial remedy; and if the breacher will not pay damages, the sheriff will sequester his house and goods; and if he resists the forced sale of his property, the sheriff might have to shoot him.
This is by no means an argument against having laws.
It is an argument for a degree of humility as we choose which of the many things we may not like to make illegal. Behind every exercise of law stands the sheriff – or the SWAT team – or if necessary the National Guard. Is this an exaggeration? Ask the family of Eric Garner, who died as a result of a decision to crack down on the sale of untaxed cigarettes. That’s the crime for which he was being arrested. Yes, yes, the police were the proximate cause of his death, but the crackdown was a political decree.
The statute or regulation we like best carries the same risk that some violator will die at the hands of a law enforcement officer who will go too far. And whether that officer acts out of overzealousness, recklessness, or simply the need to make a fast choice to do the job right, the violence inherent in law will be on display. This seems to me the fundamental problem that none of us who do law for a living want to face.
But all of us should.
On my first reading of this passage I completely agreed with Professor Carter (who is, unfortunately, no relation). But after giving it some thought I realized it obscures more than it illuminates. To understand where he errs, we must first ask, “What is the law?”