The Futility of Repeal

Posted: November 20th, 2012 by Militant Libertarian

by Wendy McElroy

As a matter of principle, I am for repealing every piece of governmental legislation in existence. I echo and applaud the sentiment so eloquently expressed by Groucho Marx in the movie Horse Feathers: “Whatever it is, I’m against it!”As a practical matter, I think repealing laws is a waste of time.

There are many reasons to eschew a strategy of repeal. Some reasons have a moral whiff about them. Consider the “legitimacy question,” for example. Government commands people’s obedience because they believe it is a legitimate authority that has a valid claim on their obedience.The claim comes from various sources. There is an appeal to history in which the Constitution is held up like a sacred document. There is an appeal to ceremony by which politicians are sworn-to-duty in pompous circumstances in buildings that resemble temples. And, then, there are elections in which people legitimize positions of power by voting for their preferred master.

Another way to legitimize governmental authority is to plead with it to change, to use its structures and procedures in a foolish attempt to express “freedom.” It won’t work any more than regulating the economy will produce a free market. Government’s structures and procedures are hostile to your freedom and well-being. Until people realize that fact there can be no real change.

Otherwise stated: asking the government for permission to reform its laws means recognizing government’s authority to make law and, so, the request steadies the very weapon being pointed at your temple.Don’t do it. Don’t steady the hand that aims a gun at you.

As compelling as I find the legitimacy argument, the main reasons I eschew a strategy of repeal are logistic. I have seen activists – good and well-intentioned people – spend months of effort and mega-dollars to repeal a law that can be reinstated with ease and no personal expense by legislators. I have seen these people walk away from activism in defeat and cynicism with the realization that they were playing a rigged game in which they had believed. The real problem was their willingness to believe in the first place. And while they believed, a flood of new law was passed for every one that was repealed, however temporarily.

The reformers who wave banners that all reduce to reading “Let’s chip away at the edges” are trying to sweep back the ocean with a broom. It is a fool’s gambit. I sometimes wonder if legislators snicker up their sleeves at reformers whobankrupt themselves – in terms of both money and energy – in campaigns that ask them to pretty please change. Such reformers are playing the politicians’ game. Like the people who vacation in Las Vegas, they should be reminded that the House always wins.

What is the alternative? Instead of repealing laws, people should make them “dead letter.” A dead letter law is one that is still on the books but it is not enforced or enforceable. This is a de facto, real life repeal that does not involve going through the system; all it requires is for individuals to say “no.” The non-enforcement can be due to several reasons. They include,

1) a swing in social attitudes can make enforcement laughable and, so, a non-issue. A law against women exposing their ankles is an example. And, yet, there are many such laws still on the books and, technically, they are enforceable. What has happened is a change in attitude that negates the necessity of repealing such laws. Changing attitudes can be a long process but, unlike repealing laws today that can be reinstated tomorrow, it is a reliable means of creating dead letter law.

2) a sufficient enough number of scoff-laws make enforcement impossible: in short, civil disobedience. Benjamin Tucker estimated that if 10% of the population refused to obey any one law, then that one law could not be enforced. I don’t know what constitutes the ‘tipping point’ nor do I know how the tipping point can be mathematically ascertained. I do know that many laws are currently not routinely enforced simply because the population does not respect them.

Refusing to obey an unjust law is the opposite of working within the system to reform law. Saying “no” withdraws consent and legitimacy from not only the law in question but also from the overriding political structure. Saying “pretty please, will you change for me” gives power to the very people who are oppressing you.

3) there is not enough money to enforce all the laws.A news item caught my eye today. A headline stated, “Not enough funding to completely enforce drunk driving law, local judge says.” What the story pointed to was the problem of throwing DUIs in jail for an extended period. Maintaining prisoners is a money-sink and so the money-grubbing system is balking at enforcement. I have no comment on this ‘strategy’ since I don’t know how activists can influence the state’s internal finances.

Ultimately, the point is that activists waste time and money in trying to repeal laws. They also provide credibility and support to the very system they should be dismantling.

If a law is so unpopular that it can no longer be enforced, then it is de facto repealed…and in a manner that legislators cannot reverse at the stroke of a pen. Repeal laws by refusing to obey them.

 

 

 

 

 

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Comments (3)

 

  1. MrDamage says:

    Interesting thesis, but I believe it is refuted by speed limit laws. Considerably more than 10% of the population break speed limits regularly yet these laws are enforced regularly and with great enthusiasm.

    • Anonymous says:

      Good point, but with one problem: it’s not the enforcement of the law (getting pulled over, receiving a ticket) that matters, it’s paying the ticket that is compliance.

  2. Chris Future says:

    Greece is our future – there the law breaking is not only rampant, its expected. Having a Greek background with many of my relatives there, I get reports on this every time I speak with them. They will never repeal, and in many cases the police don’t even bother to enforce…

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