Date: Mon, 26 Mar 2001 05:28:27 -0700
From: lawecon@SWLINK.NET ("Craig J. Bolton")
Subject: Re: Circular reasoning, logic
To: LIBERTARIANS@LISTSERV.ARIZONA.EDU
At 01:42 AM 3/26/01 -0700, you wrote:
>Why is it that no one ever argues/discusses the circular reasoning found in
>law? For example, resisting arrest is illegal. Doesn't that undermine the
>innocent until proven guilty notion? Wouldn't they *expect* you to run if
>you are guilty? It seems that a cop can make you illegal simpy by trying to
>arrest you and having you rely on your instinct to get away. It seems if
>you are *able* to get away, then perhaps they should let you. In other
>words, they are defining your guilt arbitrarily. Similarly, a police-dog's
>response to your car smell can make it "legal" for them to search your car.
>What's the point of even pretending about probable cause then, if they're
>the ones who train the dogs and interpret their actions? Also, what about
>the phrase "except where prohibited by law", or other times when government
>laws are described as "illegal". The gov't defines the law, so anything it
>says is by definition "legal" (at least within a current scope), and
>everything is legal except where prohibited by law.
>
>So where do lawmakers get off playing illogic games like this? Does anyone
>else notice this and try to get it removed? What up?
>
>ms
>
I don't think that much of this criticism is well informed, or illustrates
"circular reasoning." The Lockian argument for a government is that the
government justice system is the one impartial judge of offenses [against
itself or by one citizen against another]. Police aren't prosecutors or
judges, however. If behaving properly within this framework, their function
is merely to take a suspect into custody. The problems do not arise when
they fulfill this function, as the above primarily suggests, and it is
rather silly to argue that someone running from the scene of a crime when
seeing the police isn't a legitimate suspect.[The issue in the last few
sentences of this post is different from the issue up to that point, as
further argued below.]
The problems with the existing system are, however, two fold. First of all,
the police have extended their role from apprehender to investigator.
Instead of merely "laying hold" of an apparent perpetrator, or one
identified as such by another citizen, they now "play detective" to ferret
out "hidden crimes." Worse yet, prosecutors, who are responsible for
determining who should be charged with crimes, and what crimes should be
charged, are abdicating this responsibility to police. Much of this first
problem is due to the incredibly expanded scope of what constitutes a
"crime."
Second, the Lockian account of what government does is ambiguous. At one
end of the spectrum, it appears that there may not even be a role for
police. [In Locke's time, and for considerable time thereafter, suspects
were "taken into custody" primarily through a "hue and cry" and "citizen's
arrests" and the only equivalent of ur modern police was the Norman
sheriffs.] We are mainly at the other end of the spectrum where judges are
becoming merely rubber stamps for police and prosecutors.