Summary of “Laws that are Made to be Broken”
In “Laws that are Made to be Broken,” Edwards introduces the identification principle, a proposition on the limitations to the means of criminalization that seeks to exclude unjust targeted law enforcement from a state’s system of justice. He argues against a particularly harmful type of law, a law that is made to be broken, which violates the identification principle.
Edwards is concerned with the means of criminalization rather than the ends. The ends of criminalization, whether it be to reduce harm as argued by Mill or to sustain a system of equal liberty as argued by Ripstein, can be reached by means of compliance or conviction (Edwards, 589). Edwards creates a distinction and focuses his discussion between two types of laws with different reasons for using the means of criminalization: laws that are made to be followed (LMFs) and laws that are made to be broken (LMBs).
LMFs function mainly to prevent certain behaviors that directly violate the ends of criminalization, like preventing wrongdoing, by means of compliance and suggest means of conviction only when the person has proven to not be compliant. LMBs are used to make preventing violation to the ends of criminalization easier by allowing legal officials and institutions to convict people for typically permissible behavior when it could be related to the crime (Edwards, 590).
Say for example, we are justified to criminalize robbery because it prevents harm, a potential end of criminalization. An LMF might say that one is not allowed to steal from anyone else and if one does steal, they can be punished for stealing. It may, however, be difficult to prove that someone has stolen from another person in court. It may be easier, instead, to create laws against the ownership of burglary weapons, like a screwdriver, so that if the robber is in possession of a screwdriver, the court can convict them of a crime and prevent future robberies without having to prove that the robber in question has actually stolen. A law that does not allow people to have screwdrivers is a law that is made to be broken to assist the criminalization process achieve the prevention of robbery.
Edwards introduces the identification principle as a necessary limitation of criminalization to uphold the “rule of law,” or an ideal for laws and legal systems (593). The principle is concerned with when institutions that enforce laws can identify someone as criminal relative to triggering conditions, or the behaviors that a person performs that can lead to their arrest and conviction. He then demonstrates that LMBs violate the identification principle and thus violate the rule of law.
The identification principle states that only specific officials and institutions with power to criminalize can identify someone as criminal and they can only identify someone as a criminal if they have determined that the “applicable triggering conditions” are in place. Similarly, the identification principle states that if the triggering conditions have not been satisfied, then the officials and institutions ought not to identify the person as criminal but rather identify the person as someone they ought to protect from the criminal actions (Edwards, 594). Many of the situations that violate the identification principle contain some sort of pre-identification, or the identification of someone as a criminal before determining that the person has actually committed the crime (Edwards, 595).
To make a case for the necessity of the identification principle, Edwards imagines a state that does not conform to the principle and comes up with three reasons why we need it. First he argues that without the identification principle, law enforcement lacks transparency (597). State officials and institutions can get away with pre-identifying someone as a criminal on account of unjust biases and prejudices on supposedly unrelated aspects like race and religion. Second, Edwards states that if people can be arrested because they have been pre-identified as a criminal even though they have not committed a crime, then people have an increased risk of being ambushed by arrest and punishment without even being able to expect it (597–598). Lastly, Edwards argues that pre-identification takes away a person’s voice to defend themselves and disrupts the fair balance of trial (598). The consequences of not having the identification principle in place, as demonstrated, violate the terms of an ideal society.
After claiming the necessity of the identification principle, Edwards argues that lawmakers who make LMBs violate the identification principle because the laws are only enforced when a person has been targeted and pre-identified as a criminal (600). It is the very purpose of LMBs to provide a way to legally pre-identify someone by refocusing the conditions of the arrest to easily identifiable behaviors that are sometimes permissible. Since the very structure and purpose of LMBs violate the identification principle, Edwards is able to conclude that LMBs are to be excluded from legal systems that seek to abide by the rule of law.
Edwards, James. “Laws that are Made to be Broken.” Crim Law and Philos (2018), the Authors, 2017, https://link.springer.com/article/10.1007%2Fs11572-017-9442-9. Accessed 15 September, 2020.
