For 41 years, many Americans enjoyed a single-panel daily comic strip, “There Oughta Be a Law” usually with a Sunday multi-listing. It made you laugh and think.
And apparently created a mental mind-set that is still with us today.
Oddly enough, it was John Nance Gardner, Speaker of the House and 32nd VPOTUS, who is remembered for this bit of wisdom: “The trouble today is that we have too many laws.” And that was back in the 1930s when he served under FDR, who got Congress to gush laws like Old Faithful.
(Of course, Gardner also said, “The Vice Presidency isn’t worth a pitcher of warm spit.” Yet another proven fact throughout American history.)
Cornell Law Library tells us: “Malum prohibitum is an act that is not inherently immoral but is prohibited by statute. Common examples of malum prohibitum actions include jaywalking and regulatory violations. Malum prohibitum offenses are generally found in statutes and include many crimes with strict liability components where the offender’s mental state is not relevant for culpability.
The concept of malum prohibitum is contrasted with the concept of malum in se, which describes acts that are inherently immoral regardless of their legality.”
This concept (malum prohibitum) is also found in contract law. Such malum prohibitum contracts are void only if they fall within the area of conduct that legislation labels as “illegal,” but malum in se contracts are absolutely void.
Does this give you a headache? No doubt – and even attorneys rarely understand and apply this idea well. But the idea of too many laws – and not just of the malum prohibitum type – is pretty easy to comprehend.
In large part because we live with it daily.
A website lawshun.com gives us a nice chart, discussing “Laws gone wild” and how rules restrict freedom:
| Characteristics | Values |
|---|---|
| Number of laws | Over 3,000 crimes defined by the federal government, possibly doubled since the last count 35 years ago |
| Redundancy | Many new laws are redundant, as the acts they prohibit can be prosecuted under existing laws |
| Complexity | Laws are often complicated, requiring citizens to consult lawyers or databases to understand them |
| Enforcement | Some laws are impractical to enforce, e.g., bans on the sale of raw milk or horse milking |
| Individual liberty | Too many laws can infringe on individual liberty and decision-making |
| Interpretation | Laws may be open to interpretation, leading to disputes over their meaning and intent |
| Corruption | Laws may be influenced by corruption, special interests, or the desire to control citizens’ behavior |
| Economic impact | Overly restrictive laws can hinder economic success and productivity |
| Distraction | An abundance of laws can distract from addressing more critical societal issues |
It is not, of course, just the FedGov that has too many. States and other nations have the same problem. There have been a good many comics (newspaper and online) about stupid, strange, and just plain weird laws passed in towns, cities, counties, and States. Gary Larson’s Far Side still does that sort of thing.
We often joke about the fact that legislators (at all levels) are just trying to live up to their nickname of “lawmakers” by passing so much garbage. But there is a serious side of that: laws – enforced strictly or not – control behavior. They allow and indeed encourage governments to become more authoritarian, and eventually totalitarian, over time.
Often, laws backfire. Traffic laws being an example. The Netherlands, for example, has found that fewer regulatory signs (backed, of course, by laws) actually improve the safety of traffic in many locations. That is not uncommon in other fields of legal matters.
At the same time, we here at TPOL and most libertarians and lovers of liberty recognize that some law is essential for us to live in liberty. Starting, at least, with the Golden Rule (the Zero Aggression Principle). But how many, and who decides? And who enforces?
What are your thoughts, dear reader? Are TPOL and Gardner right in saying we have too many laws? Or do we constantly need more and more laws as society, technology, and morality change (and warp)?
More on this in future commentaries!
The Price of Liberty 