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December 10, 2005

The Spirit Of The Law

Our founding fathers and mothers had an easier time grasping the upside of 'the rule of law, not men'. Not that the late 18th century in North America was some kind of Eden. But, the variety and persistence of capricious interference from across the great pond gave a daily primer on how laws -- principles -- applied fairly were a superior approach to governance when compared with power exercised in pursuit of personal whim.

Viewed this way, the rule of law might be updated for 21st century folks by comparing what it means to go about daily life subject to the 'rules' of well ordered principles instead of personality -- the rule of principle versus the the rule of personality.

Which do you prefer?

Which better serves some sense of being treated fairly in daily life?

Imagine, for example, that you are about to go through a subway turnstile when you notice that a stranger is having trouble getting a token to work in the machine. You make a pretty quick judgment about helping or not helping. In this case, you decide to help and you give a token to the stranger who -- faced with his or her own busy life is grateful for the relief from what promised to be a hassle involving purchasing a better working token. The stranger quickly reimburses you the price of the token.

You're feeling pretty good. Your gesture of kindness is a tiny one. It's not likely to guarentee you any 'lifetime good person' award. Still, it is in small things that we all have our best, most regular chance to 'do good'.

Now, what are the odds that you have read or are otherwise familiar with a 1992 law that prohibits selling tokens to others? Seriously, now. What are the odds? About zilch. About 1 nano-milli-micron away from zilch. Unless, of course, you're a transit cop. Then the odds of being aware of this law rise; say, to fairly high probability.

In our 21st century market democracy, there are, in practical effect, an infinite number of laws on the books. Really. Consider it this way. If you were to sit down and attempt reading every law already written, you could never complete the task because, by the time you even imaginably got toward the end, there would be thousands of new legislated laws -- not to mention adminstrative rulings and judicial opinions.

"Notice" -- that is, some basic notion that we are aware of laws that our actions might violate -- is a key aspect of our aspiration to be ruled by principle instead of personality. Even in hoary England of post-Magna Carta times, though, notice was a difficult matter. Today, though, 'notice' is what lawyers call a 'legal fiction' -- a concept we can, at best, strive for in applying 'the spirit instead of the letter of the law'.

In the token example, the odds of notice are zilch for both of the passengers. The odds of notice are much higher for the transit cop. And that means our market democracy -- our aspirations for living out our daliy lives ruled by principle instead of personal whim -- depend on the actions of the transit cop.

So, now you're the transit cop. What do you do? You, too, must exercise judgment. You must do your best to apply the spirit of the 1992 law -- especially if applying the 'letter' of that law would, in your judgment, actually violate the spirit.

For a moment, let's recast the event itself. The passenger with the extra token sees another passenger struggling and declares, "I'll help you out. But I want $20 for the token."

Or, imagine that the interaction between the two passengers is just as written up near the top of this post -- only instead of using the token to go through the turnstile, the struggling passenger reverses course and exits the station.

As a transit cop doing what you can in your small sphere to practice the beliefs and behaviours attached to the rule of principle versus personality, you might exercise judgment quite differently in these latter two situations than in the first.

Let's say, however, that even in the first described situation, you as transit cop are concerned about a possible violation of the 1992 law. Even then you have some options in applying the spirit of the law. For example, you might approach the donating passenger and inform him or her that there is a law against the sale of tokens -- in other words, you might give a warning for 'next time'.

Or, you might ask the donating passenger to give the money back.

Or, as Susie Madrak of Suburban Guerilla alerts us by way of the Associated Press, you might be a transit cop in Atlanta and choose to handcuff the donating passenger and cite him for a violation of the 1992 law.

This is what you have done -- you the transit cop. This is how you do your job. This is how you choose to exercise your judgment in the pursuit of the rule of principle instead of personality. And, assuming you've had 'notice' of the rather longstanding and pretty well understood ethical notion of 'do unto others', this is how, presumably, you would like to be treated in any analogous situation. Which means, of course, you as transit cop better get on the Web and start reading -- first all the laws of every jurisdiction in Georgia and then onto every jurisdiction throughout the remainder of our market democracy.

Posted by Doug Smith on December 10, 2005 12:29 PM | Permalink