UNENFORCEABLE LAW.

BY

CHARLES S. WHITMAN,

OF NEW YORK.

Certain students of political science have isolated a phenomenon of our legislative and administrative systems, which they have described as "unenforceable laws." These laws, although enacted by the legislative authority with due observance of statutory and constitutional safeguards, are asserted to be fundamentally enforceable. Thus, statutes have been given a new classification either as enforceable or as unenforceable.

Various reasons are assigned for the weakness in laws which renders them unenforceable; it is claimed that either they do not meet with general public approval, or they are favored only by a minority, or they have become archaic. Many of these laws are condemned as sumptuary and interfering with personal liberty and aiming to enforce uniformity of personal habits through state sanction, and some are described more harshly as arbitrary and tyrannical. Unenforceable laws are placed in a twilight zone between innocence and evil, in which transgression is generally indulged, if not with the connivance, at least with indifference, on the part of constituted public authority. The harmful reaction of such a condition is found by these students in the weakening of the restraint of law, the loss of confidence in the administration of justice, and the inefficacy of our governmental system. If this is an evil condition of affairs obviously it can be remedied only in one of two ways-by the repeal of all laws which have proved to be unenforceable or by refraining to observe and enforce them.

The concept of the unenforceability of a portion of our laws has elements of great danger. Its establishment would largely curtail the function of the legislative branch in our scheme of government. In practical effect, it would not even require the initiative or referendum. It challenges certain laws simply because they are opposed by groups of individuals who conceitedly believe that they personify public opinion. Extended to its logi

cal conclusion, this treatment of a great portion of our law would, in my judgment, greatly weaken the forces of our organized social system and jeopardize its security.

The view that laws are or become unenforceable when not in accord with public opinion is purely doctrinaire. The implication that a large mass of our population is not law-abiding is contrary to the observation of those who have had wide experience with the making, administering and enforcing of laws in this country.

Law as the essence of social order in its relation to property and person is coextensive with society itself. Law is mandatory, and it is the mandatory character of law which distinguishes it from religious precepts and moral conventions, observance of which depends purely upon personal predilection. One repeats such truisms apologetically; but the disregard of fundamentals leads to the doctrinaire notion under discussion.

We need not now inquire whether moral concepts or social conventions lead to, or are derived from, law declaratory of positive rules of conduct. In our republican form of government, means and ways are provided for the orderly expression of the popular will, and, when the popular will is so expressed, it is sheer defiance of law and order to segregate laws for enforcement and laws for non-enforcement.

What is the dictate or demand of public opinion or what is popular, is a question not easily answered. The answer depends to a large degree upon the ascertainment of the true medium for expressing the public opinion. Usually, that medium represents a majority of the people, and so reflects the majority desire. But often that medium represents a plurality, which is in fact only a minority of the people. In a state whose people are governed by a constitution, the medium of popular expression is defined and is not migratory.

The authors of this concept of unenforceable law have sought to cast the odium of it upon legislative shortcomings. But criticism for any fault may not justly be confined to that source. The enactment of a law requires merely the exercise of legislative power. But the enforcement of a law calls into play a succession of forces. Laws ordinarily are not self-executory; some laws which deal merely with status operate imperceptibly; but laws

which regulate the disposition of property or the activities of individuals require positive control by various governmental agencies. They require legislative provision as to the instrumentalities and means for enforcement, the exercise of the executive power to compel observance, and the administration of the judicial branch of government, to adjudge transgression. Law enforcement is made up of a long train of functions, the failure of any one of which may leave the rest impotent. It is usually the failure of some individual element, with the resultant inability of the combined elements to function effectively, that renders a law unenforceable.

Not every law depends for its existence upon moral attributes. Many laws are imbedded in the necessity of society for protection from detrimental or destructive influences.

The mere fact that a law is irksome does not prove that it is inconsistent with public welfare. Laws to prevent debauchery of the electorate in Rome met with riotous opposition by the populace, yet does anyone doubt their beneficence merely because they were opposed to popular notions of honesty? The following chronicle of this episode in Roman history is, indeed, interesting (Plutarch's Life of Cato the Younger, ed. A. H. Clough, Vol. IV, p. 414):

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The people were at that time extremely corrupted by the gifts of those who sought offices and most made a constant trade of selling their voices. Cato was eager utterly to root this corruption out of the commonwealth; he therefore persuaded the Senate to make an order, that those who were chosen into any office, though nobody should accuse them, should be obliged to come into the court and give account upon oath of their proceedings in their election. This was extremely obnoxious to those who stood for the offices and yet more to those vast numbers who took the bribes. Insomuch that one morning, as Cato was going to the tribunal a great multitude of people flocked together, and with loud cries and maledictions reviled him and threw stones at him."

The ancient experience of Rome is not perhaps without parallel today. For years, efforts have been made to reform our electoral machinery. Every new effort has been met by some new artifice to evade the law. Laws as to reporting the expenditures of candidates for political office have been made a mockery, and only the most flagrant and crude violations of elections laws have proved

susceptible of prosecution and punishment. Are such laws, therefore, to be classed as unenforceable?

Failures of law enforcement are due more often to organic defects than to popular opposition. The unconstitutionality of a statute voids it. Imperfections in legislative drafting have many times frustrated the object of a particular law. The failure of the legislature to provide the necessary financial means or administrative staff will render a statute dormant. A subservient executive officer can thwart a law. A corrupt or inefficient police administration can defeat or circumscribe the operation of a law. An incompetent prosecutor can render the law futile. Judicial fiat can nullify the effect of a law. Leniency in penalizing violations will make a law sterile.

The subject under discussion finds an analogy in the broader domain of law which is presumed to regulate the conduct of nations toward each other. But very recently the question was debated by lawyers and publicists whether, as so many customary and conventional rules of international law had been swept aside in the holocaust of the World War, international law had not ceased to exist; whether, because these generally recognized rules of international conduct had become incapable of enforcement, international law still survived?

While the great conflict was raging, Elihu Root, as President of the American Society of International Law, on December 28, 1915, taking for his topic "The Outlook for International Law," gave utterance to the following:

"While the war has exhibited the inadequacy of international law, so far as it has yet developed, to curb those governmental policies which aim to extend power at all costs, it has shown even more clearly that little reliance can be placed upon unrestrained human nature, subject to specific temptation to commit forcible aggression in the pursuit of power and wealth. It has shown that where questions of conduct are to be determined under no constraint, except the circumstances of the particular case, the acquired habits of civilization are weak as against the powerful, innate tendencies which survive from the countless centuries of man's struggle for existence against brutes and savage foes. The only means yet discovered by man to limit those tendencies consist in the establishment of law, the setting up of principles of action and definite rules of conduct which cannot be violated by the individual without injury to himself.

That is the method by which the wrongs naturally flowing from individual impulse within the state have been confined to narrow limits. That analogy, difficult as it is to maintain in view of the differences between the individual who is subject to sovereignty and the nation which is itself sovereign, indicates the only method to which human experience points to avoid repeating the present experience of these years of war consistently with the independence of nations and the liberty of individuals."

Apparent lapses in the enforcement of law are largely due to the means and methods of law enforcement, and not to popular sentiment. The enforcement of a law sometimes does fail, but the reason for it will be found in the breaking down of the enforcement machinery and not in the popularity or unpopularity of the law itself. The public is not opposed to the enforcement of laws, nor will the people refuse to observe them even if they are obnoxious to some. Public officials do not suffer in consequence of enforcing laws, provided their conduct in such enforcement is guided by motives free from taint.

I do not wish in these remarks to usurp the province of those to whom has been allotted the discussion of questions of law reform which have engaged the thought of this Association for many years and in the direction of which it has made notable achievement; but I cannot pass the subject without a few observations upon the intimate relation of those questions to the one at hand. Twelve years have gone since the present Chief Justice of the United States, then the President, trenchantly stigmatized the administration of criminal law in this country as a "disgrace to civilization," and indicted the civil side of the courts for undue delays which worked "for the benefit of the man with the largest purse." Many reforms in the administration of the law (and I speak now with particular reference to the criminal branch with which I have long been identified) have since been effected. But numerous laws have been rendered unenforceable because of technical formalism in court procedure. The invalidating of a conviction or the dismissal of an indictment merely because a word was misspelled in an indictment or in a written verdict, or a grammatical article was omitted, has been too often exemplified in our law reports. Trial judges, as a general rule, are still circumscribed too much in their possible usefulness at a trial;