The Railing on the House

An IllAdvised Opinion on 'pre-guilt' laws

Russ challenged me to get rid of 12 laws, and I got rid of 12 thousand. (Truth be told I don’t know how many laws my ‘mens rea’ admonition would get rid of, and neither does anyone else. Our legal system is so incredibly complex that I don’t think a dozen lawyers with a dozen aides worked for half a year they could have an idea.) And now I am going to get rid of 12 million. (see comment above).

I believe we should get rid of every law that involves something that hasn’t happened yet. Let us go back to the foundation for our laws (and all laws), the Scriptures:

When thou buildest a new house, then thou shalt make a battlement for thy roof,

that thou bring not blood upon thine house, if any man fall from thence.

Deuteronomy 22:8

Here is an example of a Scriptural law. Or, rather, a case law. I believe that the best analysis of Scriptural laws is that there is one, which produces two, which produces ten, which are worked out in hundreds of case laws. But be that as it may, let us look at this law. And let us see what is missing.

What is missing, at least in one sense, is the punishment. The law merely says ‘don’t do this’, but it provides no punishment. At least, none in the style we are used to.

Because the law does state a punishment: “Bring blood upon thine house’. And it also lists a further condition for that punishment, ‘if any man fall from thence’. So the ‘punishment’ is the bringing of blood, and the condition for the punishment is… someone falling. (And presumably being injured or killed).

We notice that the punishment is not triggered by the mere building of the house without a fence around the roof. (You can read long articles and commentaries explaining that these were flat roofs, and used as a room of the house.) It is triggered when someone falls off the roof that you have failed to fence.

Now one can debate if this blood guilt would trigger other parts of the law. Perhaps one could even be executed for it. And there is much talk of this law applying to other areas, such as a well or a pit. But what can’t really be debated is that it doesn’t call for an Israeli building inspector to come along and execute someone if they don’t have a railing around their rooftop!

Which brings us to the kind of law I would eliminate: any law that has the punishment be triggered before an actual triggering event. Thus drunk driving would not be punishable…

But the remaining laws would be stronger. Drunk driving would not be punishable, but killing someone while drunk driving would be murder. Possession of drugs would not be punishable, but someone being injured when you are under the influence would be.

In every area of justice, in order to move toward true justice and away from our perverted system, one must consider all aspects of the law, and some more than others. So in this system, getting rid of laws which apply ‘pre-event’ as it were, we need to look to the judgement of guilt and punishment  on the other end. Speed limits would not be enforced, but accidents involving high speed would be much easier to judge and punish.

Let us assume that the goal of our current laws is to protect life. Let us also assume that the goal of the current laws is to punish the guilty. The way we currently go about this is to watch for and punish those who dive while intoxicated and then to punish those who kill people in driving accidents.

Note that we still call them accidents. However we don’t think of them that way, at least not fully. You can’t be guilty in an ‘accident’. That goes against the meaning of the word ‘accident’.

So what I am proposing is that the proper thing to do, the just thing to do, is to change both of these. Starting with the ‘accident’ I propose that we write a rule that when someone dies or is injured because of our guilty actions we should not call it an ‘accident’ and treat it as such. We should treat this ‘accident’ as an in intentional act, because that is the way it began

When you build a house, a flat house, a flat house with a roof which you intend for people to walk around on… then you should be held guilty if someone walks around on your flat roof and falls off because you didn’t put on a railing. Guilty of murder.

Similarly you should be guilty if you take drunks, drink alcohol, or drive to quickly… and kill someone. You should be guilty of wilful, intentional, murder. You should be executed.

So here are the twelve million laws I would get rid of… of every single law that involves a ‘pre-event’. But balancing it with new rules of guilt and punishment for the ‘pre-guilty’.