In James Edwards’ writing “Laws that are Meant to be Broken”, the concepts of “laws that are meant to be broken” and “laws that are meant to be followed” are analyzed under the lens of the identification principle. Edwards begins his essay by laying out the two justifications that law makers produce when creating and enforcing laws. The first one, and the central theme of writing, is LMBs (laws that are meant to be broken) or laws that are created in order to increase prosecutions and convections of wrongdoers. This line of thinking follows a preventive approach to law enforcement, where laws are created in such a way that the convections are more easily able to be obtained based on looser definitions of said law. Edwards uses examples such as the prevention of terrorist acts as the reasoning behind why such laws might be created, and I found this to be the best justification for law makers who follow this line of thinking.
The second mode of thought used by law makers is that of laws which are meant to be followed. These laws can best be described as laws that are clear cut and punish people for their explicit behavior, with these laws being based on compliance with the law rather than trying to take preventative measures. Laws that are meant to be followed or LMFs are meant to be deterrents to crime by simply stating that something is illegal, with convictions being a secondary concern. Edwards gives credence to both of these methods of justification, even going as far as to say that in a lot of ways LMBs do a much better job where LMFs fall short, but the central point of Edwards’ arguments is that when considering the rule of law and the identification principle, laws that are meant to be broken become fundamentally unjust.
Edwards states that the rule of law is ideal for the governance of states and the conducting of judicial matters, with its’ main purpose being that those who legislate and enforce laws are also subject to those same laws, and their actions most follow accordingly. This means that those apart of the legal system are themselves legally regulated, and thus follows the identification principle which states that officials are justified to arrest, prosecute, and convict citizens only when certain triggers as stated per the law have been reached. These identification principles are meant to stop tyrannical usage of the law by those in charge. Edwards states in regards to an example of how LMBs can violate these principles that, “When this is so, p is treated by the state not as a protectee but as a target: steps are taken to make it the case that p can lawfully be arrested because it has already been decided that this ought to occur” (594). This means that when laws become too preventative in nature, they fail to protect citizens against the actions of government officials. Edwards believes that the identification principles and the rule of law allow states to operate under egalitarian democratic principles, and laws that are meant to be broken open the door to unjust harassment and prosecution by law enforcement and judiciary institutions.
