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Tuesday, May 31, 2011

Would you lie to prevent accurate enforcement of an unjustified law?

Here's something I'm thinking about vis-a-vis my article and I thought it might be fun to hear people's thoughts.

If you knew and saw A did X in front of you, where X is a crime that you think is unjustifiably criminalized because at bottom you think X lacked any morally blameworthy feature (e.g., pot possession/handgun possession/eating on the subway, whatever), how many of you would lie if the cop asked you (Did you see A do X a moment ago) or if the court called you as a witness--in order to prevent accurate enforcement of the law against A?

I take it some of you might be willing to lie or not answer if A if A was family/friend--true? But perhaps that would be the case even if X was a justified crime in your mind? In any event, how many of you think you should lie, but doubt you would because you fear the perjury/false statements criminal liability to you if you did? What are some of the other options you think are desirable as a moral agent facing this quandary?

I'd be curious to see what your intuitions are when you tweak the scenario in several ways too:

a) imagine you think X should be permitted conduct but you think the law banning X is nonetheless morally legitimate even if you don't think it's  all-things-considered justified in your view to have a criminal law prohibiting X.  (This is kind of like saying you think the law passes muster under a deferential reasonableness review). Would you lie then?

b)  imagine you think X is impermissibly criminalized because the law is so spectacularly dumb that it couldn't survive deferential reasonableness review (e.g., a prohibition on chess). Would you lie then?

c) imagine you think the law banning X is illiberal (ie. and e.g, it violates a core political right such as free speech) (perhaps X is flag burning). Would you lie then? 

Posted by Administrators on May 31, 2011 at 12:11 AM in Criminal Law, Dan Markel, Legal Theory | Permalink


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How about refusing to answer/testify? That seems like the way to go, and also what people usually do in these circumstances. Unless we're talking about an arbitrary and vicious police state, I don't really see the argument for lying.

Posted by: AF | Jun 2, 2011 1:18:25 PM

I could envision myself not answering and walking away, if possible, if the context were just a dumb law. If we were talking about a truly immoral law (I'm thinking extremes), I hope I would have the courage to outright lie.

Posted by: Jen | May 31, 2011 9:33:10 AM

In both A and B above it would probably matter to me what the punishment was. Suppose the law in A was "no smoking w/in 10' of a door to a business", and the justification for it wasn't to prevent second-hand smoke in the building but just to annoy smokers, in hopes that more of them would quit. That might satisfy A for me. If the fine were, say, $5.00, and I were directly asked by a police office whom I did not think had otherwise bad motives, I would likely tell the truth, in part because I think people generally should comply even with fairly dumb laws. If the fine were $100, I probably would not tell the truth, as I would then think it was at least arguably unjust to impose such a burden, and that the harm to the law as a system might be worse from having such a fine rather than lying. I'm not sure where the line between the $5 and the $100 fine would be. A similar analysis applies to B.

Posted by: Matt | May 31, 2011 7:39:47 AM

I suspect it would, Orin, at least in some contexts: e.g., 18 USC 1001.
That's why I'm trying to tease out what people think they should do vs what they think they would do given the possibility of enforcement against them for the lie.

Posted by: Dan Markel | May 31, 2011 12:31:22 AM

In your hypothetical, does your act of lying constitute a criminal offense?

Posted by: Orin Kerr | May 31, 2011 12:14:05 AM

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