critical application on Edwards
Edwards in his article, “Laws that are Made to be Broken” argues that “criminal law should not contain laws that are meant to be broken” (p.588). He then goes to illustrate his claim in 4 different sections; Two Types of Law, The Identification Principle, Identification and LMB, and the Conclusion. I believe his claim about criminal law applies to the issue of marijuana legislation. In this type 4 analysis, I will explain Edwards assertion and relate it to the modern issue of marijuana.
In the first section titled, “Two Types of Law”; Edwards asks the question, what is morally permissible to be a crime. He goes on to list to three different qualities of laws: reason/permissibility, normative/motivating, and ends/means. Laws can be both preemptive and responsive but not mutually exclusive. Additionally, there are two types of laws themselves. Lawmakers who make laws with the goal of compliance, which are known as laws that are meant to be followed (LMF). The other type of law comes from lawmakers who make laws with the goal of conviction, which are laws that are meant to be broken (LMB). Edwards explains all of these qualities of laws in order to establish the difference between LMF, and LMB. He centers the rest of his article about LMB.
The second section, “The Identification Principle”, is mostly Edwards thoroughly explain the Identification Principle. There are three aspects to it: “A: specified officials or institutions are empowered by law to impose particular duties
B: those powers are lawfully exercised only if certain triggering conditions are met
C: the triggering condition require, inter all, a specified degree of confidence (lack of reasonable doubt) on specified grounds (evidence presented at trial) in specified facts.” (p. 594). Edwards claims that officials and institutions are breaking the Identification Principle through something called pre-identification. Pre-identification is where an official or institution imposes a duty that they are not responsible for. Edwards gives multiple examples of this issue, such as a mayor asking the police to find evidence to arrest someone. The mayor does not have the duty to arrest, only the police do.
The third section, “Identification and LMB,” ties the argument together. Edwards states that LMB inherently break the Identification Principle due to new laws requiring different triggering conditions. These conditions are typically very general, and are mainly used simply to arrest someone. An example used by Edwards is having plans to make a bomb. Someone may just google it because they are interested, not as an act of terror.
So how does the Identification Principle and LMB apply to marijuana legislation? Well, it is very easy to arrest someone for simple possession of the drug. You can be charged for having drug paraphernalia, that may not be yours or may be used for a different purpose. You can be charged with possession for having crumbs of marijuana in your vehicle. An officer can even arrest you for suspecting you for being under the influence and driving.(norml.org) A lot of the laws relating to marijuana are LMB.
Overall, Edwards claims that criminal law should contain zero LMB. I agree with Edwards and claim that a lot of the marijuana legislation is full of LMB.
