The question at hand is: when you have a law code, what is the point at which we consider the law code to have no more effective relationship to the conduct of law enforcement, the judiciary, and the executive functions generally? More specifically, when is a government no longer of the laws, but simply of whatever it happens to be or do at the time?
Of course, a state where all of the citizens obey the written law is without any deviation from the law, therefore lawful.
A state where some of the citizens disobey certain laws, but that this disobedience is effectively addressed through direct action by law enforcement would also be said to have a strong relationship with the law codes. Ordinarily, we call such a state a place with “the rule of law”.
A state where some citizens disobey the laws, but that disobedience is not effectively discovered, whether due to lack of law enforcement resources and insufficiently severe TTPs, certainly is a state where the specific laws in question have no effect. However, the officials attempting to enforce those laws might be sincere in their implementation; we call this a “weakly governed state” but the remedy might just be more resources.
The question of whether we think that the laws mean something then boils down to whether we believe that the leaders of the government have exhausted their means to enforce those laws within their economic constraints. That is, if they received foreign aid, they would probably be able to remedy the situation; but if they hold back, or restrain vigilantism, or fail to raise taxes and adequately fund law enforcement, then the country is lawless.
A state where some citizens disobey the laws, and that disobedience is acknowledged by the authorities and not punished in accordance with the law, is certainly a lawless state to the extent to which this disobedience prevails.
Of course, if there is no written constitution/bill of rights, or even a written law code, naturally the government is lawless, as at best, the punishment or reward for the population depends on the whim of the rulers.
To identify whether a government qualifies in each of the above categories, we must specify what is meant by effective enforcement of the laws. There are several axes of goodness on which this is based:
– The timeliness of the enforcement; clearly, if the punishment follows years after the crimes have become known, this is impunity as long as the punishment is delayed. In economic cases, a long delay often directly denies effective justice to the victim, and therefore becomes an outright confiscation, hence impunity for the offense, or impunity for the larger results of the crime (e.g. loss of the business).
– The severity of the enforcement in relation to the crime and the incentives behind the crime; a slap on the wrist is effective impunity.
– The universality of the enforcement; if the law is enforced only for some victims in some situations, then this is impunity for all other crimes.
A real law enforcement force in a free society cannot achieve the ideal of zero impunity. Challenges they face include:
- Inability to identify whether a crime has been committed
- Lack of evidence
- Investigation time lag, prosecution/judgment time lag
- Judgment error, i.e. actually convicting someone who is guilty in cases where the decision is difficult.
These challenges mostly affect the timeliness of the enforcement, although the universality of enforcement could be invoked in certain situations (e.g. rape) where the situations where crime occurs, in combination with the judgment standards, create an environment where even though law enforcement is doing everything they were told, the result is effective impunity. However, in no case should the severity of the enforcement in relation to the evidence (e.g. when you have to strike plea bargains in weak cases, the bargains should be consistent between cases) ever be at issue.
The validation of the magnitude of typical impunities comes through the normal social sciences and experiments: comparison amongst jurisdictions, demonstrations, in certain cases theoreticals, past experiences e.g. DNA, where we have another comparison to identify error rates. These depend on the crime, but you would tend to see something on the order of 70-80% case closure with identification of suspects if you were doing well. That ballpark figure is by no means a lower bound, and in many types of crime, should be far higher.
In the case of economic complaints, the gathering of evidence often takes longer than for a typical criminal case. Time and motion/comparative approach studies also enter into play here, as the speed of discovery/processing evidence is a critical factor in the time to resolution. Even so, for a typical economic crime, the harms get suffered within 90 to 180 days, and then people have to move on with their lives, so if the typical processing goes well beyond that, the second-order effects come into play, and effective justice is denied.
Therefore, when you see the timeliness impunities go above these rough thresholds, then there is either an issue with the resourcing/training of law enforcement, or else law enforcement is deciding not to enforce the law. The resourcing can usually be identified through small-region studies or comparison; the training requires on-the-ground engagement of experts and review of individual cases.
As previously mentioned, there should be no meaningful discrepancies in punishments, and deviations from that should be corrected promptly upon appeal.
Likewise, with the possible exception of certain difficult situations like law-enforcement no-go zones and intent-based crimes, there should never be individuals who escape the reach of the law.
It is historically common to see the impunity exceed the limits, and for the country to enter into states of lawlessness. The matter then concerns the responsible source of the government misconduct, i.e. who is the responsible decision maker. To restore the overall lawful state, and hence to consider the country generally lawful, the people and/or the government must take the appropriate corrective action with/against these individuals.
The redress could include the repeal or modification of laws, the increase of resources and training, or the replacement of specific deviant personnel. Sometimes the laws can be changed so that vigilantism can deal with the issue, or to deal with the problem using a specific strategy, or to change the judgment standards and enforcement technique to improve accuracy and response time. Likewise, the resources and training must be raised to the empirically demonstrated requirements. The officers of law enforcement must be capable of executing the law enforcement strategy without significant deviation. The specific attribution depends on the structure of the state power; below follow examples:
In the autocracy, the king has the ultimate responsibility for laws, adequate funding, and personnel. If the problems persist, the king has to go, along with the noncompliant ministers.
In the pure democracy, the people have the ultimate responsibility. If they are incapable of making the necessary decisions, then vigilantism might help if the problem is not too large, but probably secession or civil war must be undertaken.
In the constitutional republic with divided government, typically you see a legislative body, an executive or prime minister, and a judiciary of varying degrees of independence. The faults with the law and the overall strategy must be corrected through replacement of the members of the legislature. The resources and training strategy also typically lie with the legislature, though the executive may have check. The responsibility for the implementation of training and the replacement of personnel lie with the executive. The judiciary’s role varies heavily based upon the specific structure, but sometimes they become deviant and have to be removed through election or legislative action.
When the problems persist, continually exceeding the thresholds for regular corrective action, the correct approach to the problem changes. In addition to the previous problems, the deviations now raise the issue of the effectiveness of the accountability measures of the law.
In an autocracy, the succession inherently is irregular, and so there is no systematic way of improving that within the general structure. If the king, despite training and appeals, decides not to follow the law, that’s that; if there were checks on the king’s power, it would not be an autocracy. Hence an autocracy, though of course in daily life it can be extremely lawful, is in the end, a lawless form of government, under which no person finally can be secure.
Within a pure democracy, the fault lies with the quality of the people. If the people cannot be trained or motivated to provide justice, the solution must lie again with a change of government type. Such a government only could be considered capable of lawful behavior to the extent that the people are constant in their judgment.
In the constitutional republic, the fault lies proximately with the elected officials, but ultimately lies with the people. Hence, although the actions of the elected officials to comply with the law is the first failure, the long-run failure of the government is whether the people remove these elected officials, providing the opportunity for the necessary changes. If the elected officials don’t fix the problem, and the people don’t hold them accountable, then this constitutes a tacit agreement between the officials and their supporters to deny justice to the aggrieved. At that point, the constitutional republic is naturally void due to the impunity to the constitutional law, and the solution will lie with irregular methods with no relationship to the law.