Innocent Until Proven Guilty, So Why Not Legal Until Proven Illegal?-Infopolicy?

February 22, 2012

Zacquary Adam Green

Falkvinge on Infopolicy: February 18, 2012


Before a court can restrict a citizen’s freedom with a prison sentence, it must prove guilt. Why don’t legislatures require the same burden of proof when making laws?

This may seem like a silly comparison; common wisdom would never equate imprisonment with a law being on the books. They certainly don’t feel like the same thing — unless the law in question is unjust, unnecessary, or just plain unwelcome. Take, for example, the US federal government’s law which refuses to recognize same-sex marriage. The fact that, were I to one day marry, I’d have to limit my residence to a select few states — and still be regarded as “single” for federal tax purposes, regardless — certainly feels like imprisonment to me.

Laws, like imprisonment, are a restriction on individual liberty. They are a limitation on what an individual is allowed to do, plain and simple. This is not an argument against laws, in favor of lawlessness; this is simply a statement of fact. Just because some laws are necessary does not change the fact that they do restrict liberty.

And that’s the key thing to think about: we should not restrict anyone’s liberty unless it is absolutely, positively necessary, without a shadow of a doubt. Our court systems already recognize this; it’s arguably necessary to throw a murderer in jail, but it’s not necessary to throw a person falsely-accused of murder in jail. This is why courts require evidence before they will convict an individual of a crime, and then — as a consequence — restrict that individual’s liberty.

Legislative bodies, on the other hand, do not insist on evidence to make laws; they base their decisions solely on the opinions of their members. There is no requirement for these opinions to be based on evidence, which is why they often are not. We regularly take away freedoms based solely on the whims and beliefs of our elected officials, and not based on whether it is necessary to take these freedoms away. Certain behaviors are deemed wrong until proven right — or just wrong, despite proof to the contrary.

For too long, we have seen that beliefs, morals, or sentiments are not an appropriate basis for lawmaking. We are also well aware that they are not an appropriate basis for criminal justice. Why do we allow laws to be made without proof of their necessity, but disallow criminal convictions without the same?

Before acting, courts ask themselves the question: will justice be done? Legislators must begin doing the same.

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