Everyone who has children, or even nieces and nephews, understands that you have to warn a child before punishing him or her. If not, you teach the child a rash of bad lessons, like these:
Punishment can rain down upon you at any time, with no warning.
The world can't be predicted.
There are two kinds of people: those who order and punish and those who obey or suffer.
The line between what is punished and what is not is unknown.
Trying new things brings you shame and pain.
I doubt that any of my readers would consider these as healthy attitudes for a child to assume. And that's why we warn before we punish. We want them to understand that there are rational reasons for punishment, and we don't want them cowering in perpetual fear.
Warning, then, is an essential tool, and yet it plays almost no role in modern law. Which begs the question: Why not?
What Is the Purpose of Law?
The purpose of law is to facilitate beneficial interaction and to minimize conflict. This concept, however worded, is what the founders of civilizations nearly always come back to. The US Constitution, for example, notes that it was written to "promote the general welfare."
So, if warnings help beneficial interaction, why should they be pushed out of law? Consider:
Is it more beneficial to warn the truck driver that he's violating some regulation or to enforce the law, impounding his truck for a week in the process? What are the economies of these two scenarios? Which facilitates benefit?
Is it better to warn the kid with five vape kits and a small bag of hashish or to send him to jail and perhaps condemn him to a decade in prison? Is derailing his promising life a factor to be considered at all? Or must we shut down our minds in the face of "it's the law"?
Would it be better to warn a small business that they're late on a tax deposit, or should they be ruined instead? Which makes life better for more people?
It's obvious in all of these cases – and we could add many more – that warning is far better at accomplishing what law is supposed to accomplish than slamming people with laws that are held above question.
Why, then, does the law not warn?
What Has Happened
The use of warnings has historically been common and often mandatory. Even the Romans (no bleeding hearts, they) nearly always warned before they struck. As historian Paul Johnson wrote,
Roman law tended to sleep unless infractions were brought to its attention by the external signs of disorder… Then it warned, and if its warnings were unheeded, acted with ferocity…
Even into my lifetime, beat cops used to warn people who were passing into criminality. (Hopefully at least a few still do.)
What has happened is that law has been subverted through a long, slow process. At any given point in the process, it was easy to see it as simple adaptation and often as improving the system. The net result, however, has been the degrading of law.
Justice, in more or less the whole of the Western tradition, was held above the ruler. But once the rulers could create endless streams of new laws – thereby imposing outcomes upon judges and juries – law was submerged below rulership. Previously (as under the common law), judges sought justice, and the legislated edicts of politicians were all but absent.
Here are two specific changes that ejected warning from the practice of law:
The loss of nullification. Nullification by juries was the final check on the excesses of legal systems. During the American Revolution, for example, several famous cases of nullification – juries flatly defying judges – were crucial to the survival of dissent, and because of that, it was clearly acknowledged by the new US justice system. Over the years, however, it has been beaten back to nearly complete exclusion. And when modern judges worry that nullification might rear its head, they apply threats. (As during the Ross Ulbricht trial.) As a result, juries feel powerless compared to a judge, whereas the opposite is generally the healthier situation.
A belief in the adversarial process as a guarantor of justice. Making sure that everyone gets to tell their story is central to justice; a belief that might makes right is something far different. In far too many cases – and nearly always in prominent cases – the process of obtaining justice has become a battle between intellectual gladiators, with government prosecutors (not coincidentally the best funded) winning a shocking percentage of the time. This is not a process that is open to the use of warnings.
These two examples, however, are merely part of a larger process, that of politics overtaking everything else in our civilization, including ethics. And when the ethical becomes the political, power overcomes justice.
Power, as has been noted before, seeks nothing so much as more power. Under that mindset, whatever limits or insults power is an enemy… it becomes the crime of lèse-majesté, of injuring the honor of the ruler.
It's important to understand that lèse-majesté is not a physical thing like damaging persons or property. It is, rather, an emotional thing. With rulership unrestrained by a superior and separate ethics, lèse-majesté becomes anything that portrays power as something to be limited. And warnings do not feed power. Rather, they starve it.
What's good for power is blind faith and blind obedience, and warnings oppose blindness of both forms. And if the law warned rather than striking first, there would be far less fear among the ruled, and that's not good for power either.
In the End…
More could be added to this subject, but I think I've covered the essentials. In the end, the situation boils down to this:
Warnings clearly help accomplish the true goal of law: beneficial interaction. But they oppose the demand of power to be blindly honored. Therefore warnings have been pushed out of the practice of law.
Further, we can expect this situation to remain as long as politics reigns as sovereign over law and as an angry lord over society.
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As it turns out, history was never too hard to understand; they just told you the wrong story.
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