How Police Make Up The Law Intro - Trixie MephistophelesAbigail Thorn Catch this video ad free and uncensored only on Nebula. It’s a hell of a time to be a lawyer ! The US Supreme Court is embroiled in corruption scandals ; the British government wants judges to ignore the European Court of Human Rights ; two prime ministers and one home secretary broke the law whilst in office, and one former president has been indicted ! It is a hell of a time to be a lawyer. Fortunately, I am a hellova lawyer ! Hi ! My name’s Trixie Mephistopheles from the law firm Beelzebub, Beelzebub and Jones. My services cost $500 an hour. And I’m also a lawyer. The law can do a lot of good : protect the vulnerable, give justice to the wronged ! It can also do a lot of bad : intimidate, silence, bully, rob, destroy. As a demon, that’s why I like it ! But quite apart from the law’s effect there’s also the question of what it is. If certain people can just ignore it, why have it there? In England and Wales, less than 2% of [shhh] result in charges. And if that law goes unenforced 98% of the time, what even is the law ? [sirens wailing, cool-ass music] Chapter One : The rules of the game. Trying to Define Law The question of what law is, is pretty important because it has an immediate bearing on whether we ought to obey it. For example, let’s say the law is an expression of God’s will. If God exists, it’s a good idea to do what They say or you could find yourself renting an apartment in Hell where the landlords are almost as bad as London. On the other hand, if the law is made up on the spot by the powerful, then perhaps we have a reason to be naughty ! Let’s try a couple of theories just to get warmed up. Let’s say the law is an expression of morality : there’s good and there’s evil, and the law just writes it down. But there must be more to it than that because sometimes the law can make us do things that are immoral : for example, racial segregation used to be enforced by law. And sometimes the law doesn’t seem to have anything to do with morality whatsoever : for example, pirating academic textbooks. Illegal ? Yes. Immoral ? Well, you’d better hope not. Let’s try again. Say the law is a prediction : if you do certain crimes, there will be certain consequences. But as we’ve already noted, often there are no consequences for breaking the law. In fact, most reported crimes go unsolved. If your employer or your landlord broke the law in their treatment of you, could you afford a lawyer to inflict consequences ? Probably not. Definitely not if it’s me. But the threat of consequences is usually enough to keep people in line. Let’s try that then. The law is a command. This was the opinion of English philosopher, John Austin. He said that laws are expressions of desire on the part of a sovereign, like a king or parliament, that people behave in certain ways. Those desires come to us in the form of a command backed up by a threat of force. Moreover, Austin said that laws are general commands. Kneel down. Bend over. Put on these cat ears. Those are commands, they are expressions of desire, and they are backed up by a threat of force, but they only apply to a specific person, time, and place. Laws on the other hand, are general. They apply over a wide range of circumstances, people, and times. [Voice of Morgana Ignis] Laws or rules, properly so called, are a species of commands. A command is distinguished from other significations of desire not by the style in which the desire is signified, but by the power and the purpose of the party commanding to inflict an evil or pain in case the desire be disregarded. If you are able and willing to harm me in case I comply not with your wish, the expression of your wish amounts to a command, although you are prompted by a spirit of courtesy to utter it in the shape of a request. Austin’s theory has some problems though, some of which we’ve already mentioned. What is international law under this framework ? Not much of a threat of force backing that up, so is it not real law ? If an army invaded your country and started giving general commands for the population backed up by a threat of force, would that count as valid law? Austin’s theory is a classic, but it’s remembered these days more for being a good try than actually making sense. Kind of like the fourth Indiana Jones film : solid effort, but nobody’s favorite. Perhaps we should be systematic rather than stabbing in the dark. The philosopher Joseph Raz says there are broadly three approaches for trying to define law, and the first is to check the dictionary. So, according to the Encyclopaedic Textbook of American law, the law is defined as : "access to the Encyclopaedic Textbook of American Law can be purchased for $400 an hour" ?! Dammit ! The second is to ask a lawyer. And I could do it myself, but I happen to know a human lawyer who owes me a favour. Once upon a time, I gave him seven years of fame, fortune and dashing good looks, and he gave me his soul ! Let’s Ask A Lawyer So please welcome Devin from the channel, LegalEagle. Oh, Devin ! [bell ringing] Yes, Trixie. What is it ? What is the law ? This isn’t even legal advice ! There is no accepted definition of what the law is or is not even among lawyers. I mean, if you ask a normal person, you’re probably gonna get an answer like it is the things that the legislature passes, the bills that then become law and then govern a certain given population. But if you ask a lawyer, they’ll probably get even more granular and they’ll explain that while there are these statutes that are passed by a legislature, a government, there’s also the constitution, as well as the judge-made law. At least in the United States, we have a whole corpus of jurisprudence that is not passed by a particular congress, but it is created in the common law. As cases come before a court, the courts will then decide different things and fill in some of the gaps that are left by the laws themselves, or at least the statutes that have been passed. But then obviously that doesn’t include all of the things that qualify as a law within a given society. You have all kinds of unwritten laws, various formal and informal rules that a given population follows that may not actually be written into the law itself, but you create these norms and morays that people are going to follow. And then of course, even if you’re looking at the laws that are on the books or are created by different judges, not even all of those things are actually followed. So if you have a law on the books that no one actually enforces, is that considered part of the law ? Well, that’s an open question. So there’s definitely a differing of opinion as between laws that are actually enforced by the state and those that aren’t. And then you get into things like informal private laws. Is a contract between one person and another person in which those people agree to do or not do something, does that qualify as a form of the law itself ? And this doesn’t even scratch the surface of the legal positivism debate between H.L.A. Hart and Ronald Dworkin, which I’m not gonna go into because you don’t pay me enough. So yeah, the law is a very complicated and complex subject with absolutely no agreement as to what qualifies and what doesn’t. A typically slippery answer. He won’t be able to wriggle out of our contract so easily ! Thank you, Devin. Yeah, no problem, Trixie. It's my pleasure. Well, fools though these mortals be, Devin did raise the interesting concept of rules and name dropped an important soul with big ideas about what legal rules are : the philosopher H.L.A. Hart. Hart’s Legal Positivism Hart said that a legal system consists of two kinds of rules, primary and secondary. Primary rules require people to do or not do certain things, like "Don’t kill anyone." Secondary rules allow you to alter the primary rules or alter your own position relative to them by saying and doing certain things. For instance, the laws of marriage are secondary rules : they allow you to alter your legal position. If you go through the right processes you could be lawfully wedded. One day. [romantic country music] Perhaps ! But as Devin said, society is full of rules. There are rules like "Don’t kill anyone." and there are rules like "don’t burp at the dinner table.","don’t sleep with your neighbor’s wife." How do we distinguish between the rules of custom and politeness, and the rules of law ? And remember, we can’t pick enforcement as our criteria because laws are often unenforced ! Hart said that at the bottom of a legal system is a master rule called the Rule of Recognition, which distinguishes all law from non-law. To say that a rule is a law is not to say that it is enforced or backed up by anything, merely that it passes the tests set forth in the Rule of Recognition. Those tests might be very simple, like "everything the king says is law." They might be very complex involving constitutions, legislation and courts. It might even (and here’s where things get really devilish) be unwritten ! The test could just be "whatever people accept as law is law." So the difference between legal rules and non-legal ones could be a matter of perspective. Hart goes on to say that there’s a special perspective which comes with genuine legal rules : on one hand you’ve got what he calls the external perspective. That’s when people see the rules as something which forces them from the outside, for example, through a threat of force. But on the other hand there’s the special legal internal perspective, when people see the rules themselves as giving them a reason to act. The fact that the law says, "Do X," means I should do it, not because it’ll be good for me or because it’s moral, but because it is the law. And what we’re really talking about here is people viewing the law as authoritative, as giving them a reason to act. Raz says, imagine you have a dispute with your neighbour : he plants some trees that spoil your view and you cut them down so he sues you. You take that case before an official arbitrator, like a judge, whose job is to consider the reasons on all sides. 'He spoiled my view !' 'He destroyed my property !' 'Well, he only did that because I’m sleeping with his wife !’ And then to replace those reasons with authority : to say that whatever reasons you two had for acting the way that you did, now you get a new final reason to do what I say because I am the law. [Voice of Morgana Ignis] The only proper way to acknowledge the arbitrator’s authority is to take it to be the reason for action, which replaces the reasons on the basis of which he was meant to decide. Dependent reasons are replaced by authoritative directives. I can do a quick demonstration of this replacement idea now. There are many reasons why you should go to patreon.com/philosophytube and support this show. You’d be making me happy. You’d be making the crew happy. We’d get to make more of these episodes for you to watch and enjoy. But I can take all of those reasons and replace them with the authority that I get - from this gun! patreon.com/philosophytube, sign up now, motherf— ! But seriously, when it comes to courts and the law, Raz says the point is not to replace reason with blind force. On the contrary ! You and your neighbour are both going to be biased towards yourselves, but the judge is dispassionate and trained in the law and isn’t sleeping with anybody’s wife except his own. He’s therefore in a better position to be reasonable than either of you. Raz says legal authorities act as a mediator between disputants and reasons, or at least they are supposed to ! The American Supreme Court is under some scrutiny at the moment because some of their judges accepted very expensive gifts that they did not disclose from people who had cases before the court and then ruled in favor of those people. If that is what it looks like then the court would no longer be dispassionately mediating between reasons and disputants, which would therefore undermine its authority. People might be less inclined to take the internal point of view with regards to the court’s rulings, and instead see the law as something forced on them externally. And speaking of enforcement, perhaps we should put the theory we’ve learned so far to the test and see how it stacks up in the real world because law isn’t just for judges and courts. Raz says the third method for defining it is to see how it interacts with institutions. So if we really want to know what it is, then I’ll grab my handcuffs and you pull out your truncheon and let's talk about the police. Chapter Two : Cops and robbers. British Policing & the Law [sirens wailing, action music like bom bom bom bom DUN DUN DUN DUN DUN!] This is "Tango Juliet Foxtrot" by Ian Donnelly. Donnelly was a British police officer for 30 years, and in this memoir he reveals his very interesting perspective on what law and law enforcement is. Spoilers, he doesn’t think like philosophers say he should ! But before we dive in I need to bring my international viewers up to speed on some context because most of my audience is American and policing in the USA is different in some important ways from policing here. In particular, Donnelly talks a lot about austerity, so we need to know what that is. In 2008, the global economy went kerplunk because it turned out the financial part of it was largely built on housing debt that people couldn’t actually pay back. In response, the British government decided not to fundamentally alter the way we do finance or housing, but to cut back massively on public spending. They made huge budget cuts to youth programs, education, the arts, healthcare, just about every government department, cuts which are referred to as austerity. The stated goal of austerity was to reduce the government’s budget deficit. It failed to do that and seems to have resulted in somewhere between 100,000 and 300,000 deaths, which seemed to have been concentrated in the most deprived areas of the country. Many of these cuts are still in effect today, and the politicians responsible have faced no consequences. At time of recording ! Police budgets were included in austerity. So immediately - big difference from the USA ! As I understand it, a lot of American cops are quite well paid and get a lot of fancy new toys from the army, with variation between states of course. - In Britain, police officers pay has decreased in real terms over the last 10 years ; a lot of police stations have actually been closed ; there’s been a big drop in recruitment and there are even reports that some officers are having to use food banks. So when people talk about defunding the police, in Britain, we kind of did ! The trouble is instead of putting that money into social services, we defunded everything. And Donnelly doesn’t pull his punches when it comes to the impact this has had. He says the police have kind of become the only social service left in Britain : people who should be getting mental health care or addiction treatment are getting nothing, their problems develop into crises and the cops have to clean up the mess. Or young people who should be in some kind of education or training have nothing to do, no money, no future to look forward to, and so they turn to crime. At the same time as the workload is increasing, there aren’t enough officers to do the job : everybody’s overworked, underpaid, burning out and getting poached by the private sector. As a result, it’s a great time to start a new career as a criminal !  [Voice of F1nn5ter] Neighbourhood policing is now almost non-existent because of the loss of thousands of police officers, police staff, and the closure of hundreds of police stations. Detection rates for crime solved by the police have plummeted and are now at an all time low. The charge and prosecution rate for total recorded crime in England and Wales started a relatively stable and respectable rate of around 16% in the years leading up to 2015. This figure has steadily fallen year on year to a rather dismal and embarrassing rate of 7% in 2019/2020. Any member of the British public that’s unfortunate enough to become a victim will have little expectation that the police will catch or charge the criminal who is responsible. And for criminals, there has never been a better time to commit a crime in the UK. Donnelly also says the police have to spend a lot of time doing stuff that makes the government happy but which isn’t actually useful. For example, say the directive comes down from the Home Office that the police need to do more to highlight diversity. Some bright spark comes up with an idea, "Hey, let’s send an officer out in a rainbow patterned car and post pictures of it on social media!" and that person gets a pat on the head and a nice promotion. But a lot of LGBT people don’t buy that act for a second and meanwhile there’s actual crimes going unsolved ! Speaking only for myself as an L, not G, maybe B, notorious T, I’m not filled with confidence when I see cops wearing rainbows. One time at a protest I was thrown to the ground by an officer wearing a rainbow pride pin. I paused in midair to appreciate the irony before I collided with London’s uncompromising pavement. Donnelly says all this crap results in a time-wasting management culture within the police force that focuses more on Key Performance Indicators and gathering good data for government reports than actually doing the job. [Voice of F1nn5ter] If a crime was assessed as too difficult or time-consuming to solve, it received very little attention. Whereas crimes that were easy to solve received a gold standard of service because they would generate a Home Office approved detection and points mean prizes. New offenses reported by members of the public in the previous 24 hours were subjected to a microscopic level of scrutiny, not necessary to try and figure out who had committed them, perish the thought, but to reclassify them as something that didn’t get measured. The primary purpose of policing, protecting the public, became almost secondary to chasing Home Office targets, and the rules were pushed to the absolute limit to hit those targets. So this is the context in which Donnelly is writing : British policing is on its arse ! Now we can examine his arguments. I’m gonna be as generous as I can and try and critique them on their own terms. So I’ll start with what I liked about the book. Donnelly’s comments about austerity definitely chimed with what I’ve heard from teachers and doctors who report similar problems with overwork, underfunding, and bureaucracy. And I really like those moments where somebody says something and I go, "Oh, hey, that’s what all these other people have been saying too!" because it’s like, yay, mutual understanding ! He also writes quite powerfully about the link between poverty and crime, and that reminded me that I should stay intellectually humble here. Cards on the table, I’m pretty left wing : I do my best to always be neutral on this show but I’m somebody who at least claims to care about the conditions that my fellow humans live in. But police officers like Donnelly probably see more of the real deprivation and poverty in this country than I do, and that was a sobering thought. Now let’s consider what the law is, as Donnelly presents it. He tells us about the oath he took when he became a cop, which was to serve the queen and keep the peace and to discharge his duties in service of those objectives according to law. And immediately that’s an interesting detail ! According to the oath, the law provides the method for doing the job, but it is not the job itself. Donnelly says the job is to protect people, and that’s also interesting because protecting people and enforcing the law are not the same thing. One would hope that they normally go together but it’s noticeable that Donnelly separates them. In fact, he even says that the law can sometimes get in the way of protecting people, for example, the Freedom of Information Act and the Human Rights Act. And if you’re very clever you’ll already have linked this back to what H.L.A. Hart said in part one. Donnelly seems to be taking the external point of view with regards to the law. He thinks that officers should obey it because if you don’t you’re a liability and because you might get in trouble, but he doesn’t seem to think it provides an authoritative reason to act on its own. So what does ? Donnelly lists the qualities he thinks a frontline officer should have : they should have a good memory and an eye for detail and so on. I noticed that 'knowing the law' was not on that list. He also lists the ways you can spot a criminal : is their body language confrontational ? Are they looking around a lot ? Are they anxious ? And none of the things he lists are illegal. You’re allowed to be anxious in public ! I was anxious when I stepped out of my front door this morning, although in fairness I could have worn a coat. And then Donnelly says this. [Voice of F1nn5ter] An experienced police officer can spot criminal behavior and criminals instantly, not because they’re doing anything dramatic at that moment, but because they behave differently to law abiding people. It’s very hard to describe this sense that someone’s up to no good, particularly when giving evidence in court. A court focuses solely on evidence, facts and verifiable events. This is a stunning admission that policing, in Donnelly’s eyes anyway, does not rely solely on evidence, facts, verifiable events or the law ! And this becomes a bit of a theme with him. By the way, heads up: you are watching the YouTube version of this video, not the Nebula version. There are certain words that I need to say now, which if you say them out loud on YouTube, risk the video getting demonetised, in particular when I’m talking about what YouTube calls controversial events. So the words that I mean will appear on the screen, like this. Donnelly talks a lot about police officers using their discretion, in particular, their power to stop members of the public and search us for [microsoft error noise]. Stop and search is a hot button issue in Britain. A lot of officers think that it’s just a normal crime-prevention tactic that gets needlessly politicised, and Donnelly seems to agree. He says junior officers are too timid about using it, too afraid of being seen as racist or whatever. And that he has personally witnessed officers stop and search members of the public who seemed innocuous to him only to find they were in fact carrying []. presumably not all at the same time! And that’s amazing : the police spidey sense at work ! But I noticed that Donnelly does not cite any statistics about stop and search. And I’m a good little nerd who always does her homework, so I went away and I looked them up. Between March 2021 and '22 in England and Wales there were just over half a million stop and searches performed. Of those, 75% led to no further action by police : no arrest, no formal caution, no charges, nothing. And in fairness we could allow a little bit of wiggle room here because stop and search can be used for the 'stop' part. Like if it’s all kicking off at a protest and the police wanna put the brakes on somebody they can stop and search them, which keeps them in one spot and reminds them to behave. Those stop and search usually aren’t gonna find anything because they’re not supposed to. So okay, let’s give them a little bit of leeway and be generous. But still, it is a fact that when officers use their discretion and instincts in the way Donnelly recommends, most of the time they are wrong. And it’s kind of weird that he doesn’t mention that ? From those same stats I learned that black people in England and Wales are about six times more likely to be stopped and searched than white people, and Asian people about twice as likely. And Donnelly acknowledges that people of color are more likely to be stopped and searched, arrested, charged, imprisoned, spend time in police custody and die in police custody. And he says this has nothing to do with racism and more to do with [] alcohol, poverty, housing, and something he calls "sudden death in restraint syndrome." That piqued my interest because I’d never heard of it. So again, I went and looked it up. The theory is that if somebody exercises very strenuously in a short burst, say, by running away from the cops and then gets restrained, this might do something to their heart or their blood oxygen that then causes them to die, maybe ? There have been studies done on this : here’s just a few that I found with a quick Google. You’re welcome to go and read them if you’re training to be a police officer, or you’re really into BDSM. None of those studies have proven the existence of any such syndrome in a clinical setting. On the other hand, trying to be generous here, maybe some people have pre-existing conditions that are brought on by a struggle or maybe [] are involved. Whatever the truth of the matter, I noticed that Donnelly doesn’t even try to cite the medical literature. He just says "sudden death in restraint syndrome" like it definitely exists and then moves on. And at this point, *my* spidey sense was tingling. I was like Hmm, there’s a Philosophy somewhere in here. Quick, fetch the tube ! I’m going somewhere with this, so stick with me. Donnelly says, time and again, that police officers are not "supported." And part of what he means is that they don’t have enough resources to do the job because of austerity, but he also seems to be using the word 'support' in a different sense. [Voice of F1nn5ter] Officers now have almost no expectation whatsoever of being supported by the courts, the media, the government, or for that matter, their own organization if they make an honest mistake. That’s what people don’t understand about the police. It’s generally not the things that you have to deal with that stress you out. It’s trying to deal with an atmosphere where you know if something goes wrong, you’ll be hung out to dry by the media, by the courts, by the chief officers who will cave to political pressures and won’t have your back. Now look, I don’t doubt that policing can be stressful and even traumatising. Donnelly makes that very clear. He also says that sometimes when you’re a cop, you get put in situations where there’s not really a right answer and you’re gonna get criticised whatever you do, but you have to do something. And yeah, I can see how that would be upsetting. His frustration and his hurt really come across. I understand the emotional core of what he is saying. However, as I’m reading this, I’m wondering 'What do you mean when you say police officers aren’t supported ?' Because the facts show that cops in Britain frequently are supported. Donnelly himself says it’s almost impossible to sack a bad cop. [Voice of F1nn5ter] Challenging bad behaviour, sloppy work, or laziness almost inevitably results in some sort of formal grievance procedure, allegations of bullying or repeated periods of sickness or absenteeism. The systems currently in place for getting rid of lazy or unprofessional police officers are unbelievably bureaucratic, time-consuming and ineffectual. And he's not alone in this opinion. The commissioner of the Metropolitan Police himself was recently interviewed on the BBC and said this. [Voice of Alice Caldwell-Kelly] "Police regulations make this harder than it ought to be in terms of processing misconduct and sacking people. We’ve got some officers who we sacked, but other legal bodies who have a power to reinstate them did. So I’ve got officers that we determine shouldn’t be police officers and yet I have to keep them. I’m the commissioner and yet I can’t decide who my own workforce is. We have some very worrying cases with officers who have committed criminality whilst police officers, and yet I’m not allowed to sack them. It’s crazy." And even when things go really wrong, it sure seems like cops are supported. In 2005, an innocent man named [] whilst minding his own business on the tube. The police officer in charge of that operation, Cressida Dick, was not only allowed to remain on the force, she was promoted. In 2009, a man named []. The officer who did that had 10 previous complaints for excessive force against him but was still on the streets. And then there’s []. There were multiple complaints about him that went nowhere. And of course []. His nickname was literally []. But he was allowed to remain on the force until he did that. So clearly sometimes police officers are supported a little bit too much! And Donnelly acknowledges this ! I don’t think he’s deliberately trying to lie, but I was racking my brains trying to figure out 'What do you mean you’re not supported ?' And the penny finally dropped when he discusses the Macpherson Report. For international viewers, let me give you the quick version. In April of 1993, a young black man named []. The police investigation was a little bit of a dog’s breakfast : there were leads that weren’t followed up on ; it took too long to arrest anybody… So his family started a campaign to get justice and then undercover officers tried to sabotage that campaign ! It was a real mess. So the government ordered an inquiry which concluded that the initial investigation was incompetent and the Metropolitan Police were institutionally racist. That inquiry was called the Macpherson Report. It was a landmark moment in modern British history. And Donnelly says this : [Voice of F1nn5ter] From that time onwards, British policing lost its confidence and became a deeply fearful risk averse institution in which officers started to anticipate calamity around every corner. Even when dealing with quite trivial incidents, police managers had seen the way that anyone even loosely involved with the Stefan Lawrence case had been treated by the courts and by the media and they became terrified of finding themselves in the same position. And suddenly it hit me. Donnelly does not dispute any of the findings of the report. He doesn’t go through it and say, "This is what it says and this is why I think it’s wrong." His problem with it is that it was bad for morale. Just like with stop and search and deaths in custody, he’s not talking about facts. I think when he says officers aren’t supported, what he means is it hurts his feelings when people criticise them. And yeah, I’m sure it does. But genuinely, what do we do when the facts about policing are not kind? Donnelly’s answer seems to be that you ignore them. So, Donnelly’s theory of policing and the law seems to be something like this : 'I make a decision. I make it based on instinct, not facts. You should trust my instincts because I’m a good guy and therefore my decision should not be questioned by anyone who isn’t a cop. In fact, the entire business of subjecting police decisions to reason factual criticism in the public sphere is fundamentally wrong.' Have you ever seen the film "A Few Good Men" ? Basically he’s doing Jack Nicholson in that. We seem to be quite a long way from the idea that the law is based on reasons or rules. Donnelly’s not mediating between reasons and disputes. By his own admission, he’s operating on his subjective judgment. If there are rules in play here they are more vague and wooly than, for example, the rules of computer programming. Clearly we need to go deeper. [spooky thoughtful music like hmmmm yes let me stroke my chin and think about stuff] Chapter Three : The game of the rules Rules with "Open Texture" Let’s think more deeply about rules and see if we can explain all this. Hart said that rules try to set a general standard, and therefore in order to use them we have to decide whether the case we are considering counts as a specific instance of the general type of action to which the rule refers. For example, if the rules say ' don’t kill anyone,' and you shoot somebody, that’s a specific instance, shooting, of the general type of action, killing, to which the rule refers, and we know therefore that the rule applies in this case. But there’ll always be cases where we aren’t sure if the rule applies or not. For example, say you shoot someone but seconds earlier they have a heart attack and get struck by lightning and get hit by a car. Did you kill them ? Is that specific action an instance of the general type to which the rule refers ? That’s an open question. Hart says that rules have "open texture." There are central cases when we know they obviously apply, but there are also fringe cases where we have a "penumbra of doubt." Great phrase ! And that’s a deliberately unrealistic example I just gave, but consider words like 'reasonable,' 'safe,' 'fair,' words used all the time in written law that don’t have precise definitions. They are vague. A famous real life example would be the 1964 American Supreme Court case Jacobellis v Ohio, which revolved around whether the State of Ohio could ban a film they called obscene. The American Constitution protects obscenity except for []. Which it turns out is a vague term ! There’s no precise formula for how much ass needs to be shown on screen for how long and from what angles to count as that, which led Justice Potter Stewart to coin the now famous definition of [] "I know it when I see it !" And what this comes down to is somebody somewhere deciding whether the rule applies. Is it safe ? Is it fair ? Is it reasonable ? Is it obscene ? The words on the page won’t tell you ; a human being has to make a choice. Now, philosophers, including Hart, say that it’s important not to overstate this vagueness. The law is not completely made up with absolutely no constraints. It’s just that sometimes, rarely, a judge has to fill in the gaps. But those same philosophers tend to focus on judges and courts probably because a lot of them used to be lawyers, and I think this idea has more play than they realise because it’s the act of choosing that Donnelly emphasizes. If his views are representative of police officers then the vagueness of law will structure most people’s frontline interactions with it. And we can see this very clearly with a little look at history. [drone music like "Oh this is going to be very heavy indeed"] Case Study - Operation Soap In February of 1981, police in Toronto, Canada conducted Operation Soap during which they raided four bath houses. The legal justification they used was these were "bawdy houses" - brothels, basically, which was against the rules. But these four bathhouses in particular were gay bathhouses. The police assaulted several people, yelled homophobic slurs at them, smashed walls and lockers even whilst being offered the keys, dragged people naked into the snow and said some truly horrible things : []. This ended up being a significant historical moment, and it’s also a nice little illustration of why LGBT people, sex workers, and people of colour hang together. I sometimes see straight cis people go, "Oh, why is it LGB and T ? Isn’t T a different thing ?" And eh, sometimes it is, but the officer who shoves you against a wall and calls you a [] doesn’t particularly care about the nuances. Incidentally, the Canadian media supported this. One columnist in the Toronto Star described gay men as "social terrorists intent on establishing to totalitarian rule in our country." Two things. Firstly, totalitarian gay rule has not been established in Canada since 1981 unless there’s been some big changes since I was last there. So firstly, this columnist was just straight up wrong. but secondly, the British journalist Helen Joyce described trans people as terrorists in May of this year and called for increased policing against us ! There’s nothing original being made these days : it’s all sequels and remakes ! But what’s interesting for our educational purposes is the police went beyond the letter of the law and selectively applied it. The rules didn’t say that they had to use homophobic slurs and excessive violence, but they chose to do that. The rules also didn’t say they had to target gay bawdy houses more than straight ones, but they chose that too. Lest we think this sort of thing is confined to history, the policing of sex workers still operates in a similar fashion. The difference between wearing a sexy outfit on the street because it looks nice and wearing a sexy outfit because you are "manifesting a criminal intent to commit prostitution" often comes down to a police officer making a choice about where and whether they are going to apply the law. And the facts show that these rules are often applied disproportionately against trans women of color. The vagueness of law comes from the vagueness of language itself. And in fact, we can imagine the law as being a little bit like a language, the language of "Legalese," if you like. The law has content, but it also has grammar, which means you can construct new sentences in Legalese that haven’t been said before, but which still makes sense. For example, Operation Soap. The police chose to apply the law in a new way, which went beyond the letter but kept the spirit, and because they were empowered to do so their choice became the law. [Voice of Kris Tyson] The raids were not just about crimes, since bawdyhouse provisions have been enforced sporadically, if at all, they were about regulation. The men in blue were there to intimidate, humiliate, and control gay male space and sexuality. They were there to enforce a particular order, one that is intrinsically heterosexual, one in which proper men are ultra-masculine, punch holes in walls, smash glass, and pick on little kids. Conclusion : Law unto ourselves Vague Laws [Fire blazing, thoughtful drone music like hmmm yes but how do I feel about all this information? If only someone was here to tell me how to interpret this emotionally] What is the law ? It seems that isn’t an answer because the law is indeterminate. Not completely, but moreso than we might have thought. Sometimes in philosophy we discover the question is unanswerable, which leaves us only with the bigger question. How do we feel about that ? On the one hand, it’s rather frightening. As we saw from Operation Soap, judges and cops are empowered to make choices that acquire the force of law, choices which are supposed to be based on rules and evidence which anyone can examine, but which as we’ve seen, might not be ! Not only is that a little frightening it also rather undermines the point of law, which is to authoritatively settle disputes. There’s a reason that judges use the language of deducing rulings rather than choosing them. The law is supposed to be fixed and clear and impartial. As soon as we start talking about choices, well, then we might start questioning those choices ! On the other hand, the indeterminacy of law might be useful. The philosopher Timothy Endicott says a vague rule can empower people far more than a precise one ever could. Here’s a real world example : in the United Kingdom, the law prohibits discrimination against lesbians, but it does not explicitly define what lesbianism is. And according to the Oxford English dictionary, lesbianism is - "a great use of a Saturday night." There is a tiny group of people who want the government to set a precise legal definition, and in particular to exclude trans women from it. The term 'lesbianism' is vague, legally speaking, and I, for one, think that’s a good thing because it allows people to choose whether or not it applies to them. It maximises the freedom and self-determination of the population relative to the primary and secondary rules of the law. What is lesbianism ? I know it when I see it ! As a demon, of course, I have no feelings whatsoever. I can only tell you what the books say ; you have to apply the forbidden knowledge for yourself. But shouldst thou seek to delve deeper Doctor Faustus, my pet lawyer, Devin, has prepared an entire course about how to sue someone and how lawsuits actually work ! You can see that course now on Nebula, a streaming service where your favourite creators are imprisoned for eternity ! Without ads ! Or censorship. Every episode of Philosophy Tube is available early on Nebula, along with the LegalEagle, Wendover, Lindsay Ellis and all the princes of hell ! That’s right, I said, Lindsay Ellis ! You thought she’d retired from YouTube, but no, she is making new content exclusively in the digital afterlife ! Or if you prefer a little entertainment on the other side, you can also watch an award-winning play that I wrote. It’s called "The Prince". It was recorded live on stage in London. It has Shakespeare, sword fighting, vaguely defined lesbianism, all the delights of Elysium. To see all this and more, bury yourself with coins on your eyes so the boatman can ferry you across ! Or click the link in the description, go.nebula.tv/philosophytube and get a 40% discount on annual plans, which works out at $2.50 a month. For real, you would really be helping out me and the entire crew. [sirens wailing, sick-ass music] [REALLY pleased with how this one came together! There'll be lots to talk about on the post-mortem livestream too] [I actually did way more research than I ended up needing: the original concept was too bloated and I really slimmed it down to the core, the idea that law is indeterminate] [My original plan was to go into the Hart/Dworkin debate but there just wasn't time: it was too inside baseball. Maybe in future] [And what a voice cast! So glad Kris could join in, she's soo lovely] [And Morgana! Haha, any of you fans of Helluva Boss? I thought you'd appreciate the little nod to that - seemed like it fit perfectly with Trixie's demon vibe] [I was hanging out with Morgana in LA and she introduced me to it - she's the voice of Sallie May in that show! She actually signed that picture herself lmao] [I've been travelling a bit, working hard. I did a movie in the US called 'Again Again,' and I also got cast in a big TV show that I can't talk about yet. It's all very exciting!] [Don't worry though, Philosophy Tube will return!] [I'm sorry about having to censor the YouTube version of the video by the way; I erred on the side of caution. I tried to add something as well as take things away, y'know with the sound design? I hope it worked okay for you] [Just yeah, there are certain things you can't say on YouTube. The uncensored cut is on Nebula] [Interesting time for Nebula actually, what with the strikes and all. The old model of streaming television is starting to collapse so there might be an opportunity there for them to really grow. Guess we'll see.] [Hoo boy, I am knackered! Two movies AND a TV show AND moving house AND an episode of Philosophy Tube, all within 2 months! I've been doing stunt training for this TV show so I'm really sore today too lol] [Oh, there was a whole copyright snafu with the credits song on this one too. You're supposed to be listening to 'Illegal' by The Cucumbers right now, but at time of writing the copyright issue hasn't been resolved so I may have to switch it out for something else at the last minute!] [Go and listen to 'Illegal' by the Cucumbers if you don't know it and aren't hearing it now, it's amazing lol] go.nebula.tv/philoshophychube. [perfect Sean Connery voice] Slash Philoshophy Chube? I'm back again! We're back! I've been possessed by the ghost of Sean Connery once more. Well, let's try it again. F***in' Hell it's Nebula! I was captain of the Red October, you know? Let's try it again! [Abigail clearing throat]