Here is to Relativism in the Law

As a newly elected Maryland General Assembly prepares to open its next session, its potential work product in 2007 becomes a topic of discussion amidst almost any gathering of judges, lawyers, and business people whether that be over coffee in their respective workplaces, post holiday brunches, or even after work over a beer. The topics range from criminal justice to land use.

Last year’s session of The General Assembly which took place before the 2006 election in which all members of The General Assembly faced the voters began by focusing on anti-sex offender legislation (28 bills) and bills to restrict the power of eminent domain (12) after the Supreme Court issued an unpopular decision which held that the power was broader than the legislators perceived most voters wanted it to be. Late in the session The General Assembly’s attention was diverted by the media to “Gay Marriage” which mercifully a few weeks later was supplanted by energy regulation. As I noted, then, 2006 being an election year, was not a good year to be “a gay sex offender or developer on the Public Service Commission.”

This year as a participant in perhaps more than my fair share of these pre- session, bull sessions, which are fun discussions, I have noted several sentiments which seem to pervade them. One is to bemoan the presence of “relativism in the law”.

One lawyer colleague noted with understandable amusement evidence of this trend by pointing to some examples of crimes prohibited in Maryland including selling clove cigarettes and the sale of non-latex condoms by vending machines or other automatic devices. This same lawyer pointed out then the penalty ($50 – $300 fine) under Maryland law for maintaining or operating a “disorderly house” is lower than the penalty for operating a “whorehouse” ($500 fine). He then theorized as to why the General Assembly of Maryland has seen fit to place these laws on the books by attributing their presence to the periodic disregard by legislators of the overall collective needs and common sense judgment of the public in order to focus on the desires and emotions of certain special interests, more narrow constituencies or even a single constituent of a legislator who wants attention or relief from the State. There can’t be a whole lot of doubt that these silly laws result from this type of misplaced legislative priorities and attention.

It has been said that “democracy is not always a pretty sight”, that it is even “messy”. Indeed sometimes the cost of having a truly representative democracy as we have in this state and nation is in fact reduced efficiency, i.e., what appears to be trivial or even silly laws on the books. I submit that, most of the time, it is a price worth paying particularly since our system of checks and balances effectively reduces the danger which the strict enforcement of these laws might otherwise portend for those, for example, who would dare to sell non-latex condoms from a vending machine or other automatic device or sell clove cigarettes (whether the clove cigarettes are smoked before or after using a non-latex condom).

The checks and balances that I am referring to are that under both our state and federal tripartite system of government, while the legislative branch of government may pass these arguably silly or trivial laws, it is the decision of the executive branch of government (the police and State’s Attorney’s Office) as to how vigorously and strictly these will be enforced and prosecuted, as well as what, if any, fiscal and human resources will be devoted to the enforcement of these laws. In addition, thereafter and ultimately it is the decision of the judicial branch of government as to whether a citizen will be found to have committed any crime and if so whether their punishment shall be the maximum prescribed by law or a lesser sentence. Speaking as a member of the judiciary, I don’t think the liberty of the citizens of our republic is at risk as a result of these laws being on the books.

This contrasts however with the ways laws are made, enforced, and adjudicated in a system where government is not limited and where there are no checks and balances, i.e., a totalitarian system of government, such as the one created when the Nazis took power and control of the German states in 1933.

Justice Robert H. Jackson in his closing argument to the Nuremberg War Crimes Tribunal described that process as follows:

“In 1933, Goring forecast the whole program of purposeful cruelty and oppression when he publicly announced: “Whoever in the future raises a hand against a representative of the National Socialist movement or of the state, must know that he will lose his life in a very short while”.

New political crimes were created to this end. It was made treason, punishable by death, to organize or support a political party other than the Nazi party. Circulating a false or exaggerated statement, or one which would harm the state or even the party, was made a crime. Laws were enacted of such ambiguity that they could be used to punish almost any innocent act. It was, for example, made a crime to provoke “any act contrary to the public welfare”.

The doctrine of “punishment by analogy” was introduced to enable conviction for acts which no statute forbade. Minister of Justice Gurtner explained that National Socialism considered every violation of the goals of life which the community set up for itself to be a wrong per se, and that the act could be punished even though it was not contrary to existing “formal” laws.

The Gestapo and the SD were instrumentalities of an espionage system which penetrated public and private life…

With all administrative offices in Nazi control and with the Reichstag reduced to impotence, the judiciary remained the last obstacle to this reign of terror, but its independence was soon overcome and it was reorganized to dispense a venal justice. Judges were ousted for political or racial reasons and were spied upon and put under pressure to join the Nazi party.

The result was the removal of all peaceable means either to resist or to change the government. Having sneaked through the portals of power, the Nazis slammed the gate in the face of all others who might also aspire to enter. Since the law was what the Nazis said it was, every form of opposition was rooted out, and every dissenting voice throttled. Germany was in the clutch of a police state, which used the fear of concentration camps as a means to enforce nonresistance. The party was the state, the state was the party, and terror by day and death by night were the policy of both.

So let’s hear it for relativism in the law. It’s not bad particularly when it is considered and compared with its polar opposite – totalitarianism. In fact I commend it to you.

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