Police discretion, law, and social norms

My girlfriend recently told me about an interesting difference between English and German. German has two words for ‘the same’ that differentiates between ‘the same category’ and ‘the same thing’. In English, the particular kind of ‘same’ being indicated can only be understood in context. For example, if I were to say ‘Doug and I own the same dog’ it is textually unclear whether we own the same type of dog, or whether we own a dog together. However, context will usually clarify the meaning. In the previous example, my relationship to Doug will usually indicate which is meant: if we are housemates or partners than I probably mean that we own a dog together, but if we’re just friends than I probably mean that we own the same type of dog. German speakers, interestingly, have essentially the opposite problem: the word is textually clear, but can be contextually confusing because people often use the wrong form. In other words, in English clarity depends on people’s ability to pick up on contextual clues, while in German clarity requires a mastery of the rules of the language.

I think that this provides an interesting anecdote to help explain another idea that I have been working on recently, namely, that making rules more specific often does not necessarily make them clearer. This is especially important at the convergence point between law, the police, and citizens. I want to propose roughly the following: first, societal practice is an interface of law and custom, and second, making laws more specific cannot overpower culture.

First point: societal practice is a synthesis of law and culture. Basically what I am proposing is that law cannot be so specific as to eliminate ambiguity. That is not to say that law is meaningless. Look again to the above example: in English ‘the same’ is ambiguous, but within very specific parameters. Laws outline the space to be interpreted. The remaining work to transition law to practice is achieved through contextual cultural understanding (e.g. if a law said ‘a couple must live in the same house to receive housing benefits’, context clarifies the ‘same’ that is being used).

There are other factors beyond the linguistic at play. For example, the police have limited resources, and they must make decisions as to how resources should be allocated. Theoretically resource allocation could be built into law, but in practice this would probably be unfeasible.

A final note on this point: society is comprised of many cultures (and even within a single ‘culture’ there can be significant disagreement over norms and meaning). The values and interpretations of the police are not universal. In the UK, most officers are white men, and this will inevitably have an impact on the way in which law is culturally interpreted. This has led some to argue for decreasing police discretion (e.g. police in the USA should be more heavily regulated in order to prevent them from disproportionately harming blacks and other minorities). This leads into my next point.

Second point: it is difficult for law to eliminate cultural features of police decision making. I could provide many reasons, but the one I want to focus on is the issue of complexity. As many philosophers have proven, precision does not necessarily improve comprehension. Indeed, the more precise language becomes, the more difficult it becomes to understand. That is not to say that we should not try to be precise. Whether in philosophy or nuclear physics, precision is often a very admirable. What I would say, though, is that precision is exclusionary: it requires study, training, and expertise. Furthermore, most of the activities I have listed are not time urgent. Police officers, however, are not law experts. They have a working knowledge of law, but they are not scholars or researchers. Furthermore, they must often make decisions quickly, and with increasingly low resources. Increasing the specificity of law is therefore very likely to increase both citizen and officer confusion as to what the law actually states. This can potentially have the paradoxical affect of increasing officer reliance on cultural norms, while decreasing agreement among officers on whether officers are acting appropriately (I speak very briefly here of ideas argued for by Pepinsky, read here).

As always, let me know what you think,


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