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

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.


  1. Jheral

    I suppose the problem with marriage is that it’s associated with the church, which is a private organization (and hence make their own rules – and should have the right to do so as long as they don’t conflict with the law), but take the church out of the picture and it should definately be as you describe.

    Legally, there should be no bias, so homosexual marriage should pretty much be as much a fundamental right as heterosexual ones (however much that ends up being can, of course, be debated, but the point still stands; there should be no bias one way or another).

  2. anonymous

    That sounds a lot like maths, having to prove everything, which is a good thing. Maths is awesome and should be applied everywhere, especially its proving techniques. Unfortunately everyone is afraid of it. Especially policy makers. They think proofs are too complicated, so these should be avoided at all costs. Not only policymakers, all people should be thought to understand and appreciate the value of a good proof. Everyone would surely benefit from that.

    1. Prof

      Maths is just a special case of physics.

  3. Colin

    But requiring objective proof that a law is required in the first place and then that it is proportionate to the problem it is supposed to resolve, would instantly get rid of all those badly thought out and even downright dishonest laws. This would be especially true in the area of ‘intellectual property’.

  4. AeliusBlythe

    Crap. Got disconnected while trying to comment & hoping this isn’t a duplicate. Trying again…

    This reminds me of what we were always taught in government classes at school – a law is not unconstitutional until it is tested in court and found to be unconstitutional. (You could substitute unnecessary, oppressive, or just… wrong for “unconstitutional.”) That always seemed horribly backwards to me. (And that this was emphasized in public schools is somewhat suspicious … but that’s another topic.)

    It is dangerous to assume that every unconstitutional/unnecessary/…wrong law will be tested. In criminal trials people plead guilty to avoid harsh sentences or because they don’t have the money for a proper defense; in civil cases people settle for similar reasons; and outside of the courtroom–as in the situation with same-sex marriages–people do accept unfair limitations on their lives rather than challenge a law. It is very dangerous, I think, to assume that unjust policies will be challenged – that burden SHOULD be on the lawmakers.

    But it’s seems that this backwardsness is not just a simple oversight, but a time-honored process hard-wired into law-making. Make laws first, then test. Or decide first, prove later. Unfortunate.

  5. X

    So basically you seem to be arguing for some sort of mandatory cost-benefit analysis for every new law. Falkvinge has argued the same elsewhere.

    1. Scary Devil Monastery

      A cost-benefit analysis should certainly be among the minimal criteria for a law. The alternative is that you can, for instance, turn 20% of the online population into criminals overnight based on nothing more than bad guesswork and lobbying.

      As laws are not subjected to a very good form of cost-benefit analysis in any nation, every new law should be viewed critically to see whether it will or will not violate fundamental principles.

      In the US this analysis is performed after the fact. A law will be struck down only after it makes it into the supreme court.
      In Sweden we do in theory have a council of law scholars which compare proportionality and reasonability of any proposed law. As a general rule, however, their counsel is considered advisory and is unfortunately quite often overruled by the body politic, according to political dogma.

  6. LennStar

    The problem is, that courts actions are about what already happened. Laws are often about what will or could happen and should or not should be allowed.

    You don’t know what will happen if you do X. The best thing you have is an educated guess based on similar things.

    But take for example regenerative energies. 20 years ago nobody except the most “prophetic” people would have said that it can happen as it has.
    Or the global warming. There is no discussion that it is here, and the on amount of human influence the discussion is in the region of 90%-100%. But that does not mean that we know what will be the result on a regional or even local level. We just had some very cold days which seem to be based on *more* warm water in the gulf stream – but more to the north.

    In many cases you just cannot base a law on evidence.

    1. Prof

      Why would you need a law, not based on evidence?
      Bad guesses damage society severely.

      You pull up excellent examples, the regenerative energies you speak about are still a black hole for money and peoples’ precious time, since nobody seems to care how they violate fundamental thermodynamic principles on a macro scale.
      And global warming is likely, but still *unproven*, and due to that, many misguided laws are just making matters worse by harming the environment even more than just doing nothing.

      In most cases, inaction is the best action, especially when it comes to law making.

      1. Zacqary Adam Green

        Climate change is an interesting case, because it highlights all the nuances of evidence-gathering and how complex it can be. It’s true that it’s not proven, just like how gravity isn’t proven: it’s entirely possible that someday, new evidence will arise that stuff doesn’t actually fall when you drop it, and we’re all hallucinating it. That’s the wonderful thing about science, because it always acknowledges the possibility that it’s completely wrong.

        But hand-wringing about septillion-to-one chances is no way to live a life, let alone run a society. When I said that laws must be proven necessary without a shadow of a doubt, I was referring to reasonable doubt.

        Now, let’s say (for the sake of argument) that evidence shows a 95% chance that anthropogenic climate change is real. Evidence also shows that, if humans are causing climate change, then inaction is going to kill everybody on the planet. There is also a wealth of historical evidence that basing policy decisions (in general) on 5% chances has turned out to be disastrous.

        Suddenly, the doubt doesn’t seem all that reasonable anymore.

        But yes, you’re right. In most cases, inaction is the best action. Just not this one.

  7. roger

    I agree with this. It’s similar to something I’ve been thinking about, I call the “moral method”.
    Simply count the choices/freedoms this law will give you or take away.
    If it takes something away from someone, it’s clearly limiting liberty and should not be implemented unless there are scientific research backing the reason to have that law. A risk analysis you could say. And how much risk we accept is up to the people of a country, where should the line be drawn.
    But it must apply them equally. So one thing can’t be illegal while another one is legal if they have similar risk according to scientific research.
    This would remove all knee jerk, gut feeling, religious bias , special interest or just plain ignorant laws. This is the next step, after secularism, in the evolution of modern society where everybody are free regardless who or what they are.

    1. Scary Devil Monastery

      I’ve always been of the opinion that any law should be subjected to a risk/threat assessment before implementation.

      Since any law can and will be abused or interpreted in the worst possible way, occasionally with disastrous results for a great many people, great caution should be taken in such an assessment.

  8. kmens

    “Laws, like imprisonment, are a restriction on individual liberty”

    I cannot agree with this. This implies a worldview such as Rousseau: the wild free
    While in fact the wild man was most likely not so free due to natural restrictions, a closed society, his stronger neighbor,…

    You cannot say that the human rights are a restriction to our liberty
    You cannot say that obliged education restrains the freedom of people
    You cannot say that social security restrains the freedom of people

    I think you have laws that diminishes freedom, but other increase it. A definition of freedom as the allowed choices you can make at a given time is misleading.

    Because a restriction in choices at a given time x can increase the choices to be made at a later time by multiple. (eg obliged education)

    1. Zacqary Adam Green

      I never implied that human rights restrict our liberty. I implied that human rights restrict individual liberty of psychopaths, racists, and other horrible people to do horrible things (which should be done).

      By “individual liberty”, I am referring to “an individual’s ability to decide on a course of action, execute it, and not face adverse consequences for doing so.” For example, the individual liberty to decide to murder another human being, proceed to murder another human being, and then escape punishment for having murdered another human being (which is not a good thing) A law against murdering other human beings (correctly) restricts this liberty by preventing the ability to escape punishment for having murdered another human being.

      (By “prevent” I am referring to an ideal situation in which laws are properly and successfully enforced)

      Laws enforcing human rights, obliged education, and social security are necessary because they make the world a better place, and protect the majority of individuals’ liberties, as you said. They do this by (rightfully) restricting the liberty of bad people to disrespect human rights, refuse to educate their fellow human beings, and refuse to pitch into a social security system.

      This has nothing to do with Rousseau, and everything to do with the laws of physics.

      1. kmens

        Maybe it’s just a discussion of definitions, but i do think that you refer to liberty in an Utopian world. So let me be clear on my definitions.

        Liberty is the ability of a person to choose maximally.

        Some things that restrict liberty are then eg. 1) iron chains, because they disallow you to walk away. 2) incomplete information, because if you don’t know what can be choosen, you cannot choose it. 3) irrationality, because the human mind is susceptible to illusions, fallacies,… which deteriorates your ability
        of choosing.

        So what might happen if I tomorrow there is no law to prohibit murder. Some people might think of murdering someone today, so they have more liberty. Other people might be so afraid to get killed, that the choices of going to swim or to hockey that day are not really an option any more. Therefore you restrict their liberty.

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