Rules that Bend without Breaking
| Abstract | In the State of Bernstein, operating a motor vehicle on a suspended license is a misdemeanor, punishable by permanent loss of one’s license. Officer Krupke arrests everyone who does this, as Tony has. But Tony says, “Gee, Officer Krupke, can’t you bend the rules? I went to your high school, you know.” Tony’s using a euphemism. He’s really asking Krupke to break the rules. Is there, however, a non-euphemistic way to bend a rule of law, without breaking it? More precisely, can we ever bend a rule while still applying it, in some sense, or is this just doubletalk? Consider the case of Maria, whose driver’s license has also been suspended. Maria lives with her mother in a remote area, twenty miles from the nearest doctor. Maria’s mother comes down with a fever of one hundred two. It’s not life-threatening, but Maria wants to spare her mother suffering and hasten recovery, so she drives to the hospital herself, rather than waiting for an ambulance to make the trip out and back. Unfortunately for Maria, the statute contains no applicable exception. I stipulate that this statute is not unjust or otherwise defective, as written. Suppose there are conclusive reasons for legislators not to complicate the statute with exceptions broad enough to cover cases such as Maria’s. Writing such exceptions would encourage sub-optimal misapplication of the exception by judges and sub-optimal misconduct by legal subjects who would anticipate (rightly or not) judicial misapplication of the statutory exception. Nevertheless, most will agree that Maria has strong reasons to act as she does. Rare is the writer who insists that rules of law trump all other reasons that bear on legal subjects. Some will insist that we give Maria’s mother a condition more life-threatening before they’ll assent. | |||||||||
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