On Loopholes and Laws

Laws, by their very nature, have to deal with a huge number of scenarios in a changing world, and as a result often fall short of the mark when it comes to regulating society.  That is to say, they tend to use wording that is either too specific or too broad, with the result that a loophole in the law is born.  These loopholes are not always obvious and are hardly permanent, but where one exists, it can have a huge impact on the people governed by the law and on the future of the law itself.  To understand this impact, there are three topics that should be considered: the method of western-style law, the modern examples of loopholes and the ethical question surrounding their existence.

1)        The Method of Law

Western-style law – including Utah law – follows a relatively predictable pattern.  In general, it defines an illegal action and then defines the range of punishment for anyone who commits that action.  While the punishment aspect of a law is usually straightforward – and in most cases, extraordinarily broad – the key to successfully understanding this system of law is the understanding the definition itself.  After all, if you are ever accused of breaking the law, it’s important to know whether or not you are actually guilty of a violation as defined by that law.

The great pains the Utah State Legislature takes in the definitions it writes into law reinforces this fact: typically, the legislature does not stop at just describing the illegal action, but they go on to define specific words within that description.  Entire subsections are usually listed to define the parties mentioned, obscure criteria, references to other laws and more.

Despite the effort the legislature puts into defining the laws it creates, it still isn’t always enough, and so it’s left to the courts to interpret the definition of the law as they see fit.  Thousands of court cases dealing with individual and often unique situations build on each other until, ideally, the courts have addressed every possible scenario and the laws have become utterly comprehensive, expanding a few paragraphs of legislated law into a mountain of case law.  Of course, due to the limited resources of the courts, it usually takes them time to catch up with a rapidly changing society, and that, it can be safely assumed, is the likely reason for the existence of most loopholes.

2)       Modern Examples

A recent example of a loophole in the law was addressed just this year in Utah: up until May 13th, 2014, drivers in Utah were allowed to use their phones while driving for pretty much everything, with the exception of sending texts.  This meant that, although texting was illegal, an individual pulled over for texting while driving could claim to have been dialing a phone number, searching the web, or even writing an email, thus exploiting a loophole in the law.  The law has now caught up with the times and declared that just about any handheld use of a cell phone while driving is illegal, but considering how long cell phones have been around – and texting in particular – this loophole has probably saved a lot of drivers from a citation for texting while driving.

        Of course, while it might’ve gotten texting drivers out of a citation, this loophole was probably not the sort that would’ve prevented someone from getting a more serious charge, such as a DUI.  Officers in Utah require only “reasonable suspicion,” to conduct an “investigative detention,” which means that even before the new law, if an officer saw you manipulating your phone, they could stop you simply because they suspected you were texting, even if you weren’t.  From that point, if they saw the usual indicators of a DUI (smelled alcohol, slurred speech, etc.), you’d probably end up with a DUI.

3)       Ethical Questions

At this point, you’re probably thinking to yourself “ok, so loopholes exist in the law, but is it right to use them to get out of trouble?” Rather than answering that question for you, consider the pros and the cons of the existence and exploitation of loopholes and decide for yourself.

The Cons: Loopholes can be used to let criminals walk – there’s really no way to get around that fact, and most people have seen some Hollywood dramatization of a criminal who escapes punishment on a technicality in the law.  But when someone breaks the law, most people would also say the offender should suffer the consequences for it, especially when they commit a serious offence.  When a loophole in the law is exploited to let a dangerous person or dangerous behavior continue at large, it becomes a matter of serious concern.

The Pros: The exploitation of loopholes inevitably draws attention to them, and it usually results in a development of the law in order to eliminate the loophole.  In short, exploitation of a loophole ultimately makes the law more effective.

Consider the example of the driving and texting in Utah.  Before the new law came into being, texting was illegal on your cell phone, but not much else.  The purpose behind the restriction on texting while driving, of course, was to prevent people from being distracted and keep their attention on the road.  Despite this, people were still allowed to make use of their phones in a number of ways that could easily be called distracting.  Now, thanks to the people who drew attention to and exploited the loophole in the previous law, people can no longer be distracted by manipulating their phones while driving, and Utah roads are safer than they were before.

So there you have it: loopholes in the law exist, and whether or not you believe they are an appropriate means to defend yourself from criminal charges, they are an important part of the developmental process of Utah law.  With times changing more and more quickly these days, lawmakers are going to have to work hard to keep up, and you can bet there will be a whole lot of new loopholes found and used in the foreseeable future.

Photo Courtesy of: Stuart Miles@freedigitalphotos.net

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