The Identification Principle

In his article “Laws that are Made to be Broken,” Edwards defends the stance that it is unjustified to impose laws that are made to be broken on people due to the constraints of the identification principle. Edwards’ argument stands or falls with his definition and application of the identification principle.

Edwards defines the identification principle when he says: “According to the identification principle, state officials and institutions may decide that p is someone on whom d should be imposed only if the officials or institutions empowered to impose d on p have determined that the applicable triggering conditions are satisfied in p’s case” (Edwards, 594).

From this definition, Edwards turns his attention to the various institutions of criminal justice and the triggering conditions that each one must satisfy. He considers law enforcement, jurors, magistrates, and legislatures.

If at any point the justification for one of these institutions imposing d on a person draws from the conditions of one of the other institutions, the imposition was invalid. For example, a police officer that arrests someone on the reasonable grounds that someone has committed a string of robberies but then proceeds to search for evidence that the person committed assault is acting outside the bounds of the identification principle. This police officer only has reasonable grounds to search for evidence of robberies, not assaults. Similarly, a mayor cannot have reasonable suspicion that someone committed assault and send the police to search for evidence of that assault. This is wrong, because “p is pre-identified as soon as the mayor decides p ought to be arrested” (Edwards, 595).

One objection to Edwards’ application of the identification principle is that it will slow down the process of justice such that many criminals will slip through the cracks. Perhaps we have reasonable suspicion that a person is involved in trafficking illegal substances. Knowing that it is easier to find evidence of assault than trafficking and that drug dealers often engage in violence, the police search for evidence of assault without proper grounds. The police arrest the man on the charges of assault, not trafficking. Had the police searched for evidence of drug trafficking, this criminal would still be on the streets.

However, one could respond to this objection (as Edwards seems to suggest at times) by claiming that arriving at justice by unjust means is self-defeating at best and morally reprehensible at worst. If the identification principle holds, then the above scenario would make use of unjust means in its pursuit of justice.

Works Cited:

Edwards, James. “Laws that are Made to be Broken.” 2017.