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Comment by codeflo | Hacker News Reader

The perspective that there are “thousands of things that are illegal” but not prosecuted always fascinates me, that’s not at all a common perception e.g. here in Germany. Is that a difference between common law and civil law systems? Maybe in places where code law is mostly binding, there’s a lot more pressure on the legislature to keep the law books up to date with the current norms of society.

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Personally I see a big difference in the philosophy of lawmaking in the US vs Germany. Take driving, for instance. In the US, almost anyone who can physically climb behind the driver's seat of a car can get a drivers' license, and indeed having a drivers' license in the US is almost a fundamental right. Speed limits are then set, to first order, to accommodate the fact that you have marginal drivers behind the wheel. In addition, the police can - and do - selectively enforce driving laws. Ideally that power would be used to keep truly bad drivers off the roads, although the current civil unrest in America shows that that selective enforcement is, to put it mildly, abused.

In Germany, the barrier to getting a drivers' license is much higher. More training, more stringent tests. But the effect of that is that drivers are (mostly) assumed to be able to adapt their driving to road conditions; as a consequence, you get unlimited legal driving speeds on part of the German road system. In good weather, traffic permitting.

Of course, there are confounding facts: in my experience the average physical state of a car is much better in Germany than the US, and highways are better maintained. But still, the contrast is interesting. In the US, lifting speed limits on even straight roads through the desert would have poor outcomes.

I can only speak from my layman's understanding of US law. In the US, there's a doctrine prosecutorial discretion. Basically the police and prosecutors can choose whether to arrest and charge someone for a crime.

> "Maybe in places where code law is mostly binding, there’s a lot more pressure on the legislature to keep the law books up to date with the current norms of society."

In the US, where everything is so entwined with politics, there's a lot unenforceable laws still on the books.

For example, the US Supreme Court struck down sodomy laws in 2003. Last I checked, Texas still has a law on the books criminalizing sodomy. Sure Texas can't enforce it, but the conservative majority in the legislature won't actually repeal the law because politics. Similarly, when the US Supreme Court ruled that banning same-sex marriage was unconstitutional, Texas had to recognize same-sex marriage. But there was no law allowing same-sex couples to divorce. So there was this weird limbo wherein you couldn't get divorced if you were in a same-sex marriage.

America is weird.

There's a difference between laws that exist but are rendered moot by a court ruling it unconstitutional, and laws that exist and are constitutional but are just never used, and laws that exist, and are probably not constitutional, but aren't used, so have never been challenged.

For all intents and purposes sodomy was made legal by the 2003 precedent; that those laws are still technically in black-and-white doesn't mean they're in force.

But there are lots of laws that are still in force but aren't actually picked up and used much. They're still there, though. For instance, hardly anyone was prosecuted for Espionage Act violations for decades, but nobody disputes that the DoJ can dust that law off and start using it again, subject to the current jurisprudence on free speech etc.

In Germany it's currently illegal for someone to leave an escooter outside of a designated parking space. How many of them have you seen just laying around? I know in Mainz I've seen dozens.

Just saying, there's plenty of laws here that aren't prosecuted either.

It partly can be explained through white privilege, as the law enforcement and judicial systems are designed systemically to screw over minorities. Racial profiling is a thing, and if you're black, a police officer can use whatever excuse they want to pull you over while driving, and if they can't find anything, they'll invent something (for example: planting drugs on you). When that happens, you're life is literally in danger. Many examples of this can be found - one just has to look at the racial makeup of the US prison system (systemic slavery). It goes really deep. The US is kind of in a state of being acknowledging this in a fundamental way, with the movement to defund the police.

Basically, many laws overlap and it isn't always clear what applies. A new law may pass but they don't go strike through all the old laws that no longer apply.

Also there are laws that reference other country's laws. An example is that is (or was) illegal to buy/posses a type of meat in the US that is illegal in other jurisdictions. This was made to protect endangered animals but can easily apply to everything as there are lot of jurisdictions and who really knows if any one of them currently doesn't allow pork or beef for whatever reason.

More details here a few minutes in: https://www.youtube.com/watch?v=d-7o9xYp7eE

In Germany it seems as if something is outlawed then it is believed that thing physically can’t be done. In the United States, we take it as a challenge!

Yes, laws are selectively enforced in many jurisdiction. For instance a local sheriff might choose to not enforce state or federal law when he sees it being broken. A local prosector can also choose to just not prosecute cases of a certain type as well. This is one reason why Americans are currently protesting our law enforcement, selective enforcement can make life difficult.

The perspective that there are “thousands of things that are illegal” but not prosecuted always fascinates me, that’s not at all a common perception e.g. here in Germany

It's definitely my perception in Berlin. There is almost no police, prosecutors and courts are completely understaffed.

I can think of an example in New Zealand where an old law (Sedition) was essentially ignored for several decades. A couple years after its first use in a modern setting (early 00's) it was repealed.

Yeah, in the US, there are vague laws that are on the books but will get jury nullified in the real world.

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