The Illusion of Legality

On the face of it, a thing is legal or illegal. Yet Scott Albrecht, a DEA agent, speaks of the "illusory legality" of designer drugs, as if a thing or act can in some sense be illegal even though there is no law against it. It is not clear what sense can be given to the notion of a kind of illegality that coincides with illusory legality.

Is the conventional wisdom in America that the manager of a business should maximize profit while obeying the law? If so, why should there be any hesitation to sell a drug that has not yet been made illegal? On the other hand, if there is a problem with doing things that are not illegal according to the letter of the law, yet have only illusory legality, how are we to determine which acts or substances are forbidden? Is a person exploiting a tax loophole taking advantage of illusory legality?

Law enforcement officials hope that information gathered from Mr. Tian will provide a window into the drug’s hazy international underworld, where manufacturers readily tweak chemicals used to make spice and other so-called designer drugs, staying one step ahead of federal regulators scrambling to identify and outlaw them.

“There’s an illusion of legality,” said Scott Albrecht, a special agent in the D.E.A.’s Milwaukee district office, who supervised the investigation of Mr. Tian after the agents linked him to packages shipped to an address here. “We make one thing illegal, and they just move on to the next one.”
- Arrest Underscores China’s Role in the Making and Spread of a Lethal Drug, by ALAN SCHWARZ, MAY 28, 2015, http://www.nytimes.com/2015/05/29/us/arrest-opens-window-on-chinas-role-in-designer-drug-market.html

Similarly, gun manufacturers evade legal restrictions on sale of assault rifles:

There was a significant market for assault-style rifles before Congress passed legislation in 1994 that sought to ban their sales, said David Kopel, the research director of the Independence Institute, a group in Denver that supports gun owners’ rights. But because the law tried to ban guns based on certain characteristics, firearms makers simply reconfigured their weapons so that they did not run afoul of the law.
- Barry Meier and Michael J. de la Merced, Assault Rifles and Concealed Handguns at Center of a Changing Industry, NYT, June 21, 2016

Almost as soon as the law was passed, the gun industry made modifications — essentially inventing new kinds of weapons or introducing innovations to conform to the law — that did not alter their power in any significant fashion, law enforcement officials said.
- MARC SANTORA and AL BAKER, Despite Strict Gun Law, Troubled Doctor Was Able to Buy Assault Rifle, NYT, JULY 3, 2017

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