There's a reason we call them judges. Selective enforcement is there for a reason. Lawmakers can't anticipated everything. Just look at how bad of an idea zero tolerance policies in schools have been with thinks like getting expelled for biting a sandwich into the shape of a gun.
The world isn't black and white. Flexibility, including selective enforcement, is necessary in a just system.
The reason that selective enforcement exists is that it is very hard to avoid having rules selectively enforced.
But the history of selective enforcement strongly suggests that it does not usually lead to just results. It is often instead something that unaccountable officials find themselves easily able to exploit for questionable purposes.
For a notable example, witness how selective enforcement during the War on Drugs was used to justify mass incarceration of blacks, even though actual rates of drug usage were similar in black and white communities.
Yes, I would argue that it would be better for more to have been incarcerated, for that would bring greater focus to injustice and the law would be changed. Selective enforcement interferes with the feedback mechanism that would otherwise make the law work better.
Any instance of selective enforcement being necessary is ipso facto evidence of a bad law. This is completely orthogonal to the matter of the world not being black and white - you're right, it's not, but a good law recognizes that fact, and laws can also be amended as needed.
> Any instance of selective enforcement being necessary is ipso facto evidence of a bad law.
All laws are in some degree bad; perfect laws do not exist.
Some laws are useful and produce more good than harm in the concrete situation in which they exist.
Should laws be improved where possible? Yes. Does the need for selective enforcement indicate a problem? Yes. Does it provide sufficient information to determine the precise form of a better law to replace the one it shows a problem with? Very rarely.
Legislation is much worse than organically derived common law, for the common law comprises decisions that apply to particular conditions with all their details while the former are mere idealizations.
> Any instance of selective enforcement being necessary is ipso facto evidence of a bad law.
Yep, and while we fix that bad law we need judges to be able to say "I won't apply that" or "I won't sentence you to jail for this". That's kinda the point.
That's what jury nullification is for, in principle.
Allowing judges to not enforce bad laws turns them into unelected legislators. It's also worse from a corruption perspective because a single bought judge in the right place is much more cost effective than having to buy a new randomly selected jury at every trial.
