Suppose counterfeiting carried a mandatory life sentence. In the face of such a severe penalty, no one counterfeits, and thus the penalty is never imposed. This is a desirable outcome, and yet most of us would not wish to live in such a society. Why?

“A law can be unjust even if it is never applied,” writes Saul Smilansky. “But someone can hardly be a victim of unjust punishment when no punishment occurs!”