Wednesday, 12 November 2014

Why Today's Laws are Not Law

(From the archives: August 4th, 2003)

Back in the 1920s, an eminent judge was heard to remark: “Three-fourths of legislation is unnecessary. And the other fourth is mischievous”. Do you wonder, if he was miraculously brought back to life today, what he might think?

Politicians around the world are bombarding us with barrages of crazier and crazier "laws." And they are doing it faster, and faster. Hardly a week passes without some politician trumpeting plans for yet more tough new laws, and harsh penalties against those who break them. Almost everyone senses that something has gone badly wrong with the law.

For example, I know a director of a tour operating company in England. The British government has made a law requiring his company, whenever they sell travel arrangements to anyone, to offer also travel insurance. If one of the staff fails to do this, the directors of the company can be charged with a criminal offence!

Another friend is a wine merchant in Connecticut, USA. He reports that, inside the last three years, several US state governments have declared shipping wine across state lines to be criminal. And shipping wine to some states - for example Florida - is classified as a felony, in other words, a grave offence meriting harsh punishment.

A local taxi driver told me that his wife is no longer allowed to drive his car when they go away together. This is because the local authority has decreed that only licensed taxi drivers may drive cars registered as taxis, even on private journeys.

Officials confiscate nail-scissors out of people’s hand baggage at airports, because they just might attack someone with them. There is a proposal to ban the old Scottish recipe, haggis. Both Greek and Thai politicians want to stop people playing computer games. Oregon firefighters were forbidden to tackle a large forest fire in what environmentalists had designated a wilderness area, so endangering the homes of 17,000 people.

And politicians are always finding new rationalizations for their favourite pastime, taking away our earned wealth. For example, taxes to "combat" (non-existent) human-caused global warming. In Britain, a law called IR35 - of which I myself am a victim - designed to suppress one-man software consultancies. And proposals to increase, yet again, fines for motoring offences, supposedly to build up a fund to compensate the victims of crime!

Is this all a big joke? I think not. For, while piling on more and more laws and regulations that are mad, or bad, or both, the politicians are also perverting time-honoured procedures of law. In Britain, for example, they are chipping away at the right to trial by jury. And they are trying hard to overturn the most important principle in criminal law, the presumption of innocence until proven guilty.

Meanwhile, police seize people's computers on suspicion of holding porn. They can take DNA samples and fingerprints from anyone they arrest, even if not accused of any crime. Their, and their masters', favourite words are crackdown and clampdown. They carry out dawn raids against those accused of "hate crimes" - laws which can turn, for example, a careless comment or facial gesture into a "crime." There are spy cameras all over the place, waiting to catch us out. And bureaucrats are being encouraged to confiscate large sums from "criminals." They are even being set targets for how much they must confiscate.

How can we understand what has gone wrong with law? We must go back to basics, and ask, what is law for? And what is the relationship between law and laws?

I do not have space here to review the history of law. Nor to discuss the differences between common law systems, as in England and the USA, and civil law systems as in continental Europe. I will simply take a common-sense view of law, one with which most people would have broadly agreed in, say, the last quarter of the 19th century.

There are three main divisions of law. Historically first is personal law, which regulates things like marriages, divorces and wills. Second is the civil law. This provides for resolution of disputes, and for compensation of harms done to others through negligence or irresponsibility. And the third division, criminal law, is concerned with acts outside the bounds of society, acts that are - in essence - not becoming of a human being, and therefore deserving of punishment over and above mere compensation of victims.

I will not comment further on personal law; it is not the main problem area today. As to civil law, the basics are still working, up to a point. Although the doctrine known as strict liability, or liability without fault, means that no-one is safe from legal assault, however responsibly and carefully they behave.

In the common-sense view, and historically, there is a sharp distinction between civil wrongs and criminal offences. For a crime requires, not only an act, but also a state of mind - so-called mens rea. For an act to be criminal, the perpetrator must also intend to commit a crime. For example, to kill someone, or to steal or damage someone's property. But today, this distinction has disappeared. Politicians rush to apply penalties to acts or omissions, which no-one using common sense would think of as criminal. No-one today is safe from being punished for "crimes," however innocent they are of any real wrong-doing.

It is time to review fundamentals. I ask first, for whose benefit does law exist? Almost everyone would agree that law exists for the benefit of the people it serves - for the public good. I think of John Locke's definition of the public good under law: "the good of every particular member of that society, as far as by common rules it can be provided for."

I must catch myself here. There is one group, whose interests are clearly not served by law - the criminals. But this does not contradict Locke's view. For he said also that a criminal "becomes degenerate, and declares himself to quit the principles of human nature, and to be a noxious creature." In the common-sense view, crimes - real crimes, violations of the law - are sub-human acts, behaviour not befitting members of society.

The law, then, taken as a whole, should serve the interests of all good people. But what of laws; where do they fit? Laws are - or should be - the guidelines, which implement the law. Law provides the framework, and laws provide - should provide - the practical application.

The law has an important feature. It is dynamic, not static. Like a living thing, it can adapt to changing conditions. There are two mechanisms for this. First, when new situations arise in cases at law, judges make decisions based on precedent and interpretation. And these decisions become guidelines for future cases, and so, in essence, become laws. Second, when new knowledge becomes available on how people should behave to make life better for everyone, lawmakers can lay down new guidelines to match. These two mechanisms have familiar names: case-law and statute.

From this common-sense view of law as serving the interests of all good people, and laws as its practical guidelines, flow several consequences. First, every law must be made for a clearly stated reason. Everyone must be able to understand this reason, and - even if they dislike that law personally - can approve of it as of benefit to good people in general. Laws should never be based on whims, lies or rationalizations.

Second, lawmakers must recognize that obeying laws has costs, and not just financial ones. Costs in time, costs in freedom, costs in pleasure, costs in convenience or independence. Laws should never impose greater costs on people than the benefit they are supposed to provide. In particular, no law should be made whose purpose is to impose costs on people. And no law to pre-empt a problem can be valid, unless the cost if that problem happens, multiplied by the chance of it happening, is greater than the costs of obeying that law.

Third, laws must not demean people. They must not constrain people so tightly that they lose the right to use their own common sense and judgement. Fourth, laws must not intentionally favour some individuals or groups against others. Laws must not be made for personal gain, to benefit particular lobbies, to build bureaucratic empires, to harm particular groups of people, or to buy popularity with some at the expense of others.

Fifth, laws must not be made in the heat of the moment, for example in swift reaction to a particularly heinous act or to a media-induced moral panic. Every law must be slowly, carefully, painstakingly considered, including its costs and down-sides. Sixth, laws must be as few as possible, as simple as possible and as clear as possible. Only then can individuals satisfy themselves, easily and at any time, that what they are doing is within the law.

Valid laws - laws consistent with common-sense law, laws made for the benefit of all good people - should satisfy all six of these rules. But today's laws fail on several of the counts. If you doubt this, look at the examples above, and think what may have been the motives of those that lobbied for, and those that made, those laws. Our friend from the 1920s, if he were brought back to life today, would probably throw up his hands in horror, and declare that all laws being made now are mischievous.

It is obvious, after a little consideration, that a lot of today's laws are simply not right. For the philosophical basis of laws made today is quite opposite to that of common-sense law. John Locke's remarks show that, as he understood it, human beings are naturally good, and criminality is rare and an aberration. And common sense supports this view. On the other hand, today's laws seem to be made from the standpoint that we are all naturally bad, and need to be forcibly controlled. That every one of us would be committing real crimes if we thought we could get away with it.

Bad laws, said Edmund Burke in the 18th century, are the worst sort of tyranny. He was quite right. And that is exactly what we are suffering today. The law, the very institution which should defend good people from those that want to harm us, has been taken over by hi-jackers. These hi-jackers are making bad laws to damage, and to try to destroy, our liberties, our lifestyles, and our livelihoods. How long will it be before they start taking our lives too?

Judges (and on occasions, it must be said, juries) are not entirely innocent of the perversion of the law, which has taken place over the last century or so, and particularly over the last 50 years. But by far the greatest blame lies with the politicians, lobbyists and vested interests. With amazing foresight, Locke described exactly the situation we are in today. “Constant frequent meetings of the legislative, and long continuations of their assemblies, without necessary occasion, could not but be burdensome to the people, and must necessarily in time produce more dangerous inconveniences”.

So, what can we lovers of freedom do? First, we need to understand the nature of our task. Resisting individual bad laws is not enough. Trying to solve the problem bad law by bad law is like fighting a hydra. For every bad law we knock down, lovers of tyranny, with a few pen-strokes, can raise ten new bad laws in its place.

What we must do is wider than just resisting bad laws. We must change people's perceptions. We must re-claim the law. We need to make it possible for the law to work as it should. We need to make it work for the benefit of us good, peaceful, honest people who respect others' rights, rather than against us.

Second, we need to make plain by our words and actions, that bad laws have no moral force. We should not criticize the victims of bad laws if they evade them, break them, or even flout them. Although, on the other hand, we should strongly censure those that break the law - for example, the violently aggressive, thieves and the fraudulent.

Third, we need to reflect on the nature of those that are doing these things to us. There is no worse crime than hi-jacking the law. Those that lobby for bad laws, those that make bad laws, and those that call for strict enforcement of bad laws, are degenerates and noxious creatures. Many people are coming to understand this. There is already a powerful undercurrent of hatred and contempt for politicians and lobbyists. We need to help this process along. And how do we do that? Simply by telling the truth.

Fourth, those of us who have contact with policemen and policewomen need to work on them. Most individual police are not, in the round, bad people. But they have been hoodwinked into giving their support to a legal system that has become perverted. They must learn to distinguish real crimes, violations of the law, from trumped-up ones. And they must concentrate on their job - dissuading and catching the small minority of real criminals.

I will end with more words of John Locke. Written more than 300 years ago, they are as relevant to us today as they were in Locke's time.

“But if a long train of abuses, prevarications and artifices, all tending the same way, make the design visible to the people, and they cannot but feel, what they lie under, and whither they are going, ‘tis not to be wondered, that they should then rouse themselves, and endeavour to put the rule into such hands, which may secure to them the ends for which government was at first enacted”.

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