The end of law, wrote John Locke, is not to abolish or restrain, but to preserve and enlarge freedom.
Bad laws, said Edmund Burke a century later, are the worst sort of tyranny.
The villains that masquerade as government in Britain today do not seem to have learned from either of these sages. For they pile on us bad law after bad law. Their laws are so many and complicated that no-one can possibly know them all, let alone obey them all. In a legislative frenzy, they have invented hundreds of new "crimes.” They hem us about with ever more arbitrary regulations. They persecute whoever is the politically incorrect flavour of the month, for example fox-hunters, smokers or car drivers. They give police more and more powers to interfere in our lives. They want to force on us ID cards and DNA tests. And they prescribe severe fines and penalties for anyone who steps even slightly out of line.
The philosophy of today's laws seems to be that we are too weak and too wanton to govern our own lives. That we are not fit to take responsibility for our actions. That we need to be protected against our own foibles. That we need to be ordered about at every turn.
That we are also to be held strictly liable for any damage (real or presumed) we might be accused of causing, even if we are not in any way malicious, irresponsible or negligent. That it doesn't matter how much cost laws impose on us. And that it's OK for law makers and enforcers to treat innocent people as if we were criminals.
Worse yet is what these villains have done and are doing to law in the wider sense. They undermine the presumption of innocence. They threaten traditional safeguards like jury trial and double jeopardy. They agitate for indefinite detention or house arrest without trial. They claim such measures would only be used against terrorists, but who but a fool would believe them?
Meanwhile, they not only continue but expand their favourite pastime of "legally" draining us of our earned wealth. So putting all of us, however much we honestly earn, in danger of being left destitute in our old age. Much of what they take, they waste. And some they actively use against us. They use our own earned wealth as fuel for the leviathan through which they rule over us and try to impose their wills on us. Preserving and enlarging freedom? Pull the other one.
We need to re-claim the law. We need to make law and government work for good people, not against us. How might we do that? I invite you to consider how, when the lovers of tyranny have been removed from power, we might go about cutting law down to its proper size and function. I am thinking, here, in the context of English law. But I suspect that many of the reforms I suggest will have their counterparts in other systems of law.
The first step in re-claiming the law, I think, must be a negative one. That is, to quickly un-do the worst excesses of what the politicians and their cronies have done to us. I can see no better way to do this than simply to choose a past date, all laws made after which are to be repealed with immediate effect. If I were asked to pick such a date, I would suggest 1st April 1992. That would eliminate all laws made by New Labour, and all laws made by the Tories in their last term of office up to 1997.
I am well aware that this would mean – among much else – tearing up the European constitution and the Kyoto protocol, along with hundreds or thousands of European directives. But so what? They are political frauds. Couldn't the inhabitants of England survive – indeed, prosper – without them? It is law we need, not politics.
The second step in re-claiming the law is a specialist one. It is to distil the centuries of experience, which underlie English law, into a new, simplified law code. How this might be done is a good question. We might entrust the task to a single very eminent professor of law. Or to a committee of such greybeards. Or to several individuals or teams, working in free competition to produce the best code of law possible.
Without pre-judging this question, I think I can give some pointers as to what that law-book might be like.
First, how big will it be? I think it must be small. I suggest 100 pages at the maximum – under 40,000 words. So that anyone who wants to can carry a copy of it around, and refer to it whenever they feel the need.
Second, what will it contain? I think it will have two main parts. One on basic or non-criminal law, one on criminal law. Both will be concerned with principles, rather than with institutions.
The first part will set a framework for the resolution of disputes, and for mechanisms to compensate people who have been treated unreasonably. It will cover personal-law matters, like wills and marriages. It will include the essence of commercial and contract law, and of property law. It will cover torts, and restitution for objective damage caused, whether physical, financial, to the lifestyle or to the reputation.
I think it will also return to centre stage the idea of the reasonable man (and woman). It will reject strict liability. No-one will be liable to compensate unless they have been, in some way, irresponsible, negligent or malicious. Accidents, of course, will happen; but provided those involved have behaved reasonably, compensation for accidents will be a matter for insurance, not for law.
The criminal-law part, I expect, will begin with a list and description of fundamental crimes. Among such crimes might be: Murder. Assault, aggressive violence. Invasion of the home. Invasion of privacy. Theft, in all its forms. Malicious damage to property. Malicious obstruction. Fraud, malicious deception. Bullying or threatening behaviour. Molesting children. Knowingly aiding and abetting others' crimes.
All criminal acts – with two exceptions I will come to – will have something in common. That is to say, crime requires a mental state as well as an action. Criminal law will take account of the centuries-old idea of mens rea; no-one is guilty unless his mind is guilty. Otherwise put, no act can be a crime unless it is done with malicious intent, or such recklessness that a reasonable person would not contemplate doing it.
There are, I think, two exceptions, which lie in the borderland between non-criminal and criminal law. One is manslaughter. Because it does not involve mens rea, manslaughter should not strictly be a crime. However, because of the severity of its effects, traditional wisdom – rightly, I think – demands that it should be treated as if it were a crime.
The second exception is contempt of court, or failure to observe a judgement. This provides the escalation procedure, from penalties based on restitution, to criminal penalties, which may include punishment as well as restitution.
The law-book will not lay down specific penalties for specific offences. That, after all, is one of the things judges are for. However, it will set out the principle that the punishment for crime must always, taking account of the circumstances, be in proportion to the crime.
It will also specify the grounds on which criminal judgements should be based. For example, that a suspect must be presumed innocent until proved guilty. That any accusation must be tried without undue delay. That the accused is entitled to a full and fair hearing. That all judgements must be objective and impartial. That individuals may only be penalized if they are culpable beyond reasonable doubt. That it is better that ten guilty go free, than that one innocent is wrongly punished.
The third step is to correct the institutions, which implement the rule of law. I will base my suggestions on the Enlightenment model of government, in which powers are separated into three branches: legislative, executive and judicial.
Of course, political government today has more branches than just the Enlightenment ones. There is the Uncompetitive, providing generally low-quality services that aren't what we want. There is the Politically Corrective (also known as the Meddle Class), providing cushy bureaucrat jobs for those that like to use good-sounding ideals, like racial equality or health and safety, to interfere in people's lives – from a height. And there is the Kleptocracy, that drains us of our wealth to keep the political shebang going. Since none of these branches has anything to do with the kind of law that benefits good people, I will only say; the Uncompetitive has got to get competitive, and the others have got to go. So I will concentrate on the three valid branches of government: judiciary, executive, legislative.
The judiciary are today, so it appears, the least corrupt of the three. Therefore, they will suffer the least pruning. Indeed, they will be more important under the new system than the old. Nevertheless, any judge that makes judgements on grounds of political policy, rather than objective justice, must go. No more Judge Jeffreys!
The executive – enforcers of law, including the police – are another matter. While the best of them do a reasonable job, there are too many that seem to like enforcing bad laws. Too many of them like to pounce on anyone who is or might be breaking some arbitrary regulation that wasn't there just a few years ago. Those that were tasked with preserving and enlarging freedom, but failed in that task, will be pruned as they deserve.
It is, however, in the legislative that the worst problems lie. Indeed, the very existence of the Uncompetitive, the Meddle Class and the Kleptocracy is all the fault of the legislative, and those that greased their palms.
It is tempting to think that we might be able to get away without having lawmakers at all; that our law-book could suffice for ever. I think, though, that this view is short-sighted. The law has to be able to evolve to meet new situations.
But, to prevent today's legislative anarchy being repeated, the powers of the legislature must be strongly circumscribed. Except in clear case of emergency, I think meetings of the legislature should be restricted to – at maximum – two weeks each year. And that no-one should be allowed to be a member for more than – say – five years. By abolishing career politics, I think these two small changes alone would bring enormous benefits.
Here are some of the rules I think lawmakers of the future should be made to keep to. One, no law may be made with intent to harm any individual or group, or to treat anyone worse than they treat others. Two, no law may demean people by taking away their right to make and be responsible for their own decisions. Three, any proposed law must be shown to have benefits outweighing its costs, before it can come into force. These benefits must be objectively measurable. Four, every new law must be reviewed at least every year, to check that the benefits are exceeding the costs. And any law failing this test must be struck down immediately. Five, the law-book must never exceed 100 pages or 40,000 words. If lawmakers want to bring in a new law, and the law-book is full, they must take out an old one to make room for it.
Furthermore, I can see no reason to do away with traditions when there is nothing obviously better to replace them. Therefore, jury trial should be retained. If a case is too complicated for a jury to understand, it should not be brought. The double jeopardy rule, too, should stand.
And government must be seen for what it is – at best, a necessary evil. Government must never again be allowed to become a drain on, or a danger to, good people. It must never again violate any individual's fundamental rights, such as liberty or property, except in punishment for a crime of which that individual has been convicted, or to hold an individual for a short period prior to trial. (And, if they are found not guilty, they should be compensated for what was done to them). So safeguards against wrongful arrest, and provisions for compensating innocent people who suffer harm at the hands of government, should not be emasculated, but strengthened.
The fourth and final step in re-claiming the law is to bring justice to those concerned. To compensate those who have been harmed by bad laws, and to punish, with appropriate severity, those that have perverted the law.
All government officials that ever bullied innocent human beings must make redress to their victims. And those that stole our earned wealth must be brought to account. The wealth which was stolen, and wasted or used against us, must be repaid, together with interest and damages, to its rightful owners – those who fairly, honestly earned it.
What of those that perverted the law? Edmund Burke was right when he said that bad laws are the worst sort of tyranny. Those that lobbied for bad laws, those that polluted the mental climate to try to drum up support for bad laws, and those that made bad laws, are far worse than mere criminals. And when enough good people come to realize this – and that time, I think, is not so far off now – there will be quite a backlash.
When the Revolution (or is it the Renaissance?) comes, I don't think the prospects are going to be too rosy for those with a political record.