THE LAST DITCH An Englishman returned after twenty years abroad blogs about liberty in Britain
Grief, loss and hope
Thoughts at year end

The uses of Law

In an interesting article in today’s Sunday Telegraph, Dan Hannan (arguably the British politician I least despise) makes some sensible points, which you can read yourself here

In the course of that he says indignation about #PartyGate is misplaced because, amongst other reasons, no-one strictly complied with last years COVID rules. Of the critics condemning the alleged “gathering” he says;

My point is not that they are hypocrites; it is that the rules are wrong. Laws that no one follows are, by definition, asinine laws. By all means blame politicians. But blame them for imposing these absurd prohibitions in the first place rather than for behaving like everyone else.

Hannan has a decent mind and sound instincts, but here he strikes me as naive. We tend to think of laws as rules proscribing bad behaviour or (less often) mandating good behaviour. Practising law for a few decades as I did will make a cynic of the best of us but even a politician should know there’s another use of law — to absolve a rule-maker of responsibility.

In the private sphere, if more of us read the “standard terms and conditions” we sign up to blind (often these days on a “click through” basis) when contracting for goods and services, we’d find rules the suppliers never plan to enforce. Their lawyers put them there to ensure that in myriad circumstances — foreseen and otherwise — where a problem might occur, their clients won’t be legally at fault.

If your child finds a website that encourages her to commit suicide for example, the company hosting it will point to a rule forbidding such use of its services. It didn’t make the rule so that it could enforce it. It has no employees combing its servers for breaches. It made the rule so it could point to it when your child dies. That’s a dramatic example, but there are millions of others to which you would probably say “fair enough.” Businesses couldn’t sell many goods and services economically if they were expected to take the blame for any wicked use of them.

The fact is that in the public sphere government uses law in similar ways to address what spin doctors call “the optics” of a situation. It feels that “something must be done” about a perceived harm and will often promote new legislation without even considering whether existing law covers the matter. How many of the thousands of new crimes created during and since the Blair years can you name? If it’s any consolation, I bet your MP can’t name any more than you.

The government didn’t make it illegal to visit your gran, hug your mum at your dad’s funeral or have sex with your new girlfriend with any expectation that you’d be so servile as to comply. It did it so that, if any of those ladies contracted COVID, it would be your fault. That’s why Number 10 staff partied, Cummings conducted motorised eye tests and Hancock and Ferguson shagged.

The intent of the law was neither proscriptive nor prescriptive but exculpatory. It was one rule for everyone, but no one was seriously (in those circles in the know) expected actually to comply. This is a subtler complaint than the angry “one rule for us and another for them” beloved of bar room ranters, but in its way it’s actually worse.

I have used this quote from Montesquieu so often that regular readers will be able to sing along in the original French;

If it is not necessary to make a law, it is necessary not to make a law.

He also said — and how this still resonates today;

There is no greater tyranny than that which is perpetrated under the shield of the law and in the name of justice

You’d expect a libertarian to be cynical about laws, but anyone should be able to see the damage that such “click through” criminalisation does to respect for Law itself. I suspect the British government was as surprised by the servility of its citizens as I was disgusted. I tremble to think of our future now that it realises how weak we mostly are.

That said, I hope the mishandling of the pandemic by democratic governments almost everywhere will lead even the most servile to an understanding that Law is a dangerous tool that is lethal when misused. Make too much of it too lightly and you make criminals of us all — with criminal attitudes to compliance rather like Captain Sparrow’s approach to the Pirate Code — or Dan Hannan’s approach to the Highway Code!


Feed You can follow this conversation by subscribing to the comment feed for this post.


" I tremble to think of our future now that it realises how weak we mostly are."

They've just voted for vaccine passes. Does anyone believe they will be temporary, or won't increasingly include more types of venue?

I hope that the turn out this coming Saturday outside Parliament is huge.


When did our parasitical lords refuse income? The point is *not* that it’s not really law. It is. I am addressing their primary motivation for making that law. My theory explains (a) why they are not frightened to break the rules themselves and (b) why Hannan thinks we’re wrong to criticise them on a “one rule for us” basis.

Lord T

An interesting theory but that is all it is.

I say this because they associated significant fines with these offences. I don't remember an individual or a business getting fined £6K or shutdown for not following instructions in one of these tick boxed click through notices. If they had said £5 per offence charged and no criminal record to the offender or something similar the Gestapo wouldn't have enforced it so rigorously.

As it was they were sending special squads out with drones to persecute people walking alone out in the wilds.

Brian, Follower of Deornoth

Ayn Rand had the right of it...

There's no way to rule innocent men. The only power any government has is to crack down on criminals. Well, when there aren't enough criminals, one makes them. One declares so many things to be a crime that it becomes impossible for men to live without breaking laws. Who wants a nation of law-abiding citizens? What's there in that for anyone? But just pass the kinds of laws that can neither be observed nor enforced nor objectively interpreted—and you create a nation of lawbreakers—and then you cash in on guilt.

Parliament has for many years promulgated new laws against ills which are already more than adequately covered by existing laws. It seems MPs consider this justifies their position.

Whilst obviously important in itself, rather more interesting from a political viewpoint is how quickly political power can drain away.

Johnson now has no effective political power whatsoever. No-one believes him at all, and a majority of voters consider him to be a charlatan..and they're right.

He is the same position as Major after Britain's ejection from the ERM; in office but not in power.

The comments to this entry are closed.