The uses of Law
Sunday, December 12, 2021
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!