Tuesday 31 August 2004

Criminal law & the Right.

Another post, another link to Crime & Federalism, who asks a good question:

Conservatives distrust the government to regulate almost every area of law. Why then do they love almost every criminal law? Why do they suddenly become 'law and order' when criminal laws are at issue, but not other government regulations?

(Note to UK readers: we're talking about American Conservatives here, not British ones, who, for all their historical alliance, are a quite, quite different kettle of wankers.)

Well, I've got a bunch of answers to this one. Firstly, Conservatives often say that the state's only legitimate job is to protect its citizens; everything else is outside their remit. You may or may not agree with that, but I think it clears any charges of hypocrisy over the law.

Secondly, criminal law generally has a lot less grey area and, therefore, scope for government interference and political manipulation than other areas of government regulation. Theft is easy to define: property belongs to one person; someone else takes it. Yeah, there are some cases of disputed ownership, but they're relatively rare. Same with murder: if you kill someone and it wasn't in self-defense (or, if you live in the UK, even if it is), that's murder. And murder and theft and fraud and rape don't tend to get redefined depending on who's in government right now — at least, not to that great an extent. If you commit a murder today, you're doing something that is illegal now and was equally illegal in 1800, while environmental building regulations, for instance, change every year or so. There's a strong argument that society benefits from its citizens' knowing the law, and it's easier to know the law when it stays the same. People don't steal or murder accidentally, but they do accidentally break all sorts of obscure regulations.

Then there's the Law of Unintended Consequences. Murder and theft and fraud have been illegal for centuries, so we know what a society that prohibits them looks like. With new laws, we really have no idea. When a law is going to have wide-ranging effects on society and we don't know what a lot of those effects are, it's right to be wary about it.

And, of course, a lot of conservatives don't want to see any new criminal laws. When we libertarians (who have a place in the American Conservative movement but not in the British one) talk about law & order, we mean that we want the existing laws to be enforced properly. Many of us think that the way to improve law & order is actually to reduce the number of criminal laws but to enforce them more strictly and consistently. These days, introducing new laws in the light of some disaster or atrocity has become the standard political reaction, even when those laws are totally unnecessary. The obvious example of this in the UK is the bannning of guns. Thomas Hamilton walked into a school and gunned down a load of kids. Yes, it was an appalling atrocity, and I for one wish the bastard hadn't shot himself so that we could have had the satisfaction of reintroducing the death penalty for him. But what seemed to be missed in the outcry was the somewhat obvious fact that murder is illegal. Hamilton knew it was illegal to shoot children, but he did it anyway. Yet campaigners seemed genuinely to believe that making it illegal to own a gun would somehow stop this sort of thing from ever happening again — that men who were perfectly willing to break the law prohibiting murder would balk at using an unlicensed weapon. And the result of the ban? Spiralling gun crime, unsurprisingly. There's nothing inconsistent about opposing excessive legislation, even criminal legislation, while wanting to see improved law & order.

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