Don’t legislate from the hip
Civitas, 18 August 2011
Everyone is keen emphasise how the English riots change everything. But one of the worst things that the Government and policy-makers could do in reaction to the riots is overreact.
Riots are unpredictable. As the Stanley Cup riots in Vancouver just a couple of months ago demonstrate, remarkably aggressive street disorder can emerge for remarkably petty reasons. Canada is rich, egalitarian, highly developed and hasn’t suffered a bad recession. But losing a cup final was enough to get some incredibly well-dressed and well-fed Canadian citizens to riot. Being unpredictable, riots might take place in the context of countervailing social trends, like continually lower crime rates. They could be the sign of a society that has entered a moral decline. But it is unlikely: it only takes a few thousand individuals to wreak havoc across a city, and there will always be some who lack, either temporarily or permanently, the normal personal moral restraints that many of us take for granted. In fact, this is precisely why we require criminal sanctions to deter such behaviour, and why sanctions will always be required in some measure, regardless of the qualities of the rest of society.
This is not to argue that there are not serious social problems associated with the English riots, only that they were the same social problems before the riots, and continue to be after. They would have been the same social problems had the riots never taken place, and riots still happen occasionally even when few such social problems exist.
If riots are unpredictable, then the one thing we cannot afford is unpredictable law. What makes the law different from a mere command backed by force is that it provides legitimate expectations. People know what they are prohibited from doing, and have a good idea what the range of penalties for each offence is. To change penalties for particular crimes retrospectively, or to take away entitlements arbitrarily, would reduce the law merely to vengeance, which is precisely what it is meant to replace from more primitive societies. Chopping and changing laws on the hoof will only bring criminal justice into disrepute and make people feel less apt to treat it as authoritative.
In fact, much of what has taken place this week indicates that the criminal justice system can function even under great strain. The police responded with appropriate force after making a number of initial, understandable, errors. Magistrates courts have responded to the surge in cases by processing many more than usual and, for the most part, in ways perfectly in accordance with proper procedure. Without all that much intervention from politicians, the criminal justice system has responded to the emergency, arguably despite the interventions of politicians. There is a growing problem of prison over-crowding, but this is due to several governments (including the current one) being willing to run the prison system at or near capacity. This is problematic even in normal times as it inhibits rehabilitation. The difficulties associated with running prisons at capacity are hardly unknown. It would be one thing worth fixing.
The response could have been a lot worse than this. Rapid-fire legislation in reaction to the riots focusing on whatever the current political establishment wishes to blame could risk making future responses less proportionate, less effective and a greater risk to law and order than we have now.
But is that not what the law has become already over many decades: unpredictable, erratic, peevish etc? I am thinking here of vindictive penalties for thought crimes and speech etc. Sentencing lengths for nearly all crimes have become, in fact, random; from the tolerance of 70 acts of burglary to the recent 5 year sentence given for what any onlooker can see as silly, unmeant comments on a Facebook site. Then there are refusals to uphold illegal immigration laws. There are the changes to the planning laws. All of the above have, in different areas, removed tenets on which we assumed the law was based: fairness, equality, reciprocity; and also to administer sentencing in some way proportional to the seriousness of the crime according to an approximately consensus opinion. But this is gone and so, as far as I am concerned, the law has long been ‘eroded’: We are policed by thugs and in the 20th century courts are still presided over by wealthy old duffers in fancy-dress, perhaps confused by the conflicting ideologies that they need to pay homage to, aside doing their job. However, while the laws are now being made and administered more erratically than ever, there is a commonality; By and large, law changes consistently suit and serve our elite political class. For instance, the equality legislation protects the elite’s power from what would be a diffusive effect, of English nationalism and libertarianism. The EU is a wonderful career path for failed politicians, such as Kinnock. In the matter of the riots, the random acts of erratic revenge in our law courts help the politicians perpetuate the myth that they stand for ‘common sense’ and head off uprising at the pass. Plus, as any good scholar of Marx, Gramsci and Luckacs will quietly tell you, there is no better way to bully a people than administer acts of random cruelty.
The Vancouver riots are a poor example of the unpredictability of riots since Vancouver also had riots when the Canucks lost the Stanley Cup Finals in 1994 (http://en.wikipedia.org/wiki/1994_Vancouver_Stanley_Cup_riot). And, as people on the ground in Vancouver in 2010 would tell you, there was a sense of impending riots when Canada nearly lost the Gold Medal game.
In fact, the bulk of the criticism levelled at the Vancouver police was that this was so predictable.
But you are correct to suggest that Vancouver’s were middle class riots, which defy the convenient ’caused by poverty’ logic of the left.